Food Poisoning: Your Legal Rights

What is poisoning?

Food poisoning is an illness caused by eating food that has been contaminated. Microscopic organisms such as bacteria, viruses, or parasites (or their related ) can infect food at any point in the food production cycle: Growing, harvesting, packaging, storing, shipping, and delivering food to consumers. It can also occur at home if food is improperly cooked or handled.

Symptoms can appear within hours, typically , , abdominal pain and cramps, or diarrhea. While most cases of food poisoning are relatively mild and usually resolve within a few days, some cases can lead to very serious conditions requiring medical treatment and hospitalization. Severe cases of food poisoning can be deadly as well.

The Centers for Control and Prevention (CDC) estimate that about 48 million individuals in the U.S. get sick each year from foodborne illnesses, with 128,000 hospitalizations and approximately 3,000 deaths.

Common types of food poisoning

Norovirus

Norovirus is the most common cause of viral in humans. It is highly contagious and easily spread from person to person. The virus is transmitted by fecally contaminated food or water, by person-to-person contact, and contamination of surfaces. Symptoms usually appear within 12 to 48 hours. Norovirus is characterized by nausea, vomiting, watery diarrhea, abdominal pain, and in some cases, loss of taste. General lethargy, weakness, muscle aches, headache, and low-grade may occur. Sometimes dehydration may result if an individual cannot drink enough fluids to replace what they are losing from diarrhea or vomiting. typically contaminated with are raw, ready-to-eat produce and shellfish from contaminated water. The disease is usually self-limiting, and severe illness is rare. According to the Centers for Disease Control and Prevention (CDC), each year in the U.S., norovirus causes 19 to 21 million cases of inflammation of the stomach or intestines and leads to 400,000 emergency room visits.

E. coli

E. coli (Escherichia coli) is a more dangerous form of . Many kinds of E. coli bacteria exist, but most of them do not cause illness in humans or other animals. In fact, nonpathogenic E. coli normally inhabits the large intestine of humans, and is beneficial because it helps completely break down food and produces vitamin K.

Some strains of E. coli, however, produce toxins or other materials that can cause serious disease. Many of the pathogenic (disease-causing) strains of E. coli produce Shiga toxins, and are referred to as Shiga -producing E. coli, or STECs. There are two kinds of Shiga toxin, called Shiga toxin 1, or Stx1, and Shiga toxin 2, or Stx2. These toxins invade cells, particularly of small blood vessels, and prevent the cellular DNA from making proteins, thus killing the cells.

When a STEC enters the body in food or water, Shiga toxins attack cells that line small blood vessels of the . Death of these cells results in bleeding, and can be shed in bloody diarrhea. Severe bloody diarrhea, or hemorrhagic , can permanently damage the colon and necessitate its removal.

As STEC bacteria enter the bloodstream of the body, they attack small blood vessels in other parts of the body. The most commonly affected organs are the kidneys, nervous system, and lungs. In the kidneys, Shiga toxins attack the small blood vessels of the glomeruli, which are the key filtering structures of these organs. Destruction of these blood vessels can lead to kidney failure and hemolytic uremic syndrome (HUS). Kidney failure and HUS generally require kidney dialysis. They might also lead to death or necessitate a kidney transplant to prevent death.

The most commonly identified STEC in the United States is E. coli O157:H7. Nearly all strains of E. coli O157:H7 produce Stx2, but some do not produce Stx1. Stx2 is hundreds of times more toxic than Stx1. About 15 percent of children, and a smaller percentage of adults with E. coli O157:H7 diarrhea, develop HUS. Fifty percent of HUS patients require dialysis, and about 50 percent either die or require a kidney transplant. E. coli O157:H7 is one of the deadliest pathogens that enter the body in food or water.

STECs normally inhabit the digestive tracts of cattle, deer, pigs, goats, and a few other mammals. Cattle are the most important reservoir for human disease. These animals lack the cell surface receptors for Shiga toxins, so they do not develop illness. The toxins cannot enter and kill the animals' cells. Transmission of STECs to humans generally occurs through ingestion of food contaminated with cattle feces. The most commonly identified foods associated with E. coli O157:H7 are raw or undercooked ground beef, produce, and milk.

Transmission can also occur through direct contact with reservoir animals or their environment, through contaminated drinking or recreational water, or by close contact with an infected person. The incubation period, the time from intake to onset of symptoms, for E. coli O157:H7 is one to 10 days, with an average of three to four days.

Reporting of STEC infection is mandated throughout the United States. Individual cases are investigated, whenever possible, to determine risky exposures and potential sources of infection. Outbreaks are almost always investigated, because of the severe morbidity and mortality associated with these infections. An annual average of 4,807 cases of STEC infection was reported in the United States from 2005 through 2008. E. coli O157:H7 and E. coli non- O157:H7 cases are not differentiated in the CDC database. The estimated numbers of actual cases are much higher, as many cases go undiagnosed or unreported. The CDC estimates about 95,000 cases of E. coli O157:H7 infection each year in the U.S., including approximately 3,200 hospitalizations and 31 deaths.

