[this blog post co-authored by Deborah J. La Fetra.]
Traditionally, tort law compensates those injured by the fault of others.That is, a plaintiff cannot successfully sue a defendant because he could have suffered an injury but did not. Likewise, the plaintiff cannot successfully sue if he might suffer an injury in the future. These speculative harms have no place in traditional tort law.
Enterprising tort lawyers challenge that black-letter law when they can, usually with little success. In Nevada, however, a three-judge panel of the state supreme court recently allowed a class action lawsuit to move forward that creates a free-standing claim for medical monitoring, without the plaintiffs showing any injury—or even contact with a potential harm. The case, Sadler v. PacifiCare, arose from PacifiCare’s alleged failure to establish a quality assurance program to oversee the medical providers in its network. Unfortunately, some providers under PacifiCare’s auspices used unsafe injection practices.
The plaintiffs have not become ill, nor do they claim to have suffered exposure to any contaminated blood. Nevertheless, the panel gave its imprimatur to this new, unfortunate extension of the law that will have unintended consequences that will redound to the detriment of other plaintiffs who actually have suffered injuries. Allowing the plaintiffs’ case to move forward makes Nevada a true outlier jurisdiction; other states require at least an allegation of harmful contact. Most states allow medical monitoring only as a remedy for a manifested physical harm.
PacifiCare is seeking review from the full Nevada Supreme Court, and PLF filed an amicus brief supporting their petition. In our view, altering common law rights, creating new causes of action, and providing new remedies for wrongs is generally a legislative, not a judicial, function. And that’s not just our view. That’s the view of the Nevada Supreme Court, as stated in Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001), the last time the Nevada Supreme Court considered—and rejected—an effort to judicially create this same theory of speculative liability for deep pockets in Nevada. Hopefully what the Nevada Supreme Court understood then it will re-affirm now.