Medical Monitoring Cause of Action
In recognizing a medical monitoring cause of action in a fen-phen case, the Appellate Court of Florida explained the difference:
An action for medical monitoring seeks to recover only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm, where as an enhanced risk claim seeks compensation for the anticipated harm itself, proportionately reduced to reflect the chance that it will not occur. . .
Petito v. A.H.Robins Co., Inc., 1999 Fla, quoting Redland Soccer Club, Inc. v. Dep't. of the Army, 696 A.2d 137 (Pa. 1997).
. . . the injury in an enhanced risk claim is the anticipated harm itself. the injury in a medical monitoring claim is the cost of the medical care that will, one hopes, detect that injury. the former is inherently speculative because courts are forced to anticipate the probability of future injury. the latter is much less speculative because the issue for the jury is the less conjectural question of whether the plaintiff needs medical surveillance. Petito, supra, quoting In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 850-51 (3d Cir. 1990).
the Florida court in Petito agreed with the Supreme Court of New Jersey that the implementation of and supervision over a medical monitoring fund is well within a court's equitable powers.
Petito, citing Ayers v. Township of Jackson, 525 A.2d 287 (N.J. 1987). the Florida court further determined that public policy actually favors this result in fen-phen cases where the demonstrable 25% to 30% risk of developing serious heart valve disease is exceptionally high.
The potential liability of a defendant is likely to be limited by the commencement of such a fund, as there is sufficient evidence to suggest that early detection may lessen the heart damages that a plaintiff would otherwise ultimately suffer from exposure to the drugs.