Thursday, May 3, 2012

A Chicken Bone Got Stuck in My Throat, Does The Restaurant Pay the 10k Medical Bill?

You went to your favorite restaurant, ordered a nice frosty margarita and nibbled on those great greasy chips after adding more salt. The waitress stops at your table, pad in hand, waiting for you to order, by number of course. Instead, in your best spenglish, you say "dose polo enchiladas por- fave-or," knowing phonics works only in a Mexican restaurant.

When she returns, the waitress places your order on the table, smothered in cheese, with beans and rice. You politely wait for your table mate to pick up a fork and you dig in. Suddenly on the second bite, a bone lodges in your throat, small but painful. Your friend's best Heimlick fails to dislodge the bone so off to the hospital you go.

After anesthesia and a minor surgery, the hospital discharges you and sends you a bill for ,000. Many of you might assume that the restaurant that served your favorite chicken enchilada, with a spare chicken bone, is responsible for your medical bills. Not so in California.

The State previously enforced a strict liability finding for improperly prepared food. Strict liability imposed on the restaurant the obligation to pay for food improperly prepared by it. The restaurant should prepare food like you and I do at home, with care and caution. Your common sense was right until the Supreme Court of California went through a political appointment change.

In a case very similar to this one, the California Supreme Court concluded that if the object in your food was not "foreign", but was a natural object that could occur in preparation of that type of food, chicken bones in chicken enchiladas, then strict liability should not apply. Instead the patron is required to prove that the restaurant was negligent in the preparation of the food. "We got them" you say, that should be easy!

As it turns out, it is very difficult to prove that the restaurant did something that an ordinary prudent restaurant chef would not do. Your first deposition is of the person that prepared the enchilada. Of course he testifies he prepared the enchilada properly, cooking the chicken meat, then stripping it from the bone, and carefully making sure there were no stray bones. He tells you he has never had this problem before. In negligence law, you cannot just assume the bone was there because of negligence, instead you must show what the chef did wrong.

To make your case, you hire an expert, a chef that evaluates the testimony and tells you that the chef did what every chef would do in the business. He does however offer that there should have been no bone if the chef did as he said he did. On cross examination the defense attorney asks your witness "Mr. Expert, are you saying that no chicken bone would ever be missed by this method." You expert answers honestly that he cannot say never.

Lastly, you plead to the judge, that fairness dictates you be paid the medical bill. "After all Judge, I did nothing wrong," you say. The judge raises his hands and says they are tied, as you vaguely recall his similarity to the Turkish judge in Midnight Express.

When you return from the battle, your throat hurts, and you feel like getting a frosty margarita. Unfortunately, you can't afford to go out until you pay the hospital bill, and probably would not feel comfortable drinking at the same restaurant, fearing that a large chunk of salt, clearly not a foreign object, will accidently lodge itself in your throat.

In the last fifteen years, the legislature made no change in the law. We protect the business, because it promises, without penalty, to do a good job. Besides, you can afford health insurance and the extra bills can't you!

1 comment:

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