Negligence must remain in medical monitoring

By JIM ROCHE
By Jim Roche

Regulation of per- and polyfluoroalkyl substances (PFAS) in the air and water has made headlines in recent months. New Hampshire’s Department of Environmental Services spent much of the past year determining maximum contaminant levels (MCLs) for PFAS compounds. BIA stated publicly many times that the process for setting MCLs was inappropriately influenced by pressure, procedure and politics. We’re not alone, and others are pushing back against the MCLs with legal action.

What has received much less attention is something known as “medical monitoring.” Medical monitoring is a method to track the health of individuals potentially exposed to emerging contaminants. Although many details are yet to be settled — including who would qualify for medical monitoring, what illnesses will be scrutinized, and how illnesses will be attributed to exposure to which chemicals — a huge public-policy question remains unanswered: who will pay for it?

Lawmakers on the New Hampshire House Judiciary Committee pondered these issues, and recently recommended that medical monitoring legislation, HB 661, include the term “negligence.” This is an important improvement to the original language of the bill. While it’s early in the process — the bill still must be voted on by the full New Hampshire House in January, and if passed, be sent to the New Hampshire Senate — the committee chose to adopt an important principle. Any new medical monitoring legislation must fairly differentiate between those who are bad actors and those who are not. Put another way, how widely should the net be cast when determining who’s at fault when things go wrong?

Chemicals are embedded in our daily lives. Using chemicals in the industrial process is not a negligent act. Neither is producing chemicals, storing them, marketing and selling them, nor applying them in a manner that conforms to government regulations and industrial best-practices. Holding industries responsible for these non-negligent actions will only serve to thwart companies from conducting business.

As a legal concept, a negligence standard has been a fundamental part of our justice system for ages. It helps hold parties responsible for their actions and provides a mechanism for disincentivizing careless behavior. What’s more, negligence provides a malleable platform which can evolve as new issues arise.

Normally, a person adversely affected by chemicals must show damages to be compensated in a lawsuit. Often, damages are shown by a physical injury, such as development of an illness. Medical monitoring seeks to address this issue by allowing a plaintiff to recover compensation without showing they’re currently sick.

It’s important that any new legislation proposed in New Hampshire stipulate the responsibility for medical monitoring costs fall only upon entities that have acted negligently. It should not be written in such a far-reaching way that would hold liable all parties ever associated with the product or its materials — from distributors and retailers to contractors and homeowners. In civil cases, negligence holds those responsible who acted carelessly. Medical monitoring should be no different, holding bad actors responsible for any damage they cause.

Medical monitoring without negligence would create prohibitive levels of liability for companies, thereby slowing or perhaps halting technological advancement. Without applying an element of fault to liability, businesses would be held liable for any unfortunate result. This would serve to suffocate innovation, turning corporate caution into preventative inaction. Few responsible companies would risk creating new, useful chemicals if they could be sued no matter how careful they were.

Chemicals are not always harmful to us, and many are very beneficial. Chemicals have helped bring us conveniences we take for granted in the 21st century like smart phones, computers, adhesives, medications, cleaners, improved food production, better infrastructure, and thousands of other items embedded in our daily lives. These things may never have existed if inventors were afraid their new technology could someday be found unhealthy and they would be on the hook for millions in reparations, regardless of precautions they took.

A negligence standard must be used in medical monitoring. This will help accomplish medical monitoring’s goals in a manner that is fair, and without sacrificing technological advancement.

Jim Roche is the president of the Business & Industry Association of New Hampshire.