When Is a Tort Complete?

Duty, breach, causation and injury: These are the traditional elements of a tort claim. Thus, under customary theories, a tort is inchoate unless and until the plaintiff suffers actual injury. For example, a plaintiff who has an increased risk of disease because she has been exposed to a defective product, but no manifest illness, would have no cause of action. Faced with this quandary, plaintiffs have resorted to novel claims and theories. They have argued, for instance, that recovery should be allowed for increased risk of future disease or for emotional distress.

A frequent claim by plaintiffs in these circumstances is that the defendant is liable for medical expenses necessary to monitor the plaintiff’s health. The claim has been allowed by some courts, even when the plaintiff has suffered no physical injury. Other courts have rejected the claim on the ground that the mere possibility that the plaintiff will contract an illness in the future does not meet traditional requirements. Recent decisions in cases involving claims for medical monitoring by courts in Mississippi, New Jersey and Oregon illustrate different approaches to these claims.