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Rick Shapiro
Rick Shapiro
Attorney • (800) 752-0042

Food Poisoning–Doctor’s Diagnosis Okay Without Lab Test Proof

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Virginia law has a special “food warranty” that is an obligation on any seller or distributor of foods or consumable or edible products. The warranty provided by such sellers is that the product or consumable is wholesome for human use. The violation of this warranty may impose strict legal liability on the company or person under Virginia law making the person or company responsible for personal injury damages. A doctor’s diagnosis of “food poisoning” may be sufficient, even without outside laboratory testing.

This type of personal injury liability would be imposed on a company that produces water for human consumption, that sells food products whether in a retail store or in a restaurant, and any other similar food sales company.

A high degree of care attaches to the company or person providing the food for sale and consumption. As in any case, it is important to save a receipt showing a purchase whether in a restaurant or a retail establishment and it is important to hold on to any available evidence that can confirm the personal injury caused by the food product. Companies that defend these cases are highly suspicious of these claims so it is important that witnesses and independent corroboration evidence be located as soon as possible.

The Virginia Supreme Court addressed food warranty law in a 2005 case, reversing a lower court decision. The injured person’s doctor had diagnosed illness from the food source connected to the defendant restaurant, but the restaurant argued that the doctor had not conducted any independent testing to confirm his diagnosis that the illness was connected to the food the restaurant provided. The lower court agreed with the restaurant, but the Virginia Supreme Court ruled that no case in Virginia had ever required “independent laboratory testing” to confirm food poisoning, so long as a proper physician diagnosis took place. The Court specifically ruled in the Bussey case:

In the context of unwholesome food, the proof necessary to sustain a cause of action based upon negligence or breach of warranty is the same. “[T]he burden requires the plaintiff to show ‘(1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant’s hands.’ ” …. The implied warranty of wholesomeness applies to the sale of food by restaurants…. With regard to proximate causation where there is no direct proof, the circumstantial evidence must be sufficient to show that the causation alleged is “a probability rather than a mere possibility.” [citations omitted].