COURT OKAYS MEDICAL-MONITORING CLAIMS

Proclaiming that tort law “must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent,” a landmark ruling from the Supreme Judicial Court of Massachusetts approved medical-monitoring claims in October.

“When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance,” the high court concluded, “the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.

“No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change.”

Moreover, “medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease.

“The expense of medical monitoring is thus a form of future medical expense and should be treated as such.” Donovan v. Philip Morris USA, Inc. 455 Mass. 215 (October 19, 2009).

A group of plaintiffs who alleged that they smoked or still smoke Marlboro cigarettes, but do not have lung cancer, filed a class action in federal court demanding a “court-supervised program of medical surveillance for early detection of lung cancer utilizing a technique known as low-dose computed tomography (LDCT) scans of the chest.”

The district judge asked the Massachusetts high court whether the complaint alleged a valid claim under local tort law.

Here are highlights of the Supreme Judicial Court’s ruling (with omissions not noted in the text):

The plaintiffs allege and argue that they seek not a remedy, but a court-ordered, court-supervised program of medical surveillance for early detection of lung cancer utilizing LDCT scans.

They further contend that without this program they have no adequate remedy at law, and that injunctive relief establishing such a program is necessary.

No class has been certified, and the first certified question asks only if the complaint states a cognizable claim under Massachusetts law. We therefore consider the question in the context of a dispute between two individuals, and leave the idea of a “program” to consideration of the question of class certification.

We address only the named plaintiffs and their individual claims.

We conclude that the plaintiffs have stated a claim under Massachusetts law for future medical expenses that may be satisfied by an adequate remedy at law.

The plaintiffs argue that they have sustained a present injury in the form of objectively observable and identifiable damage to the tissues and structures of their lungs resulting in a substantially increased risk of cancer, and that this injury was caused by Philip Morris’s negligence in the design and manufacture of Marlboro cigarettes.

They further argue that, under traditional tort principles, this injury entitles them to present and future medical expenses, which they have styled “medical monitoring,” to ascertain whether they have in fact contracted cancer.

Philip Morris contends that the plaintiffs have not established the essential element of a manifest physical injury, that is, physical harm manifested by objective symptomology.

The elements of a claim of negligence, generally, are (1) negligence, that is, the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances; (2) the causal connection between the defendant’s negligence and the plaintiff’s injury or damage; and (3) damages. See Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006).

“’Damages’ is the word which expresses in dollars and cents the injury sustained by a plaintiff.” Turcotte v. DeWitt, 333 Mass. 389, 392 (1955). Injury and damages are the focus of the parties’ briefs.

At trial the plaintiffs will have the burden of proving each element of a negligence claim by a preponderance of the evidence.

Negligence in the abstract does not support a cause of action. A negligence action may not be maintained unless one has suffered injury or damage.

Under our law of negligence injury and damages are integrally related: there can be no invasion of the rights of another unless legal damage is caused, and for that reason nominal damages cannot be recovered.

Generally, the measure of damages in negligence for personal injury is fair compensation for the resulting injuries, which includes pain and suffering; reasonable expenses incurred for medical care and nursing in the treatment and cure of the injury; diminution in earning capacity; and pain and suffering and such medical expenses and diminution in earning capacity as are shown to be reasonably probable to continue in the future.

With respect to future damages, a plaintiff is entitled to compensation for all damages that reasonably are to be expected to follow, but not to those that possibly may follow, the injury which he has suffered.

He is not restricted to compensation for suffering and expense which by a fair preponderance of the evidence he has proved will inevitably follow. He is entitled to compensation for suffering and expense which by a fair preponderance of the evidence he has satisfied the jury reasonably are to be expected to follow, so far as human knowledge can foretell.

There are many cases where the suffering and expense following an injury cannot be foretold with exactness. The fact that suffering and expense cannot always be foretold with exactness is a fact which the jury have to deal with in determining what suffering and expense reasonably will follow as distinguished from what possibly may follow.

