Personal Injury

First Swine Flu Casualty

  • The first reported swine flu casualty in the US is a New York City assistant principal, Mitchell Wiener
  • Mr. Wiener's family filed a "notice of claim" against New York
    seeking $40 million dollars in damages


By July 2009, more than a million Americans had already been infected with swine flu, more than 5,000 have been hospitalized since the outbreak began and 302 have died. The numbers are expected to increase in the winter months.

What Is Swine Flu?

Swine flu is the H1N1 viral strain of influenza. It's been labeled swine flu because initial testing showed many of the genes in the virus are similar to influenza viruses that are carried by North American swine.

In late April, Margaret Chan, the World Health Organization's director-general (WHO), declared a "public health emergency of international concern" when the first cases of the H1N1 virus were reported in the United States. On June 11, the WHO declared swine flu a global epidemic, the first worldwide pandemic in 41 years.

The media has published scary figures relating to swine flu. In the US, it appears that for every 1000 people who get infected, about 40 people will need hospitalization and from those, at least one person is predicted to die. However, it's important to understand that those figures are similar to the figures for regular influenza.

While there are predictions that swine flu will become a major global pandemic in the winter months, it's expected to be moderate. Most of the sufferers will experience only mild symptoms and will fully recover. Most people who contracted the H1N1 virus have complained of mild, seasonal flu-like symptoms such as fever, cough, sore throat, body aches and fatigue.

How Did the Outbreak Start?

The outbreak came to global notice in late April 2009, when officials in Mexico noticed an unusually large number of hospitalizations and deaths among healthy adults. While much of Mexico City shut down during this panic, cases began to pop up in New York City, the southwestern US and around the world. The virus is now widespread in the US and continues to spread from one country to another. The WHO has been unable to contain the virus, arguing that it has already spread too widely.

New York - First US Victim of Swine Flu

Mitchell Wiener, 55 years old, died on May 17, 2009. He is the first reported victim of swine flu in New York. Mr. Wiener was an assistant principal at Intermediate School 238, a public school in Queens, New York, where there was a swine flu outbreak. After Mr. Wiener was hospitalized and died, his widow and three sons brought a notice of claim against the City of New York, charging the city with failure to react quickly enough to the swine flu outbreak at the school where Mr. Wiener worked.

What Did the City Do Wrong?

Mrs. Wiener and her sons allege that the city:

  • Failed to warn her husband he'd been in contact with people who had tested positive for the virus
  • Didn't act fast enough to stop the transmission of the disease
  • Didn't spread adequate information about health conditions that would increase the risks of the virus
  • Didn't provide a safe working environment for Mr. Wiener and other school employees

    This is the second claim related to swine flu against the New York City. The other claim was filed on June 18 by an inmate at Rikers Island claiming mental anxiety because of a potential flu outbreak.

    The City's Response

    When information about Mr. Wiener's illness became public, Mayor Bloomberg held a news conference and said the public health system had been effective in detecting the outbreak, and that the city is "acting as promptly as the evidence requires us to do." After his death, Bloomberg commented that "the city didn't do anything wrong." He says the city has an obligation to keep schools open, and that he's sorry Mr. Wiener died.

    Additionally, Mr. Bloomberg and the city's health commissioner, Dr. Thomas R. Frieden, explained that Mr. Wiener had underlying health conditions that made him more susceptible to the virus. They did not specify the conditions, but the city's medical examiner later found that obesity and hypertensive and arteriosclerotic heart disease had been contributing factors in his death. It's believed that swine flu will be particularly dangerous to people who are ill, have poor immune systems, the elderly, the young and pregnant women.

    As of July 7, when the city's Department of Health and Mental Hygiene last updated its data, there had been 47 deaths and 909 hospitalizations in New York City of people with confirmed cases of swine flu. Health officials estimated that more than half a million New Yorkers contracted swine flu.

    Can the City of New York Be Sued?

    Suing a government for private injuries is a different process from suing an individual person. You cannot simply send a complaint to the government or school. Government entities, such as states, counties and cities have what is known as "sovereign immunity", which means that they can only be sued if they decide to allow themselves to be sued and require a different process than is used when suing a private entity.

    In New York, in order to sue such a government entity, you first must file a notice of claim within 90 days of the event that caused the injury. The purpose of a notice of claim is to put the city on notice that a lawsuit is on the way. In order to be able to file an actual lawsuit, you first must fulfill this obligation. Here, the Wiener's have done so. They sent the city a notice of claim within the proper time limit.

    What Are the Legal Claims?

    Mr. Wiener had been sick with swine flu for nearly a week before his school was closed, three days before his death. The school has been criticized for failing to close when students were ill. "They can close because of snow, but not because of an illness that can be potentially deadly?" Mrs. Wiener questioned.

    The Wiener's claim that if the school taken prior precautions and closed, then Mr. Wiener wouldn't have died. The essence of their legal claim is wrongful death. Wrongful death occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. The deceased's family members can bring this claim on his behalf. They can seek compensation for the personal injury, pain and suffering and expenses incurred before the death.

    Here, the surviving spouse and children are bringing a wrongful death action on behalf of Mr. Wiener and are seeking damages for his pain and suffering, medical expenses, loss of companionship on behalf of Mrs. Wiener and loss of moral support, companionship and counsel by the Wiener's three sons. They are seeking $40 million dollars.

    Will This Lawsuit Succeed?

    Whether the lawsuit will succeed is a tricky and interesting question. Mr. Wiener had prior medical issues that made him particularly vulnerable. Furthermore, the city and schools cannot be placed in a position where are responsible for such deaths, especially when a pandemic is expected.

    The city needs to balance the people's obligation to attend work and school with protecting them from potential dangers; however, whether the city has a responsibility to protect its citizens from the flu is another story. Nonetheless, this action as well as the fear of future suits will likely cause changes in the City's behavior and policies with respect to swine flu, especially in schools and other public institutions.

    Questions for Your Attorney

    • The death of a human being
    • Caused by another's negligence, or with intent to cause harm
    • The survival of family members who are suffering monetary injury as a result of the death, and
    • The appointment of a personal representative for the decedent's estate
    • Could a school district face liability if it fails to take precautions to keep students healthy and protected from exposure to swine flu or similar contagious illnesses? What if schools refuse to change policies such as honors or rewards for perfect attendance and providing infection prevention measures such as hand sanitizers when asked to do so?
    • Can schools or governments require immunization for illnesses such as the swine flu and seasonal influenza for people who want to use public amenities and facilities?
    • Could someone using a public resource of facility, such as a school face any liability for failing to disclose that he has or had swine flu? For example, a student who fails to tell school officials that he has the illness?
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