Judicial Activism

William Mitchell Law Review, Volume 27, Issue I
Medical Monitoring: A Viable Remedy For Deserving Plaintiffs or Tort Law’s Most Expensive Consolation Prize?

Arvin Maskin, Konrad L. Cailteux and Joanne M. McLaren

EXCERPTS

Page 535 and 536
West Virginia, however, recently branched out from the path of "relative consensus" on this issue, expressly permitting courts to take the subjective concerns of the plaintiff into account in determining what tests are reasonably advisable. Thus, plaintiffs in West Virginia courts can recover for prohibitively expensive diagnostic testing that a doctor would not ordinarily recommend, and are then free to spend the money on other purposes, merely because they express unassauged fears about their future health.

This dilutes the medical monitoring standard too far, hopelessly confounding it with the fear-of-future-illness cause of action. The medical monitoring remedy is designed to reimburse plaintiffs for reasonable medical diagnostic examinations - what is or is not reasonable should be ascertained by an expert with appropriate medical knowledge, uninfluenced by a plaintiff with no medical experience.”

Page 540
The Bower court is certainly anomalous in permitting recovery in the absence of a currently available treatment for the feared disease. Because such an approach is so clearly inconsistent with the articulated goals of medical monitoring, courts in future cases should not follow the lead Bower offers.

Medical monitoring is intended to provide plaintiffs with an opportunity to seek treatment for diseases where early detection may be beneficial. Where no treatment exists, early detection simply is of no benefit. The alleged benefits identified by the Bower court of making peace with loved ones and religion are spurious at best. Most people do not have the luxury, if indeed it is one, of knowing with precision when they are going to die. Allowing plaintiffs this highly questionable luxury would put them in a position that it is likely they would not have enjoyed but for their medical monitoring award, seemingly at unfair expense to defendants. Refusing medical monitoring expenses where no treatment exists seems to be a fairly logical way to limit potentially huge awards to plaintiff classes while still providing medical examinations to those for whom they would be beneficial.

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