A couple of quick hits today, on once “novel” causes of action whose time – at least in the novel legal spaces to which plaintiffs attempted to export them – appears to have passed.
- Anybody can nominate a topic for USPSTF evaluation, so this alternative is not difficult, particularly when compared to what medical monitoring plaintiffs seek to create.
- Obviousness matters, since equity (in which plaintiffs typically clothe medical monitoring claims) will not act where there is an adequate remedy at law – in this case the ACA (again, assuming it turns out to be adequate). There may well be another screening method for the same condition that the USPSTF has already found to be effective.
- Cheapness matters, too, since why set up an alternative judicially supervised program, at great expenditure of time (including judicial time) and money, where a government run alternative already exists? Judicial intervention is simply unnecessary; since it’s not the judiciary’s role to add even more benefits to the ACA.
- Finally, since plaintiffs have the burden of proof on the existence and necessity of monitoring, how can they proceed with determinations that are really within the primary jurisdiction of the USPSTF?