Court OKs Medical Monitoring Suit by Smokers

The Boston Globe reports that Massachusetts’ highest court has given the green light to a lawsuit by three smokers who are seeking to force Philip Morris to pay for medical monitoring to detect lung cancer.

According to the lawsuit, Philip Morris negligently manufactured cigarettes containing carcinogens that put the plaintiffs at increased risk for lung cancer. In a unanimous decision, the Supreme Judicial Court held that the plaintiffs need not show that they already have an injury to receive medical monitoring.

…medical monitoring expense is the plaintiffs’ only arguably provable damages. They could not have sued for pain and suffering or lost earning capacity. This is not a case where plaintiffs recovered damages for pain and suffering, lost earning capacity, but only some medical expenses based on existing medical technology. These plaintiffs, or so they allege, had absolutely no remedy until LDCT technology appeared. If they can establish these circumstances, which are unusual and perhaps unique to medical monitoring claims, then their claims are timely. This is a question that cannot be resolved on the record before us; it must be resolved on a motion for summary judgment or, if genuine issues of material fact remain, by a jury. The plaintiffs also must show that the standard of care of the reasonable physician did not call for monitoring of any precancerous condition prior to the statute of limitations period, not just that the technology at that time was less effective for monitoring.

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