Del. SC's stance on medical monitoring debated

PHILADELPHIA (Legal Newsline) - A brief filed with the U.S. Court of Appeals for the Third Circuit says the Delaware Supreme Court would not recognize a claim for medical monitoring.

The amicus brief, filed by business groups, says the court would reject the theory, which leads to a defendant having to pay the costs of medical tests despite the absence of a physical injury.

A federal court has decided that Delaware law should apply to federal cases against A.I. DuPont Hospital for Children in Wilmington.

"The Supreme Court of the United States and a 'super majority' of state supreme courts to consider the issue over the past decade -- the Alabama, Nevada, Kentucky, Michigan, Mississippi, New Jersey and Oregon supreme courts -- as well as numerous other state and federal courts have rejected medical monitoring absent a proven physical injury," the brief says.

"The Delaware Supreme Court would follow the guidance of these courts and reject a cause of action for medical monitoring... First and foremost, adoption of such a cause of action would mark a major substantive change in Delaware law. The Delaware Supreme Court has repeatedly affirmed the need for a physical injury in tort cases."

Cardiologists at the hospital implanted a covered stent that was not improved by the Food and Drug Administration while trying to repair a congenital heart defect.

Supreme courts in Massachusetts, Missouri, Pennsylvania, Utah and West Virginia have all allowed medical monitoring as a form of relief.

U.S. District Judge R. Barclay Surrick predicted in early 2009 that the Delaware Supreme Court would allow a medical monitoring claim.

"In this case, several considerations militate in favor of allowing Plaintiff to proceed with a medical monitoring claim," Surrick wrote.

"It is undisputed that Plaintiff has a Class III medical device in her body. Moreover, it is undisputed that the device did not have premarket approval from the FDA at the time the Medical Defendants implanted it in Plaintiff and was thus considered an 'adulterated' device.

"Plaintiff had contact with the adulterated device. Indeed, it remains in her body."

The U.S. Chamber of Commerce is one of the organizations that joined in the amicus brief. The U.S. Chamber Institute for Legal Reform owns Legal Newsline.

Others joining in the brief include the American Tort Reform Foundation, the Pharmaceutical Research and Manufacturers of America and the Coalition for Litigation Justice.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.