Just what the Doctor Ordered: A Canadian Approach to Medical Monitoring and Toxic Risk

This article asks whether a pre-manifestation cause of action for medical monitoring might assist victims of mass toxic exposure in their ongoing struggle to recover damages for personal injuries. Medical monitoring claims normally include requests for the periodic application of a diagnostic medical examination or test designed to detect a latent disease, but whose cost is not fully covered by a provincial or private health insurer. It is argued that to require a present physical injury before such costs are awarded is completely inconsistent with the underlying preventive purpose of medical monitoring and the common law’s jealous protection of personal autonomy over the body. Instead, a prima facie claim for medical monitoring should arise whenever a defendant tortiously exposes a plaintiff to a chemical or toxic substance that increases her risk of developing a serious latent disease for which medical monitoring is reasonably necessary. Such a defendant could avoid liability by relying on any of the usual tort law defences, or by challenging the appropriateness of the requested monitoring regime. Class members would also be required to prove exposure and their collective need for a particular screening test to minimize the risk of indeterminate liability. Within these parameters, medical monitoring can properly address toxic risk, deter the irresponsible discharge of synthetic chemicals, and create a system of civil liability where recovery for involuntary toxic exposures is truly possible.