SB312: relative to medical monitoring for exposure to toxic substances.

SB 312-FN - AS INTRODUCED

2019 SESSION

19-0948

08/04

SENATE BILL 312-FN

AN ACT relative to medical monitoring for exposure to toxic substances.

SPONSORS: Sen. Chandley, Dist 11; Sen. Rosenwald, Dist 13; Sen. Hennessey, Dist 5; Sen. Levesque, Dist 12; Sen. Cavanaugh, Dist 16; Sen. Fuller Clark, Dist 21; Sen. Sherman, Dist 24; Sen. Feltes, Dist 15; Rep. Cushing, Rock. 21; Rep. Keans, Straf. 23; Rep. McBeath, Rock. 26; Rep. Piedra, Hills. 9; Rep. Suzanne Smith, Graf. 8

COMMITTEE: Judiciary

ANALYSIS

This bill creates a claim for a person exposed to a hazardous or toxic substance who require medical monitoring in order to detect serious disease.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

19-0948

08/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Nineteen

AN ACT relative to medical monitoring for exposure to toxic substances.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Medical Monitoring. Amend RSA by inserting after chapter 125-S the following new chapter:

CHAPTER 125-T

MEDICAL MONITORING

125-T:1 Definitions. In this chapter:

I. "Exposure" means causing, through negligence or otherwise, a person to be in the presence of or impacted by hazardous or toxic substances, either through direct contact, through the air, through water, or through soil.

II. "Hazardous or toxic substance" means any chemical or biological substance that poses a risk to human health; any substance categorized as toxic by the United States Environmental Protection Agency (EPA) or the Agency for Toxic Substance and Disease Registry (ATSDR) shall be a hazardous or toxic substance. Those chemical or biological substances not so categorized may be proven to be a hazardous or toxic substance by a preponderance of the evidence.

III. "Serious disease" means any condition that negatively affects human health by causing death or permanent or protracted loss of mental or physical function;

125-T:2 Claim Established. The need for a person to undergo continued medical monitoring shall be a form of damage and compensable claim under New Hampshire law and is a logical extension of pre-existing case law both in New Hampshire and other jurisdictions.

125-T:3 Elements of Claim. In order to prove a claim for medical monitoring the plaintiff shall demonstrate by a preponderance of the evidence that:

I. The defendant caused significant exposure to a proven hazardous or toxic substance;

II. That the plaintiff suffers from a significant increased risk of contracting a serious disease;

III. That this increased risk makes the need for periodic examinations reasonably necessary; and

IV. That such examinations are effective at detecting a serious disease.

125-T:4 Calculation of Damages. Damages shall be equal to the cost of reasonably necessary periodic examinations. The costs and necessity of such examinations may be proven by expert testimony.

125-T:5 Statute of Limitations.

I. Medical monitoring claims shall be made within 3 years of the discovery of exposure. The date of actual exposure is immaterial to an analysis of the statute of limitations for medical monitoring claims.

II. A person who can prove the need for medical monitoring on or after the effective date of this section may make such claim to the extent it is not barred by the statute of limitations as described in this section.

2 Effective Date. This act shall take effect 60 days after its passage.

LBAO

19-0948

Revised 2/12/19

SB 312-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to medical monitoring for exposure to toxic substances.

FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None

Estimated Increase / (Decrease)

STATE:

FY 2020

FY 2021

FY 2022

FY 2023

Appropriation

$0

$0

$0

$0

Revenue

$0

$0

$0

$0

Expenditures

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Funding Source:

[ X ] General [ ] Education [ ] Highway [ ] Other

The Judicial Branch was originally contacted on January 8, 2019 for a fiscal note worksheet, which they have not provided as of January 28, 2019.

METHODOLOGY:

This bill inserts a new chapter after RSA 125-S establishing a compensable claim for a person undergoing continued medical monitoring as a result of exposure to hazardous or toxics substances.

The Department of Administrative Services anticipates an indeterminable increase to state expenditures to the extent claims against the State pursuant to RSA 541-B increase as a result of this bill.

The Department of Health and Human Services and Department of Environmental Services state there would be no fiscal impact to departmental expenditures or revenue.

The Department of Justice assumes it could provide the necessary consultation and counseling within its current budget and indicates there would be no impact on state revenues.

AGENCIES CONTACTED:

Departments of Environmental Services, Health and Human Services, Administrative Services, and Justice, and Judicial Branch