In its decision filed on December 31, 2014, the Supreme Court of the State of Nevada (“Nevada Supreme Court”) held that a plaintiff may state a cause of action for negligence with medical monitoring as the remedy without asserting that he or she has suffered a present physical injury, noting that if medical monitoring claims are denied, plaintiffs who cannot afford testing may, through no fault of their own, be left to wait until their symptoms become manifest, losing valuable treatment time. Rather than allowing that result, the Nevada Supreme Court stated that it is more just to require the responsible party to pay for the costs of medical monitoring necessitated by that party’s actions.
The goal of a medical monitoring claim is to require the defendant to pay for the costs of long-term diagnostic testing to aid in early detection of latent diseases that may have been caused by the defendant’s tortious conduct.
The Economic Loss Doctrine
The economic loss doctrine provides that a plaintiff, generally, cannot recover on an unintentional tort claim for purely economic losses. The Nevada Supreme Court determined that the plaintiffs in this case have not alleged purely economic losses – while their claims for medical monitoring are based in part on the expense of undergoing such testing, they also allege that PacifiCare’s actions exposed them and others to unsafe injection practices, putting them at risk for contracting serious blood-borne diseases, which are noneconomic detrimental changes in circumstances that the plaintiffs allege they would not have experienced but for the negligence of PacifiCare.
The Nevada Supreme Court held, “we conclude that, in a negligence action for which medical monitoring is sought as a remedy, a plaintiff may satisfy the injury requirement for the purpose of stating a claim by alleging that he or she is reasonably required to undergo medical monitoring beyond what would have been recommended had the plaintiff not been exposed to the negligent act of the defendant.”
The Underlying Alleged Facts
Following an outbreak of hepatitis C that was linked to unsafe injection practices used in procedures performed at certain health-care facilities in southern Nevada, patients of those facilities who had undergone such procedures were advised to submit to testing for bloodborne diseases, including hepatitis B, hepatitis C, and HIV. The plaintiffs filed a complaint in court against PacifiCare of Nevada, Inc. (“PacifiCare”), a health maintenance organization, on their own behalf and on behalf of others who were similarly situated, asserting claims of negligence and negligence per se on the ground that PacifiCare failed to perform its duty to establish and implement a quality assurance program to oversee the medical providers within its network.
The plaintiffs alleged that PacifiCare’s failure to monitor the medical providers allowed those providers to use unsafe injection practices, including reusing syringes and consequently injecting patients with medications from contaminated vials, which resulted in the plaintiffs and others being exposed to infection risks, requiring subsequent medical monitoring for infections, for which the plaintiffs sought to have the court establish a court-supervised medical monitoring program at PacifiCare’s expense.
The trial court had granted judgment on the pleadings for the defendant, finding that the plaintiffs’ claims were based on a risk of exposure to infected blood and that they had not alleged actual exposure to contaminated blood, which the trial court found was insufficient to allege an injury. The Nevada Supreme Court reversed that decision.
Susan Sadler, et al. v. PacifiCare of Nevada, Inc., No. 62111, 130 Nev., Advance Opinion 98.
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