Salmonella

Salmonella is a contamination of food caused by bacteria and can lead to diarrhea, fever, and abdominal cramps between 12 to 72 hours after infection. It is typically caused by undercooked , ground beef, or eggs. The illness can last four to seven days, and usually resolves without treatment. However, more severe cases can cause dehydration, or spread from the intestines to the blood stream. In these cases, prompt medical treatment with is needed.

Salmonella in some cases can cause joint pain, known as reactive arthritis, which can last for months or years and lead to chronic arthritis. Unfortunately, treating Salmonella with antibiotics will not prevent reactive arthritis. Individuals with reactive arthritis can also develop irritation in the eyes and painful urination.

The CDC estimates that Salmonella causes about 1.2 million illnesses annually in the U.S., and approximately 23,000 hospitalizations and 450 deaths. Many different kinds of Salmonella bacteria exist, with Salmonella serotype Typhimurium and Salmonella serotype Enteritidis the two most common. Young children, older adults, and individuals with weakened immune systems are the most susceptible to contracting severe infections from Salmonella.

Campylobacter

Campylobacter is an infectious disease caused by bacteria and is one of the most common causes of diarrheal illnesses in the U.S. The CDC estimates Campylobacter infections affects more than 1.3 million people in the U.S. every year. People contaminated with Campylobacter usually have diarrhea (sometimes bloody), fever, abdominal cramps, nausea, and vomiting. Symptoms usually start within two to five days and last about a week. Campylobacter can spread into the bloodstream and be life-threatening.

Many , cows, and other animals are carriers of Campylobacter, and can be transferred to edible parts of the animals when slaughtered. Milk can be contaminated if a cow has a campylobacter infection in the udder or when milk is contaminated with manure. Fruits and vegetables can be contaminated through contact with soil containing animal feces.

Most cases of Campylobacter infections are associated with eating raw or undercooked poultry or from contamination of other foods from raw or undercooked poultry. Raw dairy products, such as unpasteurized milk, are also a source of Campylobacter.

While most cases of Campylobacter resolve without any lasting or serious consequences, the infection can lead to irritable bowel syndrome or arthritis. It can also lead to Guillain-Barre syndrome (GBS), which can cause muscle weakness and that can last several weeks or up to several years. Most individuals recover from GBS, but some suffer from permanent damage or even death. As many as 40 percent of GBS cases in the U.S. may be triggered by Campylobacter infection, according to the CDC.

Listeria

Listeria is a bacterial germ found in poultry and cattle, as well as soil and water. It is present in plants and often contaminates processed meats, such as hot and ready-to- eat deli meats, as well as unpasteurized (raw) mild and dairy products such as soft cheeses, and raw sprouts. Unlike many other germs, Listeria can grow in cold temperatures (such as in refrigerators).

Symptoms of include fever, stiff neck, vomiting, diarrhea, muscle weakness, confusion, and , and usually appear one to four weeks after eating food contaminated by Listeria. An illness caused by Listeria can last a few days to a few weeks. Older adults, pregnant women, individuals with weakened immune systems, and individuals weakened by other , such as diabetes or cancer, are most at risk for contracting Listeria. Most individuals with listeriosis require hospital care, and about one in five individuals with the illness die, according to the CDC. Listeriosis is usually a relatively mild illness for a healthy pregnant woman, but can cause severe disease in the fetus or newborn child, or cause a miscarriage or stillbirth. For adults older than 65 or individuals with weakened immune systems, Listeria can lead to severe bloodstream infections and sepsis or meningitis or encephalitis.

Other causes of food poisoning

Many different bacteria, viruses, and other germs can cause foodborne illnesses, including Colstridium perfringeris, Vibrio, and botulism.

Clostridium perfringeris is a spore-forming bacterium found in the intestines of humans and animals, and is commonly found on raw meat and poultry. Some strains of C. perfringeris produce a toxin in the intestine that causes illnesses. Outbreaks can occur when food is prepared in large quantities and kept warm a long time before serving, such as in hospitals, school cafeterias, prisons, nursing homes, or at events with catered food. Symptoms include diarrhea and abdominal cramps within six to 24 hours of ingesting the contaminated food. While everyone is at risk of food poisoning from C. perfringeris, the very young and elderly are particularly susceptible. Complications, particularly dehydration, can occur in severe cases.

