What do patrons need to establish to bring a claim or lawsuit following a Norovirus (viral Food Poisoning) outbreak linked to a Restaurant?
According to one of the nation’s preeminent food poisoning attorneys, Ron Simon, “that depends.” According to the CDC, Norovirus is the most common source of food poisoning in the United States. Norovirus, as the name indicates, is a virus. And it is highly contagious! Norovirus can survive for hours on cold surfaces, making it resilient, before being touched by a person and, in the case of a restaurant, spread around the kitchen. It must, however, be ingested to make a person sick, which makes it food borne. Many people get Norovirus, but outbreaks in restaurants remain relatively rare because most restaurants have in place proper food handling practices, including a dedicated hand-washing station/sink, good hygiene standards, and do not allow employees with recent gastrointestinal illness work. But exceptions exist, and in the right conditions, Norovirus can spread easily in a restaurant kitchen and infect dozens if not hundreds of patrons in a single evening.
Can a patron sue for a Norovirus illness? Again, that depends. According to Simon, one of two things needs to happen to prove that a restaurant is at the center of, and hence liable for, Norovirus illnesses. In some cases there are so many illnesses in such close proximity with the sole commonality being a particular restaurant. In that case, sheer circumstantial evidence is sufficient to prove that a particular restaurant is at the center of the Norovirus outbreak. In the other scenario, epidemiological evidence is used, with testing of the victim’s feces (a stool sample is sent to the health department for testing in most case) along with testing on the food being served. Because Norovirus onset is so sudden, often within two hours, and multiple reports get made in short-order to the local health agency, the former is the most common method of establishing that food borne illness came from a particular restaurant.
As noted, Norovirus in known for its rapid onset, violent presentation (vomiting, nausea, diarrhea, etc…), but (on the good side) its brevity. Norovirus illness often wains after 36 to 48 hours, lending credit to its common misnomer “48 hour stomach flu.” And while this may seem an eternity to a patron who acquired Norovirus, that is relatively short compared to other forms of food poisoning. In fact, most physicians will diagnose a patient with gastrointestinal illness as Norovirus, viral gastroenteritis, or the stomach flu/stomach virus, when a person initially presents. This is because the majority of gastrointestinal illness are Norovirus. But in cases where such illness lasts more than three days, that changes the likely diagnosis. “If gastrointestinal illness does NOT resolve in two or three days, it is likely bacterial in etiology,” says Simon, “and at that time a stool culture is often ordered, as the physician is now looking for something like salmonella or E. coli.” According to the CDC, victims of salmonella and E. coli usual have a minimum of 7 to 10 days of symptoms.
When asked “how” to bring a restaurant claim, or even a food poisoning lawsuit, Simon explained: “I always recommend people contact a food poisoning lawyer who knows how to establish causation in a food poisoning case, with experience working with public health agencies, and who had litigated food borne illness cases in past.”
Norovirus outbreaks are the exception, not the rule, but when they do happen, the victims may have options in terms of bringing a claim or, in some instances, even filing a Norovirus lawsuit (or more generically, a food poisoning lawsuit). Reporting an illness to a local health department, at the least, is prudent to help prevent the further spread of a viral or bacterial infection.
