It's happened to all of us — or someone we love. You're at your favorite restaurant, eating your favorite dish, then you get violently ill shortly after getting eating that delicious meal.
You're tempted to call the restaurant and complain. You're even more tempted to call a lawyer. Of course, you're not making any calls until after your stomach settles down.
But then you wonder, is it even worth it? How can I prove that the meal I ate at the restaurant is what landed me in the E.R.? It seems so difficult for you to prove. And it is.
THELAW.TV asked five questions about food poisoning to Minneapolis, Minnesota injury lawyer Ryan Osterholm of PritzkerOlsen, P.A. Mr. Osterholm is one of the few attorneys in the United States whose practice focuses on national foodborne illness litigation.
What should I do if I think the food I ate at a restaurant made me sick?
First, if you ate somewhere and then got sick right away, you most likely did not get sick from that restaurant. Every pathogen has a different incubation period. Most are at least 12-24 hours, with many much longer. The Cyclospora outbreak we are dealing with right now has an incubation period of around a week generally. So you really have to go back and look at exposure history. Once you become ill, it is important to go to the doctor to determine what is making you sick. If you did in fact get sick from eating at a restaurant, chances are other people are sick as well. It is important to know what exact pathogen you are sick with. That can only be accomplished by going to the doctor and getting a stool sample tested for pathogens.
What if the restaurant denies my claim?
The cases I take on are almost always instances where there is a little doubt about where my client was sickened from. This is because they are almost always part of an outbreak of many people who are sick. So that instance rarely happens, but like any other case, if it does, you litigate the case, hire experts, and proceed toward trial. In restaurant settings, outbreaks are often caused by contaminated products coming in, so I may look at going after an upstream supplier.
Should I save any of the evidence?
Generally no. Food is notoriously hard to test for pathogens. Even if it is in there, it is hard to culture out. The only thing I usually want clients to keep is a receipt or credit card statement showing when they ate at the restaurant. It is not necessary to prove a claim, but does not hurt either.
What kind of damages can I get for my illness?
I usually try to recover economic damages such as medical bills and wage loss, in addition to non-economic damages, such as pain and suffering. Each case is very different and must be evaluated individually.
How will we prove my case?
If I agreed to take on your case, it means that you tested positive for a specific pathogen. That also means that there will be health department records generated. Let's say, for example, you call me and say "Ryan, I just tested positive for Salmonella. I heard there is a big outbreak of this at a local restaurant, I ate there and got sick." The first thing I would do is try to determine the serotype of Salmonella. There are hundreds, if not thousands, of types of Salmonella. I will want to know what you were sick with. Everyone else from the outbreak will be sick with the same strain of Salmonella. Next, I will want to see records from the health department looking at the Pulsed-Field Gel Electrophoreses (PFGE) pattern of your Salmonella. A PFGE pattern is like a unique genetic fingerprint of the bacteria. Everyone in the same outbreak will have the same PFGE pattern, it is almost a "smoking gun" for us if we can prove you have the same PFGE pattern as everyone else and got sick within the expected incubation period after eating at that restaurant.
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