New case on medical malpractice & medical monitoring

As you know, medical malpractice is a controversial area of the law. Many attempts to "reform" the law of torts concentrate on medical malpractice litigation. Check the list of recommended readings for some very informative materials on the subject (most of them are available for downloading in my documents page). In any case, today, the Drug & Device Law Blog posted a discussion of an interesting new case that combines medical malpractice, medical monitoring, products liability and civil procedure. It is very interesting. Here is the link. The facts are long and complicated but they involve an open heart surgery on a newborn baby during which the doctors implanted a device that was not FDA approved - for anything. The court dismissed some of the claims but eventually allowed one for "medical monitoring" which means the defendant will have to pay for the costs the plaintiff incurs in the future due to the need to continue monitoring a condition. The authors of the blog do not agree with the decision. After a very detailed description of the case and the issues, they conclude: "Thus, in the end, we have to conclude that the pair of Guinan decisions produced a parody of established medical monitoring law. Delaware hasn’t recognized medical monitoring at all, and certainly hasn’t applied it to drug/device product liability cases. A federal court sitting in diversity has no business making that kind of decision for a state. Beyond that, even if Delaware were to recognize this very controversial tort – it’s still a tort. Medical monitoring isn’t free health insurance – the law doesn’t make a product manufacturer pay for somebody’s medical tests simply because it admits that those tests might be a good idea. There has to be a tort – some form of wrongful conduct – and in Guinan there simply wasn’t. The court recognized that, by dismissing every other cause of action that the plaintiffs had, whether based on negligence, strict liability, warranty, or fraud, but decided to let the plaintiffs proceed anyway."