Just the facts on this one, as my firm is involved for defendants in such actions, but word comes that New York’s highest court has joined the trend of state courts rejecting medical monitoring. See Caronia v. Philip Morris USA, Inc.,  No. 227 (N.Y., 12/17/13).

Plaintiffs, healthy smokers, sought medical monitoring in the form of low dose CT scans allegedly necessitated by their increased risk of future disease.  The federal court certified the issue of medical monitoring to the state court, specifically, (1) under New York Law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and
who is not under investigation by a physician for such a suspected disease, pursue an  independent equitable cause of action for medical monitoring for such a disease?
(2) If New York recognizes such an independent cause of action for medical monitoring, what are the elements of that cause of action? What is the applicable statute of limitations, and when does that cause of action accrue?

The state court observed that while there is certainly an important health interest in fostering access to medical testing for those whose exposure has resulted in an increased risk of disease, and such testing could possibly lead to early detection and treatment, not only mitigating future illness but also reducing the cost to the tortfeasor.  However, the potential systemic effects of
creating a new, full-blown tort law cause of action cannot be ignored. For instance, dispensing with the physical injury requirement could permit tens of millions of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor’s resources for those who have actually sustained damage.  From a practical standpoint, it cannot be overlooked that there is no framework concerning how such a medical monitoring program would be implemented and administered. Courts generally lack the technical expertise necessary to effectively administer a program heavily dependent on scientific disciplines
such as medicine, chemistry, and environmental science.  The Legislature is plainly in the better position to study the impact and consequences of creating such a cause of action, including the
costs of implementation and the burden on the courts in adjudicating such claims.

The court concluded that these policy reasons militated against a judicially created independent cause of action for medical monitoring. Allowance of such a claim, absent any  evidence of present physical injury or damage to property, would constitute a significant deviation from the state’s tort jurisprudence.