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Medical Monitoring: A Recent Ruling in New York

By Diane Fleming Averell and Pamela R. Kaplan
October 02, 2014

Editor's Note: When a patient takes a medication that does not at first appear to harm him but that could cause later-developing consequences (think Fen-Phen, for example), or when a medical error is made that causes no immediately measurable harm but that could lead to future injury (think overexposure to radiation), is a medical monitoring remedy available? The following article discusses one state high court's recent analysis of the issue.

Courts typically treat medical monitoring as a potential remedy for a traditional tort claim. In such cases, plaintiffs allege exposure to toxic substances as a result of a defendant's tortious conduct; yet at the time the action is commenced, plaintiffs are asymptomatic and allege no physical injuries. Their alleged “injury” is a presumed increased risk of developing a disease, along with the financial burden associated with periodic medical monitoring.

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