How Do You Prove Where You Got Food Poisoning?

How does one evaluate a legitimate foodborne illness claim? I rely on four primary tools. All four are important. Combined, they can establish an airtight case.

1. Health Department Investigation of an Outbreak or Incident

2. Prior Health Department Inspections

3. Medical Records

4. Lab Results

The Health Department Investigation of an Outbreak

While statutes and regulations vary from state to state, all states have agencies tasked with monitoring bacterial and viral illnesses associated with food consumption. The illnesses monitored include E. coli O157:H7, Campylobacter, Salmonella, Shigella, Listeria, Norovirus, and Hepatitis A. For most of these pathogens, a positive lab result from a human sample (blood or stool) triggers a mandatory report to the local health authority and some type of follow-up investigation.

The scope of the investigation varies from case to case depending on the pathogen involved, the type of food, the associated illness, the number of persons who are or may be sick, and the local jurisdiction. These factors determine the strength and quality of documentation associated with an outbreak. In most situations, the results of the investigation are either made public by the health authorities or can be obtained through public records requests under disclosure Acts, like the Freedom of Information Act. The information in those reports can be used to support a legitimate foodborne illness claim.

It is very difficult to dispute a Health Department confirmed outbreak or even an isolated case. In litigating thousands of food poisoning claims arising out of scores of outbreaks, I have seen many defendants take issue with some or all the health department’s conclusions regarding an outbreak. But I have yet to see a defendant avoid liability where the health department concluded that the defendant’s food was the source of an outbreak. One likely reason for this is that, in general, health departments do good and careful work. Despite the occasional disagreement from the pinpointed member of the food service industry, most would agree that health departments are rather cautious and conservative.

Proving a Case Using Prior Health Inspections/Violations

A common difficulty in investigating foodborne illness cases stems from the fact that the contaminated food has almost always been consumed by the time the source of an outbreak has been identified. In other words, the vehicle of transmission is gone. One way of overcoming this problem is by documenting a food service establishment’s sordid past. This is accomplished by compiling investigative reports of prior incidents or accusations of food contamination. Similarly, a history of failed health inspections or recurring problems with food production and service procedures can help build a case, using circumstantial evidence.

Supportive documents can be acquired through the discovery process afforded by litigation or through the Freedom of Information Act. The uncovered documents will help the plaintiff make his case in a variety of ways. Sometimes, there may be documentation of improper food handling procedures that can circumstantially prove the manner of contamination. In other situations, a list of improper techniques and code violations can serve as a tool for limiting a defendant’s trial options, or it can position a case for early and favorable settlement. Finally, particularly egregious or repetitive examples of improper food handling techniques can build a punitive damages case, in jurisdictions where such damages are available.

Proving a Case Using Medical Records

Medical records, if one did in fact have treatment, become critical in proving a foodborne illness case. Evidence of a possible foodborne illness source can sometimes be found in the person’s medical treatment records, such as an Emergency Room notation of a suspected food or drink item, or a lab test result confirming an infection from a specific pathogen. Documentation is the key.

What Type of Medical Evidence Can Help Make a Case?

Laboratory testing of stool cultures, and less commonly blood cultures, can identify the pathogen causing a claimant’s illness. In reviewing a claim, it is important to recognize that lab test results are not always available, as health care providers do not always order laboratory testing.

Each foodborne pathogen carries with it an expected incubation period—the amount of time expected to transpire between exposure to the pathogen and the onset of symptoms. The incubation period for some pathogens is very long, resulting in a large possible exposure window, and might be unhelpful in certain situations.

In most situations, however, it can still be useful. For example, people often assume that the last meal they consumed before falling ill was the culprit. With many pathogens, however, this is very unlikely. The typical incubation for E. coli O157:H7, for example, is 2-5 days, with an incubation range of 24 hours to 10 days.

Most common bacterial and viral pathogens found in food share reasonably similar symptoms—nausea, vomiting, diarrhea, fever, aches, chills, and the like. Isolated on their own, these symptoms cannot be used to determine the specific pathogen affecting a claimant. But they can be part of the puzzle. For example, yellow skin and eyes, or jaundice, often characterizes Hepatitis A infections. E. coli O157:H7 infections are most often characterized by excessively painful, bloody diarrhea.

Proving a Case Using Lab Tests

Health care providers may, in some instances, order testing of an ill person’s blood or stool to help determine the cause of illness. In most circumstances, a positive

result must be reported to a local public health agency pursuant to statute or regulation. Many states require reporting of positive tests for several pathogens, including E. coli O157:H7, Salmonella, Shigella, Listeria, Hepatitis A, Campylobacter, and others. It is the reporting of these positive test results that often triggers health department investigations and creates awareness of outbreaks.

When a sample of a form of bacteria, such as E. coli O157:H7, Salmonella, or Shigella, is taken from a stool sample, or a piece of contaminated food product, it can be cultured to obtain and identify the bacterial isolate. Bacterial isolates can be further broken down into their various component parts, creating a DNA “fingerprint.” By performing this procedure, scientists have been able to identify hundreds of strains of E. coli, as well as strains of Listeria, Campylobacter, and other pathogenic bacteria.