The NAM and 9 other organizations filed an amicus brief urging the Mississippi Supreme Court not to allow medical monitoring claims by asymptomatic plaintiffs. A fundamental principle of tort law has been that a plaintiff must have a present, actual injury to obtain a recovery. Allowing claims that would require a company to pay for medical tests for someone who may never have been injured by exposure to a hazardous substance will foster litigation and divert resources from those who actually do have injuries. These policy decisions should be left to the legislature.
Medical monitoring claims are arising with some frequency in various states. The NAM is lending its support to the overall business community effort to keep tort law claims within their traditional, and reasonable, boundaries.
On January 4, 2007, the Mississippi Supreme Court refused to recognize a cause of action for medical monitoring in the absence of a present injury. It ruled that, unless the defendant engaged in "outrageous" conduct, a physical injury is a necessary element of a negligence claim, and none of the plaintiffs alleging exposure to beryllium have suffered one. Recognizing a medical monitoring claim would be akin to recognizing a claim for fear of future illness.
At the same time, the court reserved the right to consider policy arguments in ruling on such issues. It also reserved the right to create (or discontinue) tort remedies under the common law even when the state legislature has not acted.
Nevada, Alabama, Kentucky, and Michigan have also recently rejected medical monitoring claims.