Senate Bill 236 was approved by the committee on Feb. 21, and now will be presented to the entire state Senate. If passed, the bill would require the presence of an injury to file a lawsuit for a medical monitoring claim.
A 1999 state Supreme Court ruling – Bower v. Westinghouse Electric Corp. – created an independent cause of action for medical monitoring.
The executive director of West Virginia Citizens Against Lawsuit Abuse praised the committee’s action, saying the current guidelines makes West Virginia an outlier because “mere exposure, and not an injury, is sufficient basis to file a lawsuit.”
“West Virginia is one of a small number of states in the nation where courts have recognized an independent cause of action for medical monitoring, even when there is no evidence of a present injury,” Roman Stauffer said. “We applaud members of the Senate Judiciary Committee for advancing this much-needed reform.
“We thank Senators Charlie Trump and Ryan Weld for sponsoring this much-needed reform legislation. This change will ensure that resources are available to those with present injuries and not paid to greedy personal injury lawyers pursuing claims for injuries that are non-existent.”
The president of a state group for trial lawyers condemned the committee’s passage of the bill.
“The West Virginia Association for Justice is disappointed in Senate Judiciary’s passage of SB 236,” Jane Peak told The West Virginia Record. “The committee chose to ignore sworn testimony from three citizens that medical monitoring saves lives.
“Prohibiting these claims until an actual disease or illness is present defeats the very reason they exist. Medical monitoring allows for early detection and early treatment, which also saves money.”
Peak said the Senate Judiciary is putting corporate profits ahead of West Virginia lives and that “it could mean a death sentence for some.”
"Medical monitoring ensures that individuals who have been exposed to toxins or dangerous products can have regular medical tests to check for serious diseases, including cancer, that may not become apparent for several years,” she said. “Regular medical tests ensure that the condition is diagnosed early and that treatment begins as soon as possible.
“The costs for those medical tests should be covered by the corporation responsible, not the victim."
Stauffer also noted a recent statewide public opinion survey conducted by WV CALA that showed 80 percent of West Virginians surveyed believe a person should first prove they have been injured to file a personal injury lawsuit.
Peak said SB 236 defeats the purpose for which medical monitoring is intended.
“Most damages awarded in medical monitoring cases are put into trusts to cover medical testing and other medical expenses,” she said. “WVAJ supported an amendment to SB 236 that would have required that monies awarded in medical monitoring cases be put into trusts and used only for medical expenses.
“This would have protected claims for those who have been exposed, but also ensure that the monies awarded are set aside to cover only medical expenses. That option would have addressed the primary concern while still protecting these claims.”