A Review of Recent Medical Monitoring

Courts have historically been divided over several key elements with respect to what a plaintiff must prove to support a claim for medical monitoring. For example, some courts have allowed medical monitoring as an independent cause of action, while others only permit it as an element of damages. See Badillo v. Am. Brands, Inc., 16 P.3d 435, 438, 440 (Nev. 2001) (recognizing medical monitoring as a remedy rather than a cause of action); Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 433 (W. Va. 1999) (medical monitoring may proceed as an independent cause of action if a plaintiff can demonstrate “a significantly increased risk of contracting a particular disease”). In this article, we review recent decisions regarding medical monitoring and assess whether there has been any consensus among the courts as to whether an actual, present physical injury is required to support a medical monitoring claim and whether class certification is appropriate for medical monitoring claims.