The NAM joined with 7 other business groups in urging the Oregon Supreme Court not to recognize a claim seeking medical monitoring when there is no showing of injury. The case involves a claim on behalf of a class of Oregonians who have smoked the equivalent of one pack of cigarettes a day for five years or more and who have not been diagnosed with lung cancer. The plaintiff sought a court-monitored program of medical monitoring, smoking cessation and education, and attorney's fees.
Traditional tort law requires that a plaintiff have some injury before he or she may file suit for damages, including the cost of medical treatment or monitoring. There should be no recovery based on the mere possibility of a future injury. If such a remedy is to be provided, the legislature should make that decision, considering all the daily situations that might lead some to seek medical monitoring and the ramifications for the economy. Medical monitoring claims would create the opportunity for abuse, would burden the courts, and have been rejected by many other courts, including the Supreme Court.
On May 1, 2008, the Oregon Supreme Court affirmed the lower court, rejecting the medical monitoring claim. It ruled that the threat of physical harm in the future is not sufficient harm to bring suit now. The court also rejected the theory that the cost that plaintiffs incurred to undergo medical monitoring on their own was an injury. Purely economic losses, without actual injury to a person or his or her property, are not actionable, said the court. Oregon joins a significant number of other states in rejecting medical monitoring claims without injury. Since 1999, only Missouri and West Virginia have allowed such claims.