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FOODBORNE ILLNESS Part I: Dining Out May Be More of a Risk Than You Can Imagine

Mar 1, 2004 For the next two months, we will be exploring the subject of foodborne illness which, in recent years, has become a matter of great concern. Part I deals with the alarmingly high rate of contamination found in fast-food chains and unclean, poorly maintained, or badly managed restaurants. Part II will cover the different types of foodborne illnesses as well as symptoms, diagnoses, avoidance, related cases and litigation, and listings of outbreaks for each.

Cleanliness in restaurants, cafeterias, sports arenas, hospitals, cruise ships, passenger jets, schools, and other places that sell or dispense prepared foods is literally a matter of life and death. Unfortunately, poorly maintained restaurants, disregard of sanitary rules, and sub-standard inspection practices have reached epidemic proportions and, as a result, public health is being put at risk to a far greater degree than most people even imagine. Every locality, from major cities to small towns, is regularly exposed to significant dangers from foodborne illnesses emanating from individual eating establishments as well as from restaurant chains and food manufacturing and distribution plants.

Many people rely on little more than their own judgment or restaurant reviews to form an opinion as to how clean a restaurant is. Unfortunately, without knowing more about what is actually going on behind the scenes, customers often have their sense of well-being shattered by a cockroach walking across their table, a mouse in their fried chicken, or a trip to the emergency room (or worse). Today, such occurrences are on the rise, and the consequences are becoming more and more serious all the time. In fact, litigation based upon foodborne illnesses has dramatically increased in the past few years.

Is “Dirty Dining” On Today’s Menu?

In order to help maintain appropriate sanitary conditions in restaurants, the Food and Drug Administration (“FDA”) drafted the Food Code, a set of rules which is updated every two years. The Food Code includes recommended temperatures for cooking, cooling, refrigeration, reheating, and holding food in food-service establishments.

Finding a foreign object or substance in your food can be an unsettling and nauseating experience. Sometimes, the kinds of things found in food simply defy the imagination. Insects (whole or parts), rodent droppings, live worms, maggots, mice, condom wrappers, used band-aids, flies, sharp metallic objects, broken glass, garbage, other food that is rotten or spoiled, and blood are some of the things customers or health inspectors have found in food that is being served to the public. In one case, an employee of a fast food restaurant was actually observed bleeding from a hand wound onto a customer’s order. Thus, the first lesson to be learned is that, when eating out, you should always pay close attention to what you are eating as well as to your surroundings.

In November of 2003, Dateline NBC presented a report on the fast food industry called “Dirty Dining.” Using hidden cameras, the network’s goal was to heighten the public’s awareness of the extent to which tens of millions of people are exposed to unsanitary and unhealthy conditions every day at America’s top 10 fast food chains. One hundred restaurants from each fast food chain, a total of 1000 in 38 states, were examined.

The investigators were looking for “critical violations” which are situations that may result in food becoming contaminated. Such violations include things like handling ready-to-eat food with bare or unwashed hands, undercooked meat, improper food holding temperatures, sick employees preparing food, the presence of insects or rodents, or anything else which poses a direct health risk to the customer.
The following list ranks the various restaurant chains inspected from best to worst. The list includes the number and nature of the “critical violations” found.

    * Taco Bell: 91 critical violations including dirty food preparation, unclean counters, and rodent droppings.
    * McDonald’s: 136 critical violations. In addition, some locations did not have a certified food handler on the premises which is required by law in most states. The food handler is responsible for guaranteeing that meat is prepared properly and in accordance with health regulations.
    * KFC: 157 critical violations including salmonella poisoning.
    * Subway: 160 critical violations, the most prevalent being a recurring problem of improper food holding temperatures which promotes accelerated bacterial growth.
    * Jack in the Box: 164 critical violations mostly related to food borne illness.
    * Dairy Queen: 184 critical violations for grime, debris, and an inaccurate thermometer.
    * Hardees: 206 critical violations due to the presence of insects and rodents. One restaurant was even cited for not having soap in the employee sink while employees were found handling ready-to-eat food with their bare hands.
    * Wendy’s: Also had 206 critical violations including improper food holding temperatures, mice droppings on shelves, bare hand food contact, and one food borne illness complaint.
    * Arby’s: 210 critical violations for improper hand-washing and employees handling ready-to-eat food with their bare hands.
    * Burger King: Had the highest number of violations with 241. One Burger King in Virginia had 14 separate critical violations including employees not washing their hands, uncovered food in the refrigerator, grime and debris on the ice chute and drink machine at the drive-thru window.

