Reimbursement for Medical Monitoring Costs Now Allowed in Maryland

Published on May 5, 2013 at 2:35 pm in General Blogs.

Maryland’s top court recently determined for the first time that damages can be awarded for the costs of medical monitoring when a plaintiff has been exposed to a toxic substance by a defendant’s tortious act. Recovering for medical monitoring costs help enforce the common law principle that a defendant must compensate a plaintiff fully for past or present injuries caused by the defendant’s conduct, the court noted.

“In sum, we hold that Maryland recognizes a remedy of recovery for medical monitoring costs resulting from exposure to toxic substances resulting from a defendant’s tortious conduct,’ the Court of Appeals said in Exxon Mobil v. Albright, et al., a case stemming from a lawsuit filed by 466 Jacksonville, Maryland homeowners and businesses that sued the fuel giant after the discovery that 26,000 gallons of fuel had leaked from an underground storage tank. The area is dependent on private wells. Exxon discovered contamination in 10 wells and eight wells had levels above the Maryland Department of the Environment (MDE) action level for drinking water.

The decision brings Maryland courts in line with several jurisdictions that have already held in favor of recompense for the costs of medical monitoring as well as a 1997 decision by the United States Supreme Court.

To obtain an award for recovery for medical costs, a plaintiff must show that reasonable medical costs are necessary due to a reasonably certain and significant increased risk of developing a latent disease as a result of exposure to a toxic substance. In awarding relief, a court must consider whether the plaintiff has shown: (1) that the plaintiff was significantly exposed to a proven hazardous substance through the defendant’s tortious conduct; (2) that, as a proximate result of significant exposure, the plaintiff suffers a significantly increased risk of contracting a latent disease; (3) that increased risk makes periodic diagnostic medical examinations reasonably necessary; and (4) that monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.

Such a determination seems to turn on expert testimony. To determine what is a “significantly increased risk of contracting a latent disease” for a particular plaintiff, the court may consider expert medical testimony that indicates the plaintiff’s chances of developing the disease had he or she not been exposed, compared to the chances of the members of the public at large of developing the disease.

But, while making new law, the plaintiffs in this instance did not meet the legal standard for making a successful claim for medical monitoring damages. Although the trial court had allowed their claim for the damages to be presented to the jury, the Court of Appeals reversed. Specifically, the top court said, the homeowners and businesses with no detected contamination had not sufficiently demonstrated they were exposed significantly to a proven hazardous substance, as a result, they could not recover damages for medical monitoring. In addition, the court pointed out, that in its discussion of emotional distress damages for fear of contracting cancer individuals are exposed routinely in everyday life activities to methyl tertiary-butyl ether (MTBE), a chemical additive to motor fuel and formaldehyde. Thus, those plaintiffs with no demonstrated exposure exceeding the MDE action levels for MTBE and/or benzene, a constituent of gasoline and a known human carcinogen, were no more at risk of developing a latent disease from the contaminants than the average person – much less suffer a significantly increased risk of developing disease. “We therefore reverse these judgments,” the court said.

As to the remaining plaintiffs, whose potable wells tested at or above the relevant state action levels for benzene and/or MTBE, the court said they had to present expert testimony quantifying the risk of developing a latent disease. Specifically, the expert must have indicated a particularized, significantly-increased risk of developing a disease in comparison to the general public. The plaintiffs presented testimony by two expert witnesses who testified, in effect, that if an individual is exposed to MTBE or benzene in any dosage or amount, he or she incurs an additional risk of developing cancer and also that plaintiffs exposed to MTBE or benzene contamination in groundwater at greater levels than that to which they would otherwise be exposed through everyday activities possess a significantly increased risk of developing cancer. “Such testimony is insufficient to establish that [plaintiffs] had a significantly increased risk of developing cancer as a result of their alleged exposure to MTBE and benzene, the court said.

The court also held that in cases where plaintiffs successfully make a claim for the costs of medical monitoring, that a fund be set up at the defendant’s expense and administered by a trustee.

Baltimore, Maryland-based Belsky, Weinberg & Horowitz has been fighting for clients who have been the victims of negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.



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