Two days before Christmas in 2014, doctors diagnosed a man living in an apartment complex in New York City as having Legionnaires’ disease.
In February 2016, the man sued the corporate owners of the complex, alleging he contracted the illness because the ownership failed to “properly manage and maintain the premises,” including the cooling towers. As a result of the owners’ alleged negligence, the lawsuit said, the cooling towers had become “contaminated with bacteria and viruses, including legionella,” causing people to become infected; the plaintiff required medical care and was alleged to be permanently disabled. A demand for $750,000 followed.
Tapped to defend the corporate entity that owns and runs the complex, Goldberg Segalla’s Legionnaires’ Disease practice developed defenses that ultimately led to a successful mediation that saved hundreds of thousands of dollars for its client.
This New York City suit, one of over 25 cases handled by Goldberg Segalla’s Legionnaires’ practice since 2016, is emblematic of a national trend. Sweeping America is a growing tide of lawsuits arising from diagnoses of Legionnaires’ disease, a form of pneumonia isolated and named after an outbreak at the July 1976 American Legion convention in Philadelphia that left 34 people dead and 220 sick—all from breathing the mist of water circulated through a contaminated hotel cooling tower.
Legionella causes legionellosis, the most virulent form of which is Legionnaires’ disease, a severe kind of pneumonia accompanied by cough, high fever, chest pain, and often nausea, vomiting, and diarrhea. Legionella is found in natural water bodies, including lakes, rivers, and streams and even to some degree in chlorinated municipal water systems.
Most of the time concentrations of the bacteria are so low they are harmless. But under certain conditions such as stagnation and water temperatures of a certain level—generally, from 90 to 115 degrees—non-detectable background levels of the bacteria can rapidly expand to levels constituting a health risk if the affected water becomes aerosolized and therefore inhalable. That is how someone contracts Legionnaires’ disease.
Amid the ongoing 20-year increase in such claims, Goldberg Segalla has become home to the only coordinated national Legionnaires’ practice dedicated to litigation and consultation, says Baltimore-based Thomas M. Bernier, a partner at Goldberg Segalla and the firm’s National Legionnaires’ Disease Litigation Coordinating Counsel. Including Tom, the expanding practice now includes four partners and four associates across the firm’s footprint. All of them have experience not only handling Legionnaires’ case litigation but also working with some of the nation’s top experts in the field. These attorneys have counseled clients facing matters related to Legionnaires’ disease outbreaks at every stage, providing rapid-response counsel for over a dozen outbreak investigations in 12 states and advising insurers and general counsel and top executives on risk avoidance, compliance, and crisis management.
As recognized authorities on legal and regulatory matters related to Legionnaires’ disease with experience counseling and defending claims in various, complicated outbreak scenarios across the country, they have the knowledge as well as the practical skills to step in, triage, and turn around investigations and claims that have spiraled out of control.
‘Heated discussion and debate’
The nationwide increase in Legionnaire’s claims is attributable to a rise in the number of people contracting Legionnaires’ disease.
The number of new cases reported by local health departments has risen from 1,110 in 2000 to 8,300 in 2018, according to the Centers for Disease Control and Prevention. The number of actual new cases is even higher—maybe by as much as 70,000, according to an August 2019 estimate by the National Academies of Science, Engineering and Medicine. This is because isolated cases of Legionnaires’ disease often go undiagnosed. From 2000 to 2014, 19 percent of Legionnaires’ outbreaks were associated with long-term care facilities and another 15 percent with hospitals, they report. Also affected by outbreaks of the disease are hotels, condominiums, restaurants, groceries, hospitals, assisted-living facilities, health spas, fitness centers, fairs, and other venues with centralized potable hot-water systems.
Multiple factors are behind the rise in Legionnaires’ disease. There was the phasing in, in 2002 and 2012, of new Safe Drinking Water Act rules on disinfectants and byproducts that led to the lowering of chlorine levels in some water supplies. There are increasing water and energy conservation measures which store and recycle water supplies. Showerheads and other fixtures that dispense reduced amounts of water and retain more can lengthen the time water sits in pipes which contributes to Legionella bacterial growth. Additionally, lower water-heater temperatures allow bacteria such as legionella to survive and grow.
Defining the guidelines
In the New York City apartment complex case, the legionella was found in a cooling tower. According to Tom, New York City has as many as 1,200 towers with evaporative heat exchangers, usually installed on the top of a building as part of its air conditioning system and through which water and air are brought into direct contact with each other to reduce the temperature of the water.
“Cooling towers, like many water systems, contain non-detectable levels of legionella, which can rapidly amplify to dangerous levels under certain conditions if not properly treated,” Tom wrote April l4, 2019, in “Attention New York City Cooling Tower Owners and Operators: NYC Council Expands Cooling Tower Inspection Reporting Requirements,” an article in environemntallawmonitor.com.
“When legionella levels rise, the air and water heat exchange within a cooling tower generates mist, which aerosolizes the bacteria, allowing it to travel (in some cases for blocks) and become capable of human inhalation, potentially causing disease,” Tom writes.
Other recognized sources of contaminated water in aerosolized form include showerheads, faucets, decorative fountains, hot-tub spas, therapeutic whirlpools, humidifiers, misters, and certain medical devices used for respiratory therapy. Last month, for the second time this year, a resident of an Illinois veteran’s home tested positive for Legionnaires’ disease, prompting restricted water use and the delivery of bottled water for staff and residents.
Considering these sources, hotels, condominiums, restaurants, grocery stores, hospitals, nursing homes, assisted living facilities, health spas, fitness centers, and any large building with a centralized potable hot water system is a potential site of infestation and amplification of legionella. Individuals such as the elderly, smokers, and those with lung or kidney disease, diabetes, cancer, or otherwise compromised immune systems are most at risk.
In the general population, about one in 10 people who contract Legionnaires’ disease dies of it. In healthcare settings, the mortality rate can be as high as 25 percent. Those who survive can wind up paralyzed or brain-injured. Because of the risks, the CDC places a heavy emphasis on prevention—keeping legionella out of water systems in buildings. But there is no single set of widely accepted guidelines for preventing infections, though the National Academies of Sciences, Engineering and Medicine report has recommended requirements such as minimum temperature levels for hot-water heaters and the American Society of Heating, Refrigeration and Air Conditioning Engineers has published guidelines for water management plans.
To date, courts have been reluctant to enforce advisory guidelines as part of a recognized industry standard. However, ASHRAE 188, which was released in 2015 and updated in 2018, is increasingly cited with favor by agencies such as the CDC, NYDOH and CMS as a means to control legionella amplifications.
Legionnaires’-related lawsuits may become high-stakes affairs, with some leading to multimillion-dollar jury awards and negative publicity and some requiring disruptive building closures necessitated by remediation.
For hospitals, nursing homes, hotels, and other businesses that wind up on the losing end of such litigation, the overall financial hit can be devastating. In 2009, an outbreak at a Florida hotel reportedly resulted in revenue losses of $200,000 per day. In 2006, a jury returned a verdict of $193 million in a subrogation action against the manufacturer of equipment used for indoor spas aboard a cruise ship, the largest part of which was for the business interruption and lost booking because of the ship’s being taken out of service.
Simply because someone contracts Legionnaires’ disease does not mean he or she will have a successful lawsuit. With proper investigation, evaluation, and analysis, many potential plaintiffs can be dissuaded from believing that they can link their infection to a suspected litigation target. Many cases are dismissed early in the litigation process because plaintiffs cannot meet the necessary requirement of establishing the source of exposure. Many of the cases that go to trial result in a verdict in favor of the defendant.
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