Future damages must be reduced to an amount as of the date of the filing of the complaint.

The plaintiffs are not suing for pain and suffering or diminution of earning capacity. They have not contracted cancer, and they do not allege they are likely to contract cancer in the immediate future as a result of the alleged negligence of Philip Morris.

The plaintiffs do not ask us to extend the holding in Matsuyama v. Birnbaum, 452 Mass. 1 (2008), which recognized loss of chance as a theory of injury in a wrongful death action based on medical malpractice, or recognize increased risk of cancer as a basis for rewarding the full range of tort damages.

It is important to realize that the plaintiffs are suing only for medical expenses reasonably to be incurred because of the alleged negligence of Philip Morris.

In its simplest and most straightforward form, the plaintiffs’ complaint seeks only present and future medical expenses for diagnostic LDCT scans to determine the onset of cancer at the earliest practicable time for the purpose of maximizing the effective treatment of the disease.

These damages are indeed the only presently provable damages for the impact these plaintiffs have suffered as a result of the alleged negligence of Philip Morris.

Philip Morris contends that our jurisprudence requires proof of physical harm manifested by objective symptomology as a necessary part of damages.

We disagree.

This requirement applies to claims of negligent infliction of emotional distress, as a safeguard against false claims. See Payton v. Abbott Labs, 386 Mass. 540 (1982).

The plaintiffs do not seek damages for emotional distress. They are seeking only reasonable medical expenses for diagnostic tests.

There can be no doubt that an infant negligently and violently shaken by someone may recover expenses for diagnostic tests determined to be medically necessary under the standard of care to ascertain whether the child suffered a brain injury, even if those test results are negative.

Similarly, a pedestrian negligently struck by a (non “no-fault”) motorist may recover expenses for diagnostic tests determined to be medically necessary under the standard of care to ascertain the existence of internal injuries absent any external injuries, even if those tests produce negative results.

In those instances outward manifestations of physical harm would not be required.

In the instant case the plaintiffs have produced sufficient proof of “impact” to safeguard against false claims: they have proffered evidence of physiological changes caused by smoking, and they have proffered expert medical testimony that, because of these physiological changes, they are at a substantially greater risk of cancer due to the negligence of Philip Morris.

Modern living has exposed people to a variety of toxic substances. Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure.

Some people so exposed may never develop an illness or disease, but some will. Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring.

Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff’s reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes.

We leave for another day consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary although no symptoms or subclinical changes have occurred.

Here, the physiological changes with the attendant substantial increase in risk of cancer, and the medical necessity of monitoring with its attendant cost, may adequately establish the elements of injury and damages.

Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces.

We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent.

When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort.

No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change. This should address any concern over false claims, yet permit a genuinely injured person to recover legitimate expenses without having to overcome insurmountable problems of proof in this difficult and complex area.

In this respect, medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease.

The expense of medical monitoring is thus a form of future medical expense and should be treated as such.

In conclusion, each plaintiff must prove the following.

(1) The defendant’s negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.

Proof of these elements usually will require competent expert testimony.

We address a related issue. The very nature of this type of action raises the question whether the “single controversy rule,” which requires a party to include in the action all related claims against the opposing party, would bar a future action for damages in the event a plaintiff subsequently contracts cancer.

This rule was never intended to address the problem of toxic torts, where a disease may be manifested years after the exposure.

In this context, the rule acts as a deterrent to persons seeking early detection of catastrophic disease, and it would expose both plaintiffs and defendants to far more serious consequences should the disease later manifest itself in an advanced stage. Such a result makes no sense.

Finally, as the Supreme Court of New Jersey noted, the single controversy rule would not apply because the subsequent cause of action would not accrue until the disease is manifested. See Ayers v. Jackson, 106 N.J. 557 (1987).

For these reasons we conclude that, in the context of toxic torts, the single controversy rule does not bar a subsequent action for negligence if one of these plaintiffs actually contracts cancer.