Can you Sue for Swine Flu?
Claims for Catching Contagious Diseases Including Swine Flu
Whether you have spent a couple fretful days wrestling with a nasty bug, or sat by a loved one's bedside after he or she was hospitalized with serious complications from the flu, you might have wondered whether the whole episode could have been prevented had the classmate, co-worker or friend that spread the bug chosen to stay home. Recently, outbreaks of the H1N1 influenza (swine flu) across the globe have been alarming because of the sometimes deadly consequences, even among young and apparently healthy victims.
For victims of the swine flu, the initial global reaction from public health authorities as well as the media, created a flurry of interest and fear. Predictions of global pandemics and numerous deaths in Mexico, the site of the initial onset of the H1N1 influenza, and around the world have proven false, at least for the 2009 spring flu season. But public health authorities and the media have speculated that the next few flu seasons could spark the deadly pandemic that was initially predicted, like the pattern of the 1918 Spanish flu outbreak that killed millions around the world after a more limited initial outbreak in the spring of 1918.
Do you Have a Claim for Catching the Flu?
You may have a claim for catching the flu, but it depends on several factors including what the person who gave it to you knew and said, whether he or she had a duty to warn you or protect you, and proving who gave you the illness as well as damages that you suffered. In fact, you might be able to pursue several different types of claims ranging from negligent transmission of a disease to intentional acts such as battery, fraud or intentional infliction of emotional distress. Certain parties with special relationships, such as spouses, landlords or tenants, and physicians may have a higher standard of care than the average person depending on the circumstances. And, in some cases, an employee may be eligible for worker's compensation benefits as well as a claim against the person who spread the contagious disease, if the employee contracted a serious illness while working in the normal course of employment.
To pursue a claim of negligent transmission of a contagious disease, such as swine flu, a sexually transmitted disease, or any other contagious disease, the plaintiff must show several things:
• that the defendant had a duty to exercise reasonable care to avoid contact with the plaintiff or to warn the plaintiff of the illness;
• that the defendant breached the duty;
• that the defendant's breach caused the plaintiff's illness; and
• that the plaintiff has suffered damages.
If these elements can be shown, then the plaintiff can pursue a claim for negligent transmission of a contagious disease. Most of the modern cases on negligent transmission of a contagious disease are related to AIDS, HIV and sexually transmitted diseases, such as herpes, but early cases also dealt with non-sexually transmitted disease such as small pox or whooping cough. Thus, while a successful suit on a claim for negligent transmission of the flu would be rare, if the facts support it and the plaintiff (or the plaintiff's loved one) suffered serious damages or died, a successful claim based on swine flu could be possible.
Is your Cough Drawing Glares Across the Conference Room?
Did you come to work sick and now face glares every time you sniffle or cough? Even if you have an important meeting or dwindling sick time, you may want to reconsider and go home or warn everyone to stay back from your cubicle for the day. While a successful claim by a flu victim may be rare, office or school etiquette may dictate that you remain home, because if it is foreseeable that you could get your co-worker or classmate sick, you could be on the hook for damages. The best preventive medicine may be to just stay home and rest.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.