The results were shocking to say the least. More than 60% of all the fast food restaurants that were examined had at least one critical violation in the last year and a half. Out of the 1,000 restaurants included in the investigation there were a total of 1,755 critical violations and 613 restaurants were cited at least once.

While all of these particular critical violations were cited by health inspectors, government agencies should not have to be relied upon to find such problems since such a procedure is, at best, a hit or miss proposition. Restaurants should have their own internal standards and all owners and managers should be responsible for conducting daily inspections. Steve Grover, a representative of the National Restaurant Association argues that “99.9 percent is not good enough when it comes to food safety.” Most customers would certainly agree with this statement since they are placing their trust in restaurants to provide an acceptable standard of cleanliness that should never be compromised.

After this expose was aired, each of the restaurant chains profiled responded to the NBC report. Some were more critical of themselves than others, some were apologetic, and some were defensive. On the whole, however, all expressed concern and each promised to do whatever was necessary to ensure that the problems were taken care of and avoided in the future. The actual letters can be found on the web at

Fast food restaurant chains are not alone when it comes to critical violations that subject members of the public to foodborne illnesses or death. Individually owned restaurants, even quite exclusive ones, are prone to serious health risks when food inspection and handling falls below acceptable standards. In California, investigative reporters, Will Harper and Kelly Luker, compiled a list of restaurants which they deemed “The Dirty Dozen.” These restaurants were chosen by reviewing restaurants with the lowest inspection scores (from 0-65 out of a possible 100) and the most, or at least the most severe, consumer complaints. They looked at data from January 1999 through May 2000 and then conducted their examination. They based their search on a visual assessment of the restaurant and the preparation, and taste of the food.

Although some of the restaurants had been closed several times for repeated critical violations, they continued to reopen. According to Harper and Luker, “[d]epartment officials are loath to punish violators. Between Jan. 1st 1999 and April 30th 2000, records indicate that the county shut down only 21 restaurants—usually for less than a day.” Again, the results were less than satisfying. Most of the restaurants they investigated served Asian cuisine and none of them made the grade. One major reason for this may be that Asian customers prefer lunch plates of shrimp and pork at room temperature which can be breeding grounds for bacteria. One Chinese restaurant was shut down three times due to housekeeping problems, preparing raw food near vegetables, stinky garbage, inappropriate hygiene by employees, yet it continued to reopen without permanently correcting the problems. Most of the Asian restaurants in this study were found to have repeated violations such as food being stored at improper temperatures, vermin, and unsanitary kitchen facilities. The “Dirty Dozen” report can be found at

While the previous two studies targeted restaurants, an investigation by ABC Action News in Tampa, Florida was aimed at the State’s inspection system after a woman suffered salmonella poisoning as a result of eating at Fat Cats BBQ, a restaurant in the Bay area. She now has permanent health problems which have left her crippled. In all, 33 people got sick from eating at Fat Cats BBQ, most of them suffering salmonella poisoning.

ABC found that the problem was not simply one bad restaurant. Instead, the difficulty seemed to be the product of a poorly run health inspection program. Too few inspectors with too many restaurants to inspect properly caused the existing inspectors either to rush their inspections or even fabricate the results in order to “make quota.” In fact, one inspector who falsified reports was actually promoted to supervisor. It was no wonder, then, that the severe problems at Fat Cats BBQ were simply overlooked until it was too late.

Geoff Luebkemann, the Director of the Division of Hotels and Restaurants, even admitted that the quality of inspections must be improved and that additional inspectors were needed in order to achieve that goal. One of the victims, however, feels that she was let down by the very people who were supposed to protect the public from unsanitary restaurants.

