Can You Sue After Suffering from an Allergic Reaction?
Anyone who suffers from a serious allergy goes out into the world with a bit of caution. While some allergens, such as food and medications are fairly easy to avoid others, some are more difficult. Sometimes, people with allergies put their health into the hands of others. For example, someone who has a food allergy may trust a restaurant not to serve them that type of food.
Unfortunately, not everyone takes allergies as seriously as they should. If you or someone you love has suffered from an allergic reaction due to another person’s negligence, it is important to speak to a New York City personal injury lawyer who can advise on your case.
What are Common Allergens?
Allergies are extremely common. In fact, more than 50 million Americans experience allergic reactions every year. Some of the most common allergens responsible for these reactions include:
- Peanuts and tree nuts
- Cats and dogs
- Insect stings
Sometimes, no one is responsible for another person’s allergic reactions. For example, if a person was allergic to bee stings and they became stung while out walking, no one is likely at fault for that. On the other hand, if a restaurant did not take proper care to ensure a customer’s food did not contain an allergen, they could be held liable for paying damages for any harm suffered.
A Failure to Warn
Due to the fact that people are usually born with allergies, or they naturally develop over time, no one is actually liable for another person’s allergies. However, a person or entity can be found liable for triggering an allergic reaction in another person when it was caused by negligence. There are laws in place that everyone must comply with to ensure everyone stays safe.
One of the main laws that pertain to allergic reactions is the Food Allergen and Consumer Protection Act of 2004. Under the Act, manufacturers of food, cosmetics, and other products must warn when their product contains a common allergen. For example, if a prepared food product contained peanuts, the manufacturer has a duty to warn consumers of the presence of the allergen.
In some cases, a food may not actually contain an allergen, but it was created in a huge warehouse that used an allergen in other products. In this case, the manufacturer should also warn consumers about the potential presence of the allergen.
Proving Negligence After an Allergic Reaction
Again, no one is actually at fault for another person’s allergies. Still, there are times when someone else’s negligence, or carelessness, can trigger another person’s allergic reaction. For example, a doctor may commit medical malpractice when they fail to review a patient’s medical history and prescribe a drug the patient is allergic to. Healthcare professionals should always review a patient’s history before treating them or prescribing them medication; a failure to do so is considered negligence.
In other instances, the person with the allergies must tell someone of the allergen in order to hold them liable for a reaction. For example, a patron at a restaurant has a duty to inform their server of a food allergen when they are ordering their food. After being told of the allergen, the restaurant then has a duty to ensure the customer does not come into contact with it. This means making sure the food ordered does not contain the allergen, and that cross-contamination does not happen in the kitchen. In this case, if the customer did not inform anyone of the allergy, they cannot then hold anyone liable if they suffer from a reaction.
To prove that someone is liable for an allergic reaction, you must prove four elements of your case. These are as follows:
- Duty of care: You must show another person owed you a duty of care to keep you safe.
- Breach of duty: You must prove the other party breached their duty, which is essentially proving the negligent act that resulted in an allergic reaction.
- Causation: You must establish the link between the breach of duty and your allergic reaction.
- Damages: You must prove that you suffered losses, legally known as damages, as a result of the breach of duty.
Proving the above four elements is not always easy. For example, if you suffered an allergic reaction at a restaurant, the establishment will likely argue that you did not inform them of your allergy. They may do this even if you did tell them of the allergy in order to shield themselves from full liability. A New York City personal injury lawyer will conduct an investigation and collect evidence to refute the claims of the other party and to help you obtain the full settlement you are entitled to.
Damages You Can Recover After an Allergic Reaction
Allergies are very serious and they can result in serious harm. Anaphylactic shock is one of the most common, and most severe, types of allergic reactions. When a person goes into anaphylactic shock, their throat, neck, and face may swell, which can make breathing difficult or impossible. In the most tragic of cases, a person may pass away as a result of an allergic reaction.
If you can prove someone else was to blame for the allergic reaction, you can hold them liable for paying damages. The damages are meant to compensate you for your losses and to restore you as wholly as possible to the same condition you were in before the reaction. As such, you can claim your medical expenses, lost income, pain and suffering, and any other loss you sustained.
Call Our Personal Injury Lawyer in New York City for a Free Consultation
If you or someone you love has suffered an allergic reaction due to another person’s negligence, our New York City personal injury lawyer can help. At Silberstein, Awad & Miklos, P.C., our experienced attorney knows how to prove negligence so you can claim the maximum damages you deserve. Call us now at 1-877-ASK4SAM or contact us online to schedule a free consultation and to learn more about your legal options.