Medical Monitoring and New York Pharmaceutical Litigation

One hurdle around medical monitoring that New York City pharmaceutical litigation lawyers have to overcome is the "need for medical testing,” which divorces New York tort law from one of its fundamental tenets that only those who have been injured can seek relief. Another hurdle is proving causation and conduct:
Causation: Must show that a defendant acts caused individual plaintiff to have a significantly increased risk of contracting serious latent diseases from drug exposure, thereby showing the need for medical monitoring.

Conduct. Must show what the defendant knew or should have known about the adverse health risk from drug exposure over time. And what the defendant’s actions with respect to warning consumers about the adverse health risks were throughout the relevant period.

Pharmaceutical Litigation in New York

Pharmaceutical litigation lawyers in New York are bringing forth medical monitoring claims or drug exposure alleging that their clients are at an increased risk to contact a future injury due to that drug exposure. While their clients admittedly do not suffer from any current injury, they seek medical testing to detect future injury or disease at the earliest possible moment to maximize the chances of beneficial treatment or cure.

What has New York pharmaceutical companies worried isn’t an individual claimant seeking medical monitoring for a future side effect they do not yet have, it’s the cost of periodic medical testing over the course of thousands of claimants' expected life spans. This scenario can generate huge damages for pharmaceutical companies. As much as in any type of tort litigation, the transition from individual claims to class action status fundamentally alters the New York City pharmaceutical litigation landscape and dramatically raises the stakes for drug exposures.

Some jurisdictions, such as New York City, recognize medical monitoring as a cause of action and merely a compensable item of damage for future consequences of past or present potentially harmful impacts caused by the pharmaceutical company. And in such New York cases, have imposed a version of the following requirements:
  • An element of significant exposure.
  • Exposure to a proven hazardous substance.
  • A causal link with the tortious conduct of the defendant.
  • A significantly increased risk of contracting a serious latent disease.
  • A resulting reasonable necessity for the New York claimant to undergo periodic diagnostic testing different from that normally recommended in the absence of the exposure.
  • The existence of monitoring procedures that make early detection of the disease possible.

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