With all of these potential problems lurking in any given restaurant, it is important to know how to avoid getting sick from bad food or unsanitary conditions. Phil Lempert, who wrote an article entitled “Dirty Dining Out,” offers many helpful suggestions for safer dining. Here is his checklist of what to look for and what to avoid:

    * Check out the restaurant in the newspaper or on the internet. Some cities have mandatory cleanliness postings available.
    * Inspect the restaurant upon walking in. Chefs and health inspectors agree that a clean bathroom is a good indicator of the level of cleanliness in the entire restaurant. Observe the wait staff’s personal hygiene. After all, these are the people who will be handling your food. So, if you cannot look at the kitchen or the chef, the appearance of the wait staff might be a good indicator of the overall standards of hygiene at the restaurant.
    * If the restaurant has refrigerated display cases for desserts or other foods, touch the outside to make sure it is cool and look through the glass to make sure that the case is clean and the foods appear fresh.
    * Make sure that your table is cleaned with clean paper towels and disinfectant before you are seated. Cloth towels and sponges are breeding grounds for bacteria if they are repeatedly used, not laundered or disinfected properly, or not regularly replaced.
    * Condiments should be in one way serving containers like a squeeze bottle. Ask for fresh oils and butters if it looks like the ones at your table have already been used. (We might add that open bowls of pickles that remain on the table from sitting to sitting should be avoided. Likewise, any condiment dispenser that appears to be dirty or encrusted with dried condiment should not be used).
    * Plates, glasses, and silverware should be spotless, uncracked, and unchipped.
    * Be sure to order your foods cooked properly and avoid raw or undercooked foods like steak tartare, or raw shellfish. Inspect your food carefully before you start eating. Avoid meats that are blood red or rare, chicken that is pink or bloody on the inside, runny eggs, shellfish that does not have the shell open and fish that does not flake to the fork.
    * If your food is not prepared properly SPEAK UP! Send it back to the kitchen and be sure that when they bring it to you again, the other foods on the plate are new as well. Cross-contamination caused by tainted or undercooked foods is a serious problem.
    * When “doggie bags” are necessary, make sure all the foods are packaged separately and refrigerated within an hour of leaving the restaurant.

On February 29th, NBC aired an update of its “Dirty Dining” expose. Dateline investigators went back to some of the restaurants that were part of the original sample to see if the dangerous conditions had been corrected. Since the original story aired, 34 of the restaurants have had new inspections done by experts. Although one Wendy’s which was had been found to have mice droppings during the first inspection had improved, old food was found sitting around. One McDonald’s that originally had four critical violations was now found to have six, including a temperature problem with the breakfast burritos. A Jack in the Box that had eight critical violations in the November report now had none and significant improvements had been made. A KFC that had cockroaches during the first inspection still had cockroaches when the follow up inspection was done.

Many of the individual restaurants had improved and the overall number of critical violations decreased. Some restaurants no longer had any critical violations. Some franchise owners even credited the original Dateline story with prompting them to take a closer look at the unsanitary health conditions in their restaurant. Clearly, the only way to be completely certain that a restaurant is complying with health standards and regulations is to have it checked each and every day. Hopefully, many restaurants have changed their procedures based upon the various investigative reports and news articles.

The New York City Department of Health and Mental Hygiene conducts unannounced inspections of all food-service establishments in the City so that a restaurant will not have time to cover up unsafe practices. Other cities have similar inspection procedures, yet there is no guarantee that every restaurant is operating safely at all times. You remain your last line of defense each time you dine out. The importance of being vigilant cannot be overstated.

While some problems may be minor and easily corrected, some are quite serious and may even be life threatening. In either case, however, the public is at risk and should neither be exposed to a minor bout of indigestion nor a serious, or even, fatal illness. Since there are many sources available to check the inspection history of a restaurant in most cities, you should always take advantage of them. You should also check published restaurant reviews and ask people you know about their dining experiences at restaurants you intend to go to. The following is a list of websites containing information about restaurant inspection:

If you or a loved one has suffered a restaurant-related foodborne illness or other injury, contact Parker and Waichman for a free case assessment. If you eat out and become ill following your meal, you should contact your physician, call 911, or go to a hospital emergency room immediately. Since many serious illnesses begin with relatively minor symptoms or even mimic less serious ailments, you cannot be overly cautious when reacting to a food-related sickness. Next month we will thoroughly discuss the different types of foodborne illnesses as well as symptoms, diagnoses, avoidance, related cases and litigation, and listings of outbreaks for each.
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