Why You May Be Seeing More Food Poisoning Claims & What To Do About It
One of our members recently noted the following:
"Last week on the TV show "The Defenders" there was talk of suing a restaurant, and that generally restaurants just settle food poisoning at $4,000-$6,000 to make it go away.
In the last week since part 1 aired, our restaurants have gotten TWO phone calls trying to say they got food poisoning at our place. Normally we get about one or two a year.
Do shows like this and similar scenarios increase the likelihood of lawsuits and threats of them and how do you think readers should deal with ambulance chasers like that? There will be a follow up episode soon (this Friday) and I'm sure it will bring it up some more".
Restaurant Startup & Growth editor Barry Shuster teaches hospitality law and ethics at two North Carolina universities. He responds:
Unfortunately, the professions of law and medicine have been adversely affected by their inaccurate portrayals on television, which provide the public with unrealistic expectations of both. Whether of not the complaints you have received are related to the television show, it sounds as if in both these recent cases it was your guests, not their lawyers who contacted your establishment. Perhaps they thought that you or your insurer would write a check for them to go away. The real world does not operate this way.
Of course, bona fide food safety emergencies, (e.g. discovering that a food handler has a communicable disease such as hepatitis or involves an acute illness of a number of guests) are serious matters and require prompt attention. Hopefully, your restaurant will not be confronted with such a situation. A very good primer to assist you in the unlikely case this occurs is "How to Respond to a Food Safety Emergency."
More on point in regard to your recent situation, occasional and isolated food poisoning complaints are not uncommon and deserve attention; however, they are a different story from a food poisoning emergency. "Handling Complaints with Potential Liability" provides some good advice, including always document the complaint and never to admit liability.
Often guests who have experienced some type of distress after eating at your restaurant will be satisfied by your show of concern and not pursue any further remedies. Those with fraudulent claims will get frustrated and go away if they realize that you are not panicking and won't roll over and open your checkbook.
As many attorneys have found, isolated claims involving only one or two guests are difficult to prove against the restaurant and often involve minimal damages, such as a trip to the emergency room and a few days missed work. Since these prospective plaintiffs (the party who sues) typically seek to enter into contingency fee agreements (i.e., the lawyer accepts a percentage of the settlement or award, if any) many attorneys will turn down these cases on the basis of economics alone. My point is just because a guest threatens a lawsuit does not mean he or she will be able or willing to file a lawsuit, let alone prevail. The burden of proof is on the plaintiff, who may have become ill from food eaten somewhere else, or whose symptoms could have been caused to an illness unrelated to food.
If you are sued for an alleged food poisoning complaint, notify your general liability insurer and your attorney immediately. Never "sit" on a lawsuit or try to resolve it yourself. If the complaint is fraudulent or lacking merit, your or -- most likely -- your insurer's attorneys can get to the bottom of it. True, insurers will often settle these matters for small amounts to save time and legal fees, and you cannot control this. However, the best you can do is to be methodical and professional. Show concern. Document the complaint for evidence. Investigate the matter. Do not admit liability. If the guest believes he or she has a legitimate food illness complaint against your restaurant, he will have to prove it to your insurer or to a court of law.
For Your General Information Only: Legal advice must be tailored to the circumstances of each case, and laws constantly change. Federal laws, the laws of each state, and often each municipality vary and each may have its own procedures and time limits that must be followed. Seek local counsel to assess your legal rights.