Does this make sense? Local businesses have to pay for regular check-ups for disease for people who live nearby – even though these people are not injured and are not likely to become ill. Allowing courts to impose such orders subverts fundamental principles of American law.

 

The Michigan Supreme Court deserves praise for its recent ruling in Henry v. Dow Chemical Company, where it refused to condone such a practice. The five justices signing onto the majority opinion refused to legislate from the bench to create a new type of legal claim like the one described above: medical monitoring absent present physical injury. Their ruling respected the constitutional principle of separation of powers. The court explained that it was for the Michigan Legislature, not the court, to decide whether to create a claim that would be “a new and potentially societally dislocating change to the common law.”

 

A basic theory of personal injury law is that liability should be imposed only when an individual is actually injured. This rule is sound. It provides an objective standard and will preserve money for those who are truly

harmed.

 

Nevertheless, personal injury lawyers have increasingly tried to push beyond the bounds of the law and persuade courts to allow plaintiffs who are not hurt to sue for ongoing medical testing. Some jurisdictions accepted this cause of action early on, but the clear trend is that courts will not allow medical monitoring absent present physical injury. The Michigan Supreme Court is the fourth state supreme court in a row to reject this new cause of action, joining the supreme courts of Kentucky, Alabama and Nevada.

 

The Michigan Supreme Court’s opinion clearly explains why courts are refusing to let plaintiffs bring this type of claim. The case was filed by people living and working near a Dow Chemical Company plant in Michigan. The 173 plaintiffs alleged they were exposed to dioxin from the plant operations and asked for medical monitoring, even though Michigan law did not recognize this as a legal claim. They also asked the trial court to let the case to proceed as a class action, potentially involving thousands of class members. Dow asked the trial court to dismiss the medical monitoring claims, but the court refused. The Michigan Supreme Court reversed the trial court’s ruling and directed it to enter summary judgment in Dow’s favor.

 

As the Michigan Supreme Court recognized, many public and private interests had to be considered in deciding whether to create a new medical monitoring cause of action. For example, medical monitoring may provide benefits in some instances but not in all of them. Ill-considered monitoring might deter diseased people who are erroneously given a clean bill of health from returning promptly when their symptoms start to appear. Healthy people who are erroneously diagnosed with a disease may develop psychological problems.

 

Allowing uninjured people to recover would create a potentially limitless pool of plaintiffs, clogging court dockets and “drain[ing] resources needed to compensate those with manifest physical injuries and a more immediate need for medical care.”

 

Administering a medical monitoring trust fund would strain court resources. On the other hand, plaintiffs could easily spend a lump-sum award on a new car or flat-screen television instead of on medical monitoring. Courts have little expertise or objective guidance on how to set up medical monitoring programs, and would be “craft[ing] public policy in the dark.”

 

The Michigan Court decided not to create this potentially problematic new cause of action, explaining that “the people's representatives in the Legislature ... are better suited to undertake the complex task of balancing the competing societal interests at stake.” Its decision was the right one. There are significant public policy choices associated with medical monitoring that courts cannot resolve in the context of private litigation. Michigan residents, employers and workers should be able to rely on the fact that an well-informed Legislature that is accountable to their wishes will be allowed to make the right decision.