Schwartz and Appel: Courts Should Not Adopt New Medical Monitoring Provision
The American Law Institute’s (ALI) latest Restatement of Torts—which is currently nearing completion—includes a provision that recommends allowing tort claimants to recover medical monitoring expenses absent a present physical injury, Shook Public Policy Practice Group Co-Chair Victor Schwartz and Senior Counsel Christopher Appel wrote in an article published in the Spring 2024 edition of the Southwestern Law Review.
In the article, titled “The Restatement (Third) of Torts Proposes Abandoning Tort Law's Present Injury Requirement to Allow Medical Monitoring Claims: Should Courts Follow?” Schwartz and Appel discuss the purpose, history and influence of ALI restatements; the development of the medical monitoring provision at issue; and the policy implications of the proposed rule.
They conclude that the courts should adhere to the traditional present injury requirement in medical monitoring cases.
“The rule reflects a distinct minority approach that does not technically ‘restate’ the law of any jurisdiction,” they said. “It jettisons the bright-line present injury requirement that has historically defined tort liability in favor of an open-ended expansion of tort liability.”
