The comforting belief that regular screening for illnesses is unquestionably beneficial came under attack in 2009. First the health care reform dialog introduced the idea that in the face of ever-advancing technology, the risks of frequent medical screening–false positives, unnecessary treatment, wasteful spending, patient anxiety–sometimes outweigh the benefits.

Then in October, a New York Times story made waves by quoting Dr. Otis Brawley, chief medical officer of the American Cancer Society. “We don’t want people to panic,” Brawley told the newspaper. “But I’m admitting that American medicine has overpromised when it comes to screening.”

On the heels of that statement, in November the U.S. Preventive Services Task Force released–to both outrage and confusion–new, less stringent recommendations on breast cancer screening. Just days later, the American College of Obstetricians and Gynecologists made a similar announcement regarding cervical cancer screenings.

“For many years we’ve been told that early detection and screening are good, so courts and juries come in with the preconception that medical monitoring must be a good idea,” says Sean Wajert, co-chair of the mass torts and product liability practice at Dechert. “But as more attention is focused on the costs and benefits of screening, the notion that medical monitoring can in some cases do more harm than good will influence the debate in legislatures, jury rooms and court houses.”

Partly in reaction to the 1997 Supreme Court case Metro-North Commuter Railroad Co. v. Buckley, which rejected medical monitoring as a claim under federal common law, the popularity of medical monitoring as a litigation remedy has cooled as well. But plaintiffs lawyers are still pursuing screening programs on behalf of their clients, and recently the Supreme Judicial Court of Massachusetts (SJC) bucked the anti-screening trend to hand down a rare opinion serving as a reminder that in some states, claims for medical monitoring can still overcome a motion to dismiss–even if the plaintiffs cannot prove current injury.

Crafting a Claim

Kathleen Donovan filed a negligence action in the U.S. District Court in Massachusetts against Philip Morris in December 2006. The suit was on behalf of a putative class of current and former heavy Marlboro smokers in Massachusetts with no diagnosis or suspicion of lung cancer. The plaintiffs sought no monetary damages. Instead, they wanted a court-supervised, Philip Morris-funded screening program relying on low-dose CT scans for early detection of lung cancer, which can dramatically improve survival rates. Philip Morris filed a motion to dismiss with the federal district court, which certified to the SJC two questions it answered in an Oct. 19 order.

In Donovan v. Philip Morris, the SJC rejected Philip Morris’ motion to dismiss, which made the common defense against medical monitoring claims–that plaintiffs must show present injury to bring tort claims.

“Plaintiffs in medical monitoring cases have gone in three different directions in recognizing that they don’t have traditional physical injury–that I have subclinical harm that can be demonstrated, that I’m at increased risk of a future disease and that’s my injury, or that I need medical monitoring because it’s the standard of care,” Wajert says. “In many jurisdictions they choose one argument, but in Massachusetts the plaintiffs argued all three and the court said you have to have all three.”

Now in Massachusetts if a plaintiff can show the elements above, the plaintiff can bring a claim for medical monitoring.

High Tech

In its opinion, the court said that tort law needs updating to conform to current medical knowledge about subclinical or subcellular damage.

“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,” Justice Francis Spina wrote.

Tim Coughlin, chair of the mass and toxic tort group at Thompson Hine, expects to see plaintiffs invoke the subclinical or subcellular standard more and more. “Defendants and counsel have to be aware of the developing science and the use that people may make of that science,” he says.

The SJC again cited the subclinical standard when addressing the statute of limitations for the Donovan plaintiffs. Philip Morris argued that even if cognizable, the claims were untimely because the plaintiffs knew they were at increased risk of lung cancer at least four years prior to filing. The court rejected that argument.

“Because the harm involves subclinical changes … notice most likely will take the form of advice by a physician, together with a recommendation for diagnostic testing,” Spina wrote, identifying the moment the statute of limitations starts to run.

Although the Donovan plaintiffs have cleared those two hurdles, they face plenty of uncertainty in the legal fight ahead. Still pending is the plaintiffs’ motion for class certification, which the SJC didn’t rule on. “That is very, very hard,” says William A. Ruskin, a member at Epstein Becker & Green. “I can’t think of a single case where a class action has been certified for medical monitoring recovery.”

Plaintiffs have always taken the view that medical monitoring is especially appropriate for class action treatment because of the common issue of exposure to the defendant’s substances, but the debate continues.

“Those jurisdictions where they do recognize medical monitoring have been struggling over the last couple of years with this issue of whether in fact it’s appropriate to treat it as a class action,” Wajert says. He has doubts regarding the Donovan plaintiffs, especially considering the individualized nature of the elements that Massachusetts plaintiffs must meet as the SJC outlined.