Defense Digest

A New Twist On An Old Theory: Medical Monitoring Within The Context Of Medical Negligence Claims

Since the early 80s, plaintiffs have been bringing medical monitoring claims in mass tort negligence claims. Recently, plaintiffs have begun to use this theory against healthcare providers in cases where they have not sustained any cognizable injury, but instead, they have an increased fear of contracting a disease, such as cancer, based upon the alleged negligence of healthcare providers. Since plaintiffs are precluded from bringing suit against a physician for increased fear of contracting cancer, this is a new strategy to obtain relief without having to prove actual injury. In essence, plaintiffs have placed a new twist on an old theory in order to bring a medical negligence claim. This begs the question: what effect could these cases have upon the current medical malpractice crisis?

In Walter v. Magee Women's Hospital of UPMC Health System, 2005 PA Super 131; 2005 Pa.Super. LEXIS 859 (2005), Christine Walter and Sharon King brought a class action suit on behalf of themselves and other similarly situated women claiming that Magee-Women's Hospital intentionally misled and deceived the plaintiffs by issuing pap smear reports bearing physicians’ names, although the reports had not been reviewed by a physician. The plaintiffs further claimed that the reports had the signature of a pathologist when the slides had only been reviewed by a cytotechnologist. The plaintiffs claimed that as a result of Magee’s conduct, the tests purportedly reviewed by physicians may have been incorrect and cancer and other serious conditions may have gone undetected. The plaintiffs made a claim for medical monitoring, requesting re-screening of the pap smears by a qualified third party at the defendant’s expense to assure accuracy of the reports, identify errors, and assume proper follow-up care.

In order to prove a medical monitoring case, the plaintiff must prove the following elements: (1) exposure to greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant’s negligence; (4) as a proximate result of the exposure, plaintiff has significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonable and necessary according to contemporary scientific principles. Walter, 2005 PA Super at P8, citing Redland Soccer v. Dept. of The Army, 548 Pa. 178, 195-196, 696 A.2d 137, 145-146 (1997).

Prior medical monitoring cases include Redland Soccer v. Dept. of The Army, where the Supreme Court found that the Redland Soccer Club was entitled to a medical monitoring trust fund as a result of the Army’s disposal of hazardous materials in a local park used by the club. In Simmons v. Pacor, 543 Pa. 664, 678-679, 674 A.2d 232, 239 (1996), the Supreme Court denied recovery for increased risk and fear of cancer endured by asymptomatic plaintiffs exposed to asbestos-causing cancer but permitted the plaintiffs with asbestos-related, asymptomatic pleural thickening to recover for medical monitoring. However, in Walter, the plaintiffs did not have a medical condition as a result of Magee’s conduct and did not allege the occurrence of an event that caused a harmful effect upon their well-being.

Accordingly, the Walter defendants filed preliminary objections to the plaintiffs' complaint, arguing that the plaintiffs failed to demonstrate that they were exposed to a hazardous substance due to Magee’s alleged negligence. The Superior Court of Pennsylvania agreed with the defendant’s position and dismissed all claims against the defendants. In doing so, the court explained that "[t]he risk of these Plaintiffs suffering from cancer is the same as it was before the Plaintiffs underwent the Pap smear procedure. . ." Id. At P11. The court further held that "plaintiffs do not allege that they have suffered any harm whatsoever as a result of a physician’s name appearing on a Pap smear report . . . [T]he physical condition of the Plaintiffs was the same after the Pap smear had been performed as it had been before." Id.

The case goes to the very heart of the medical malpractice debate. Obviously, everyone’s main concern is affordable, good healthcare. Everyone can agree that if a mistake has been made, it should be corrected, and the injured party should be compensated. However, if there has been no cognizable injury, the case should not be permitted to proceed. The Walters case differs from the ordinary medical monitoring cases in that there was no hazardous substance involved. The plaintiffs attempted to claim that alleged fraudulently signed pathology reports were the same as being exposed to industrial waste. However, there is no comparison. Clearly, hazardous waste can cause various medical conditions. A fraudulent physician’s signature causes nothing but lack of trust in the medical profession. There is no legally recognizable cause of action for lack of trust.

If the court allowed this case to proceed, it would cause more harm than good. It would lead to terminate the trust that still exists between patients and their physicians and hospitals. If this case were to proceed, it would lead to a domino effect where patients would believe that they could bring suit for the fact that their physicians did not sign their chart. In order to combat the current medical malpractice crisis, it is crucial that we recognize these attempts to twist old causes of action into new areas and we make distinctions so that they are not permitted to proceed.

*Michele, an associate, works in our Pittsburgh, PA office. She can be contacted via email at mprimis@mdwcg.com or via telephone at (412) 803-1195.