by Fred Pritzker, National Food Safety Lawyer
In general, you can sue a restaurant for food poisoning if the law and evidence support your personal injury or wrongful death claim. If the investigation into your illness finds the specific food item that made you sick, you may also have claims against a grower, food processor and distributor. This article will focus on restaurant liability (legal responsibility).
Below are 5 things you should know about getting compensation from a restaurant for food poisoning.
1. The specific pathogen that caused the food poisoning must be determined. In most instances, you will not have a good case against a restaurant unless the specific pathogen that caused the food poisoning is determined. This starts with a medical professional getting stool samples and having them tested for Campylobacter, E. coli, Hepatitis A, Listeria, Norovirus, Salmonella, Shigella and Vibrio. If any of these are found, PFGE testing, discussed below, must be done. Our attorneys can help you make sure the correct testing is done. Request a free consultation with our food safety attorneys HERE.
2. PFGE testing must be done. Pathogenic bacteria have genetic fingerprints that can be determined with a process called pulsed-field gel electrophoreses (PFGE). This is important because if two or more people are sickened by bacteria with matching PFGE patterns, there is an outbreak. In addition, if the PFGE of your bacteria matches the PFGE of bacteria found at the restaurant (on equipment, etc.) or in restaurant food, that is “smoking gun” evidence that the restaurant is liable (legally responsible) for your illness and all of its complications, including hemolytic uremic syndrome (HUS), thrombotic thrombocytopenic purpura (TTP), Guillain-Barre syndrome, reactive arthritis and hemorrhagic colitis. You can ask me about PFGE testing HERE.
3. You may have a claim even if you do not know which food you ate at the restaurant made you sick. Even if the specific food item responsible for your illness is never determined, you may have a good case against a restaurant, depending on PFGE testing discussed above and epidemiological evidence. For example, if 10 people are sickened with E. coli with matching PFGE patterns and those people all ate at the same restaurant during the same time period, that is solid evidence against the restaurant. The key is making connections between the people sickened and the restaurant.
3. You can sue a restaurant if your illness is from a sick restaurant employee and not food. In many restaurant food poisoning outbreaks, an ill food handler employed by the restaurant transmits the illness either directly to food or to surfaces that come into contact with food. Many menu items can be contaminated with pathogens in this way. When this does happen, it means the food handler had a bowel movement and did not wash his or her hands, and that people sickened ate some of that food handlers feces.
4. Leftover food may be valuable evidence. If you get sick after eating at a restaurant and you have leftovers, do not throw them away. Tests can be done on the food, if necessary, to prove that your illness was caused by the restaurant food.
5. If the restaurant was grossly negligent, you may have a punitive damages claim. Restaurants are heavily regulated. If an investigation into your illness finds that there was a pattern of blatant regulatory violations that directly relate to your illness, you will probably have a punitive damages claim. Punitive damages are amounts of money awarded to a food poisoning victim that are given to punish the wrongdoer. These amounts are given in addition to amounts for medical expenses, lost income, pain and suffering, emotional distress and other “compensatory damages.” Punitive damages can be significantly more than compensatory damages.
Attorney Fred Pritzker and his Bad Bug Law Team represent food poisoning victims throughout the United States. They have won millions for their clients. Fred is a nationally known food safety expert and recently spoke at Harvard Law School and Cornell University.
You can contact our food poisoning lawyers for a free consultation HERE regarding a lawsuit against a restaurant for food poisoning.