Vibrio bacteria can cause vibriosis, which afflicts each year an estimated 80,000 individuals in the U.S. and about 100 deaths. This illness is typically caused when someone eats raw or undercooked shellfish, particularly oysters. Certain types of Vibrio can cause a skin infection when an open wound is exposed to or brackish water. Most types of Vibrio cause mild illnesses, although Vibrio vulnificus can cause serious illness needing intensive medical care, or even limb amputation. About one in four individuals infected with Vibrio vulnificus die each year, sometimes as quickly as a day or two after becoming ill.

Botulism is a rare but serious illness caused by a toxin that infects the body's , and can cause difficulty in breathing, muscle paralysis, blurred vision, slurred speech, difficulty , or even death. Foodborne botulism occurs when food is eaten that has been contaminated with (bacteria). A common source of botulism is homemade foods that have been improperly canned, preserved, or fermented. Store bought foods can also be contaminated with botulinum toxin.

Who can be liable for food poisoning?

A food poisoning lawsuit is usually based on a theory of law known as product liability, which means that a maker, distributer, supplier, or retailer of a defective product is legally responsible for the damages suffered by someone injured by the defective product. Many states, including Massachusetts, apply what's known as strict liability to food poisoning cases (just like other product liability cases), which means liability is proven by showing that a food product is contaminated and that the contamination caused an illness.

Strict liability means that a restaurant or supplier or producer of tainted food is responsible to those affected by the food, regardless of whether the restaurant or supplier or producer knew it was tainted, and regardless of the measures they took to ensure . It is not necessary to prove negligence, which would require proof that a restaurant, supplier or producer of contaminated food was unreasonably careless.

While strict liability is a stringent legal standard, it is justified because consumers have the right to expect that sellers and suppliers of food stand behind their products. Consumers are entitled to the legal maximum protection against contaminated food. In other words, anyone involved in the chain of distribution of food (e.g., producers, suppliers, packagers, restaurants, grocery stores) have a responsibility to their customers to sell food that is fit and safe for human consumption. Consumers must be able to trust that restaurants and grocery stores are providing uncontaminated food in a safe and sanitary environment that does not jeopardize their health or lives.

Proving a food poisoning lawsuit

Proving a food poisoning case requires two elements: The food you ate was contaminated, and the contamination made you ill. This is often easier said than done due to a variety of factors. Sometimes it is hard to pinpoint the cause of your illness, or to trace what food that may have caused your foodborne illness. Any time delay can make it difficult to determine specifically what made you sick. Often, symptoms of food poisoning do not appear for a few days, if not longer.

It is easier to prove a connection between contaminated food and food poisoning if many other individuals were also made ill by the same food product, especially if a government agency investigates and traces food contamination to a particular source. A recall of the food you ate is strong evidence that the food was contaminated and made you sick.

The best way to prove that contaminated food caused you to become sick is to have a stool sample tested for food poisoning. If your stool sample has the same disease-causing virus or bacteria that has been found in contaminated food, proof of causation is greatly strengthened. If you believe you are suffering from food poisoning as a result of eating at a restaurant, you can start gathering evidence such as a sales receipt for your food bill (to prove time, date and place of your eating at the restaurant), and statements of friends or family that dined with you to help confirm your experience at the restaurant. If you have leftovers of the meal in a doggy bag in your refrigerator at home, you can have the food tested for food contamination.

What monetary compensation can be expected in a food poisoning lawsuit?

Each personal injury case is different depending on the facts and circumstances related to the claim. Consequently, it's difficult to predict average settlements or verdict amounts in the abstract. Nonetheless, several factors will impact the value of a food poisoning case.

As in any personal injury lawsuit, monetary damages depend on the severity and length of an illness or injury, medical bills, any lost wages, and the overall impact on an injured person's life (known as pain and suffering). If a foodborne illness causes diarrhea and vomiting, and forces someone to stay at home for a few days, it may not be worth the time and expense to pursue a legal claim – even with proof that a food supplier (such as a restaurant) provided the tainted food.

However, more serious cases involving hospitalization and medical complications raise the stakes considerably. Dangerous microbes like E. coli or Salmonella can cause debilitating, long- term injuries, such as kidney failure, chronic nerve damage, arthritis, meningitis, or sepsis. Medical bills can accumulate. Severe cases of food poisoning can cause infected individuals to miss significant time away from work, leading to lost income and potential financial hardships.

Some cases of food poisoning sadly can kill infected individuals. If a loved one has passed because of food poisoning, a wrongful death claim may be pursued against the responsible party or parties. In wrongful death cases, the income and support lost by the deceased individual can be paid to surviving family members.

Helpful resources on foodborne illnesses and food safety

• Centers for Disease Control and Prevention: Foodborne Illnesses and Germs • Boston Public Health Commission: Food Poisoning

• Health and Human Services (Foodsafety.gov): Food Poisoning

• U.S. Food & Drug Administration (FDA): Food Safety and Food Facts for Consumers