The Lawletter Vol 40 No 2
If a defendant's negligence causes no physical injury, can a plaintiff recover damages for the expense of monitoring his or her medical condition? That was the issue addressed by the Nevada Supreme Court in Sadler v. PacifiCare of Nevada, 340 P.3d 1264 (Nev. 2014). In that case, the plaintiffs sued a health maintenance organization for negligently failing to oversee the quality of care provided by medical providers in its network. The providers allegedly used unsafe injection practices, potentially exposing the plaintiffs to the risk of contracting HIV, hepatitis, and other blood-borne diseases.
The specific issue in the case was not whether medical monitoring is an independent cause of action. Instead, the question was whether an award of damages for medical monitoring is a proper remedy in a negligence action where there is no present physical injury. The court first considered whether the economic loss rule, which precludes recovery for purely economic losses in an unintentional tort case, barred recovery. The court found that this principle did not apply, because the plaintiffs alleged an exposure to the risk of diseases, which is a noneconomic injury.
Next, the court considered whether the underlying injury must be physical in order to support a claim for medical monitoring damages. The court noted that no physical injury is required to support a claim of intentional infliction of emotional distress and that the definition of "injury" in section 7(1) of the Restatement (Second) of Torts is not limited to physical injury. The court also recognized that a significant number of jurisdictions have concluded that the costs of medical monitoring may be recovered, either as an independent claim or as a remedy for an established tort, even in the absence of a present physical injury. The court was particularly persuaded by the reasoning in the case of Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984), wherein the court held that an individual has a legally protected interest in avoiding expensive diagnostic examinations. The Sadler court concluded that the plaintiffs' negligence claim properly sought recovery of damages for medical monitoring even in the absence of present physical injury.