A series of bills were recently introduced in the Michigan Legislature seeking to modify a number of environmental statutes. Some of the proposed bills simply tweak existing laws. Others are more substantive.
One such bill involves medical monitoring, sometimes referred to as medical surveillance fees. Claims for medical monitoring involve an exposure to a hazardous substance(s). If that exposure could lead to a physical injury sometime later in life, future medical screenings may be required for detection. Claims for medical monitoring were previously considered by the Michigan Supreme Court in Meyerhoff v Turner Construction Company and Henry v Dow Chemical Company. In Meyerhoff, the claim for medical monitoring was treated as an element of damages. In Dow, the court treated it as a negligence cause of action. Regardless of its characterization, the Court rejected the claims in both cases.
The Dow Court stated in no uncertain terms that a negligence cause of action will not support a claim for medical monitoring in Michigan. In doing so, it noted the difference between a possible future injury and an actual present injury. Only a present physical injury will support a negligence claim in this State.
Senate Bill No. 610 would change that. It seeks to create a cause of action for medical monitoring against persons responsible for a release of hazardous substances under Part 201 of the Natural Resources and Environmental Protection Act (“NREPA”). That cause of action would be an exclusive remedy for individuals exposed to hazardous substances but lacking a present injury or disease.
To prevail, a plaintiff would be required to show:
1. They or their biological parents (prior to plaintiff’s birth) were exposed to a hazardous substance(s) at a rate significantly greater that the general population,
2. As a proximate result of the exposure, the plaintiff has suffered an increased risk of contracting a serious disease,
3. That risk makes it medically necessary for the plaintiff to undergo periodic medical monitoring procedures different from individuals with no exposure, and
4. The person liable for the exposure employed five or more full time employees at the time the hazardous substance(s) was released.
If a court awards a plaintiff any costs for medical monitoring, the award must be paid into a court supervised medial monitoring program administered by appropriate health professionals. If any costs are awarded, the court is required to award reasonable attorney fees and other litigation costs to the successful plaintiff.