Today was not a good day for the tobacco industry or certain other “mass tort” defendants and/or insurers involved with cancer claiming. Why? Despite opposition briefs from almost every major defense group in the US (see n.4), the Massachusetts Supreme Court today issued a unanimous opinion approving a tort claim to obtain medical monitoring using low dose CT scans to seek to find lung cancer very early for a class of people at meaningful risk of cancer due to many pack years of prior or current smoking of Marlboro cigarettes. See below for the elements of the claim.

The opinion also is noteworthy for two other reasons. First, it includes a ruling on when and how a defendant can win a statute of limitations defense. It will not be easy for the defense since the opinion to a large degree suggests a focus on what a physician has told the plaintiff. The opinion also includes a ruling to protect plaintiffs against splitting a cause of action. The latter ruling is that if cancer does manifest itself, the plaintiff can bring a new claim even if he or she already made a claim for medical monitoring. The opinion is is Donovan v. Philip Morris USA, Inc., — N.E.2d —-, 455 Mass. 215 (2009). Go here for my prior post predicting this type of outcome and providing data and facts on cancer that help to explain why this ruling will, over time, become quite important.

The elements of the approved medical monitoring claim are:

“In conclusion, each plaintiff must prove the following:

(1) The defendant’s negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint.”

Here are key excerpts from the opinion as to the Court’s rationale:

“Modern living has exposed people to a variety of toxic substances. Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure. Some people so exposed may never develop an illness or disease, but some will. Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring. Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff’s reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes. We leave for another day consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary although no symptoms or subclinical changes have occurred. Here, the physiological changes with the attendant substantial increase in risk of cancer, and the medical necessity of monitoring with its attendant cost, may adequately establish the elements of injury and damages.

Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. 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. See Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 977 (Utah 1993). When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort. No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change. Id. at 979-980. This should address any concern over false claims, see Payton v. Abbott Labs, supra at 552-555, yet permit a genuinely injured person to recover legitimate expenses without having to overcome insurmountable problems of proof in this difficult and complex area. In this respect, medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease. The expense of medical monitoring is thus a form of future medical expense and should be treated as such.”