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11/30/22   |   By

Can You File a Lawsuit for Food Poisoning?

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In short, yes, you can file a personal injury lawsuit for food poisoning. Food poisoning cases in general, however, are not so straightforward.

Let’s imagine you are enjoying dinner at a local restaurant you frequent often. The restaurant is playing good music, you’re in great company, and the food you ordered is fantastic. All is just right. For the moment. Fast forward to the next morning, and you are doubled over with the most intense abdominal pains you’ve ever experienced, and you’re spending your time camped out in the bathroom with a seemingly endless case of diarrhea.

Now let’s imagine you’re doing your grocery shopping. You’re in the produce aisle picking out some leafy green vegetables and you put them in your cart with your other food. You take your groceries home and that night you make a salad with your leafy greens. Everything is great. You had a healthy dinner and you’re going to relax for the night. Fast forward to the next morning, and you’re in the same situation as the one above. Stuck in the bathroom and doubled over in pain.

Maybe your symptoms resolve considerably quickly and fortunately, you don’t need medical attention. But maybe they linger and cause hospital visits, missed work, lost wages, and in some cases, dehydration, prolonged irregular bowel habits, or even reactive arthritis. In cases like these, it would serve you well to contact an experienced food poisoning lawyer to discuss specifics such as the food you ate, where you ate it, the medical attention you received, and the details of your illness.

Premises Liability Claim

The owner of a property or business has a responsibility to manage a safe environment for their visitors or customers. Likewise, if the owner fails to make a reasonable effort to meet that duty, they can be held liable for injuries sustained on their premises as a result of their negligence. In other words, a premises liability lawsuit refers to the negligence of a property or business owner.

In the scenarios above involving eating contaminated food, experiencing severe symptoms, and seeking medical treatment, the concept of premises liability commonly comes into play under the following circumstances:

  • Food is not cooked thoroughly
  • Food is not refrigerated at a proper temperature
  • Improper food handling by an ill employee with dirty hands
  • Expired food is being served
  • Cross-contamination between food products
  • Time and temperature concerns from improper food holding, e.g., buffet stations
  • Contaminated equipment

Product Liability Claim

The production company or the seller of a product has the implied responsibility of ensuring their product is safe. When raising a food poisoning claim under the theory of product liability, compensation for damages would be sought by proving at least one of the following:

  • Negligence. Design errors or manufacturing flaws.
  • Breach of warranty. When food does not conform to either:
    • an express warranty – a clearly spoken or written guarantee
    • an implied warranty – an unspoken, but implicit guarantee
  • Strict liability. Proof that food served by a restaurant or purchased at a store was defective and unreasonably dangerous. Further, there must be proof that the defective and unreasonably dangerous food caused the illness. While Maryland and Washington, D.C. recognize strict liability, Virginia does not.

According to the Mayo Clinic, some common causes of infected food served by restaurants or sold at grocery stores are as follows:

Contaminant Onset of Symptoms Foods Affected, and Means of Transmission
  • Campylobacter 2 to 5 days Meat and poultry. Contamination occurs during processing if animal feces contact meat surfaces. Other sources include unpasteurized milk and contaminated water.
  • Clostridium. 12 to 72 hours Home-canned foods with low acidity, improperly botulinum canned commercial foods, smoked or salted fish, potatoes baked in aluminum foil, and other foods kept at warm temperatures for too long.
  • Clostridium. 8 to 16 hours Meats, stews, and gravies. Commonly spread perfringens when serving dishes don’t keep food hot enough or food is chilled too slowly.
  • Escherichia coli. 1 to 8 days Beef contaminated with feces during slaughter. (E. coli) Spread mainly by undercooked ground beef. Other sources include unpasteurized milk and apple cider, alfalfa sprouts, and contaminated water.
  • Giardia lamblia. 1 to 2 weeks Raw, ready-to-eat produce, and contaminated water. Can be spread by an infected food handler.
  • Hepatitis A. 28 days Raw, ready-to-eat produce and shellfish from contaminated water. Can be spread by an infected food handler.
  • Listeria. 9 to 48 hours Hot dogs, luncheon meats, unpasteurized milk and cheeses, and unwashed raw produce. Can be spread through contaminated soil and water.
  • Noroviruses. 12 to 48 hours Raw, ready-to-eat produce and shellfish from (Norwalk-like contaminated water. Can be spread by a virus) infected food handler.
  • Rotavirus. 1 to 3 days Raw, ready-to-eat produce. Can be spread by an infected food handler.
    Salmonella 1 to 3 days Raw or contaminated meat, poultry, milk, or egg yolks. Survives inadequate cooking. Can be spread by knives, cutting surfaces, or an infected food handler.
  • Shigella. 24 to 48 hours Seafood and raw, ready-to-eat produce. Can be spread by an infected food handler.
    Staphylococcus 1 to 6 hours Meats and prepared salads, cream sauces, and aureus cream-filled pastries. Can be spread by hand contact, coughing, and sneezing.
  • Vibrio vulnificus. 1 to 7 days Raw oysters and raw or undercooked mussels, clams, and whole scallops. Can be spread through contaminated seawater.

How Do the Medical Providers Know it’s Food Poisoning?

If, as the result of food poisoning, you’ve experienced severe symptoms that require medical attention, how does your primary care physician know that you do in fact have food poisoning?

What Is Food Poisoning?

According to Medical News Today gastroenteritis is a condition involving inflammation of the lining of the gut — in particular, of the stomach and intestines. It usually results from pathogens that infect a person and causes symptoms. These are usually viruses, bacteria, or parasites. When the source of such infection is food, it is called food poisoning.

