By Nicholas Papain, Esq.
Food poisoning, a human illness caused by contaminated foods or beverages, remains a common hazard of modern life.
Food poisoning encompasses a wide range of symptoms and injuries. The effects may be relatively minor, involving episodes of fevers and chills, muscle aches or nausea and vomiting. More serious food poisoning cases may involve diarrhea, internal bleeding, severe abdominal pain, dehydration, seizures, kidney dysfunction, and even death.
Consumers expect that food — whether in the form of a quick meal from a neighborhood chain store, raw ingredients from the supermarket or the carefully prepared dinner from a fancy restaurant — will be safe to eat. People preparing food must take due care to make sure it is both fresh and free from disease and contamination.
Indeed, every time a restaurant serves food, it impliedly ensures or “warrants” that the food is fit for human consumption and free of dangerous substances. In New York and throughout the United States, attorneys refer to this as an “implied warranty of merchantability.”
However, the reality is that every day, people are sickened by unsafe foods and beverages containing dangerous bacteria. Foods may also be contaminated with parasites or toxic chemicals. Common food borne illnesses include E. coli, Salmonella and Hepatitis.
Among the top risk factors for the spread of food borne illnesses:
– Poor worker or facility hygiene (e.g., contaminated work surfaces, failure to wash hands, failure to screen workers for health problems, and failure to sterilize containers);
– Inadequate refrigeration (e.g., food is left unrefrigerated for too long or a freezer is not cold enough); and
– Failure to train workers (e.g., lack of written procedures, failure to enforce workplace rules, high worker turnover, and allowing workers to undercook meats).
Although there is nothing unusual or startling about the above risk factors, potential dangers exist at every stage of transport and transformation of the food: time of harvest; processing at the factory; distribution to retailers; preparation by restaurants; and sale to consumers.
All aspects of the food industry are regulated by federal and state government agencies.
Through the exercise of due care and by conforming with government regulations and industry standards, participants in the food industry prevent outbreaks of illness.
New York State’s civil justice system provides a remedy to those injured by negligent food preparation. In a lawsuit, an injured party may recover monetary damages from those responsible for an incident of food poisoning.
Every player in the food industry – the manufacturer, the transporter, the distributor, the marketer, and the restaurant – may be individually or jointly liable.
If you suspect that you are a victim of food poisoning, what must you do to prove your claim? At trial, the following elements must be established:
1) A food product was defective;
2) The defect in the food caused your illness; and,
3) You suffered damages as a result.
What makes a food product defective? Any food contaminated with a pathogen or contaminant is defective.
How does a patient prove causation? In order to prove that a defective food product caused your injuries, the first step is to identify the pathogen or contaminant responsible for your symptoms.
A patient must go to a doctor who will conduct medical tests, such as analysis of blood or other bodily fluids, to identify the pathogen. If a patient’s regular treating doctor cannot conduct such tests, the patient should go to a doctor or hospital that will.
With the pathogen identified, its incubation period, the time from ingestion of tainted food until the time the first symptoms of food poisoning show themselves, must be considered. Depending on the pathogen, the incubation period ranges from hours to days.
By identifying the pathogen and measuring the incubation period, doctors may estimate the dates on which the food that caused food poisoning was eaten, and thus narrow down the possible sources – restaurants, supermarkets, and food products – of food poisoning.
What are the damages?
Damages that may result from food poisoning include medical expenses, long term pain and suffering, need for future medical care, and loss of wages from inability to work. A patient’s spouse may have a claim for loss of services.
If you have suffered food poisoning, you should consult with a New York food poisoning and product liability attorney to discuss your potential case.
By Nicholas Papain, Esq. New York food poisoning and product liability attorney