Private Law Theory

ABSTRACT
A tort claim for medical monitoring commonly involves product defects that have exposed plaintiff-consumers to a significant risk of suffering bodily injury, such as cancer, at some point in the future. To protect themselves, these consumers must undergo periodic, costly medical testing. In pursuing a claim for medical monitoring, a plaintiff-consumer seeks tort recovery for these financial expenses on the ground that the defect foreseeably caused them. Such a claim for economic loss runs afoul of the ordinary limitation of negligence liability to physical harms, and so courts and commentators are deeply divided about whether tort law should recognize the medical monitoring cause of action.

Three fundamentally different types of principles can justify the requirement of physical harm, none of which is tied to a contestable conception of tort law. The strongest case against the medical monitoring cause of action is based on the principle that physical harms are more important than economic losses and stand-alone emotional harms, thereby barring monitoring claims in order to prevent the diversion of scarce compensatory resources away from those who have suffered physical harms to those who have not. Applying this principle to monitoring claims, however, violates the equitable principle that it is better to prevent the irreparable injury of physical harm through the exercise of reasonable care instead of attempting to compensate it with the inherently inadequate damages remedy. This principle justifies obligating a negligent defendant to incur the financial expenses of medical monitoring that would reasonably reduce the risk of future bodily injury. Moreover, there is no principled reason to prioritize presently existing physical harms over future ones; each one merits equal treatment. Medical monitoring claims would be even more equitable, however, if a plaintiff’s recovery were reduced by any health insurance proceeds covering those costs, thereby maximizing the amount of a defendant’s financial resources for compensating those who are already physically harmed.

Geistfeld, Mark, The Equity of Tort Claims for Medical Monitoring (March 14, 2024), Southwestern University Law Review, Forthcoming; New York University School of Law, Public Law Research Paper Forthcoming.