The recent news about food chains experiencing E. coli problems highlights the risk the foodservice industry faces from legal claims arising from food-borne illnesses. The law imposes liability on one who sells and provides food that is “unfit for human consumption”, and food containing live pathogens like E. coli 0157:H7 have been the subject of many lawsuits and claims, ranging from class actions and criminal investigations and charges to individual lawsuits and claims.

The kind of E. coli that can cause illness is found in human and animal feces and can be spread by contact with unwashed hands, in irrigation water, by animals in fields, and in a variety of ways. A million-dollar settlement has recently been reported in a case involving a claim that a two-year-old got E. coli from a worker at a daycare center.

While cooking food to a high enough temperature will kill E. coli, some foods that are served uncooked and are hard to clean like lettuce, cilantro and sprouts are at higher risk of reaching the consumer with the potential to cause illness. And, while most healthy adults recover from E. coli illness in a few very unpleasant days, the elderly and young children can experience kidney failure that can cause death. In our litigious society, even the minor cases can result in lawsuits.

While prevention, such as cooking and hand washing is the best defense against an E. coli lawsuit, the fact of the matter is that under the current state of the art, E. coli illnesses from uncooked food are virtually impossible to prevent completely.

While a major outbreak requires the attention of the company’s executives, managers, public relations people, and insurers, there are a couple of things that can be done by the company’s lawyers any time there is an E. coli illness claim.

The first is to verify through laboratory testing of stool samples that the person really has an E. coli-caused illness. E. coli illness can have similar symptoms to other diseases and is often misdiagnosed. Often times claimants with intestinal problems will jump to the conclusion that their illness was caused by food, especially if there is current news coverage of an E. coli outbreak or recall. Without lab tests to confirm the cause of the illness, there is a good chance to defeat the claim.

The second is to identify whether the product that is alleged to have cause the disease can be traced. If it can, liability can often be passed upstream to the supplier. In many states, this will absolve the food provider of liability as a matter of law, or will provide indemnity and defense under a contract.

By doing these things, those in the hospitality industry can be in the best position to avoid liability arising from an E. coli illness claim.

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