Gastroenteritis may also be referred to as “gastric flu” or “stomach flu.”

Pathogens

Foodborne pathogens (e.g. viruses, bacteria, parasites) are biological agents that can cause a foodborne illness event. A foodborne disease outbreak is defined as the occurrence of two or more cases of a similar illness resulting from the ingestion of a common food [2].
Foodborne illness occurs when a pathogen is ingested with food and establishes itself (and usually multiplies) in the human host, or when a toxigenic pathogen establishes itself in a food product and produces a toxin, which is then ingested by the human host.
Bintsis T. Foodborne pathogens. AIMS Microbiol. 2017 Jun 29;3(3):529-563. doi: 10.3934/microbiol.2017.3.529. PMID: 31294175; PMCID: PMC6604998.

Common symptoms of food poisoning

While the specific pathogen may vary, the most common symptoms of food poisoning are as follows:

  • Upset stomach.
  • Abdominal pains and cramps.
  • Nausea.
  • Vomiting.
  • Watery or bloody diarrhea.
  • Fever.
  • Headaches.
  • Muscle aches.

In severe cases, a victim of food poisoning can experience symptoms such as difficulty breathing, paralysis, stroke, heart attack, pancreatitis, colitis, meningitis, reactive arthritis, and in rare cases, death.

Testing for food poisoning

A medical professional will test the stool or blood of an injured person to zero in on the source of the food poisoning. A stool sample will indicate whether there is a food poisoning bacteria or parasite present.

A blood sample can determine electrolyte levels, as well as check kidney function. If symptoms are severe or there are signs of possible complications, a complete blood count may be performed. Liver function may also be checked if there are suspicions of hepatitis infection. Blood tests are also used to rule out any medical suspicions or underlying conditions.

How can you prove the source of the food that made you ill?

As illustrated in the table above, the incubation period of a contaminant can vary greatly. Food poisoning symptoms do not always appear on the same day that the contaminated food product was consumed. This can make it difficult to pinpoint the source of the food contamination.

A helpful way to trace the source is to look into whether the restaurant’s food that you ate made other people sick. If you needed attention from your medical providers, are there others who also visited the emergency room, or did someone require hospitalization?

Another way to determine the source of foodborne illnesses is to look into whether the local health department health officials or the Centers for Disease Control (CDC) issued any warnings regarding contaminated food products. Historically, there have been many class action lawsuits in response to foodborne bacteria, whether it be salmonella-tainted peanut butter or listeria-contaminated hot dogs. If you have a foodborne illness that others are experiencing, your food poisoning case just got stronger.

What damages can you What damages can you recover from a food poisoning claim?

Compensatory damages

Economic damages

If your food poisoning case is severe enough, you could be faced with an onslaught of hospital bills, future medical expenses, prescription medication fees, lost wages, and other financial damages due to your illness. To recover compensation for these expenses in a food poisoning lawsuit, your lawyer would ask for economic or actual damages.

Non-economic damages

Pain and suffering or emotional distress resulting from the trauma of severe cases of food poisoning can be alleviated with an award of non-economic damages in personal injury cases.

Punitive damages

If the negligence of a food supplier or restaurant is blindingly egregious, to sue that supplier or to sue a restaurant for food poisoning for punitive damages along with compensatory damages is something your personal injury attorney can help you with.

How much are food poisoning lawsuits worth?

The amount of money a food poisoning lawyer is able to win in a food poisoning lawsuit is dependent on the negligence of the restaurant or vendor, and the severity of the illness. In one case involving listeria infection and the deaths of infected people, millions of dollars were awarded to the victims or their families. In another case involving an E. Coli infection at a national chain, millions of dollars were awarded as well.

Who is most at risk for food poisoning?

  • Individuals with compromised immune systems due to illness or medical treatment;
  • Children under the age of five;
  • Adults over the age of 65;
  • Pregnant women.

What Foods Are Typically Associated with Foodborne Illnesses?

  • Raw animal meat and poultry
  • Raw eggs
  • Unpasteurized milk
  • Raw shellfish
  • Fruits and vegetables contaminated with animal or human waste
  • Raw sprouts
  • Unpasteurized fruit juices
  • Food touched by a person with an illness

Prevention of Food Poisoning

The CDC indicates that the following behaviors are key to helping to significantly reduce the number of food poisoning cases.

  • Clean. Wash your hands and work surfaces before, during, and after preparing food. Germs can survive in many places around your kitchen, including your hands, utensils, cutting boards, and countertops.
  • Separate. Separate raw meat, poultry, seafood, and eggs from ready-to-eat foods. Use separate cutting boards and keep raw meat away from other foods in your shopping cart and refrigerator.
  • Cook. Cook to the right internal temperature to kill harmful bacteria. Use a food thermometer.
  • Chill. Keep your refrigerator at 40°F or below. Refrigerate leftovers within 2 hours of cooking (or within 1 hour if food is exposed to a temperature above 90°F, like in a hot car).

Why Should You Contact a Personal Injury Lawyer?

PartnerSal Zambri seated at deskFood poisoning lawsuits are not cut and dried. Initiating a legal claim for an uncomfortable but fleeting illness due to eating food at a restaurant that has been contaminated does not necessarily mean you should sue for food poisoning. In situations where an infected person is really suffering and in need of medical treatment, an experienced personal injury attorney who understands the importance of food safety, will help you file your food poisoning lawsuit, prove negligence, deal with the insurance company, obtain medical records, gather medical bills, and fight for fair compensation for your personal injury claim.

For a food poisoning lawsuit in Maryland, Virginia, or Washington, DC, contact our attorneys at the law firm of Regan Zambri Long for a free consultation.

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