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THE ONGOING THREAT OF LEGIONNAIRES’ DISEASE TO OUR HEALTH AND TO OUR CLIENTS

Posted by Susan J. Levy

I grew up in Pittsburgh, PA in the 1970s. I remember the fear generated by the outbreak of Legionnaires’ Disease in July, 1976, almost as vividly as the joy unleashed by the Steelers’ Super Bowl victories. It was terrifying – hundreds of (mostly) men who attended an American Legion convention at the Bellevue-Stratford Hotel in Philadelphia were stricken with a mysterious pneumonia and many died quickly from the illness. Eventually named, “Legionnaires’ Disease,” the illness was linked to a bacterium, later called “Legionella,” which exists naturally in the environment but proliferates in warm stagnant water in poorly maintained ventilation and water systems, hotel shower heads, hot tubs, and decorative fountains. It is not contagious; rather, it is transmitted when humans inhale mist or other fine droplets of water from systems where the Legionella bacteria grow in concentrated numbers. In Philadelphia, the outbreak was traced to a cooling tower in the air conditioning system at the hotel.

Today, when I think of Legionnaires’ Disease, I remember what happened but do not think of it as something that has afflicted anyone in the last 40 years. I am, unfortunately, wrong about that. According to the CDC, between 8,000 and 18,000 people are hospitalized a year in this country suffering from Legionnaires’ Disease. In fact, in April, 2013, a University of Georgia researcher was awarded over $1.5 million by the National Institutes of Health to investigate how Legionella overcomes the body’s defenses.

As insurers and defense lawyers, many of our clients are, therefore, still exposed to potential liability. There have been three lawsuits filed against The Dillard House in Rabun County in the last few years. One such case, brought by the family of a man who died from Legionnaires’ Disease one month after sitting in a hot tub at The Dillard House, resulted in a $2.4 million settlement in 2010. Hecht v. The Dillard House, Inc. et al., Civ. Action No. 08-CV-0186-WCO (N.D. GA 2008). Our clients who work in the design, construction, maintenance or repair of building systems as well as those involved in the hotel industry, operation of hospitals, nursing homes, cruise ships and even condos are increasingly at risk of being sued for damages associated with an outbreak of Legionnaires’ Disease. For a more detailed discussion of legal liability in Legionnaires’ cases, see “Legionnaires’ Disease and Premises Liability,” Claims Management, Vol. 2, Issue 6 (June, 2013). Plaintiffs in these cases must prove four elements: (1) exposure; (2) at the insured’s premises; (3) caused by the insured’s negligence; (4) which resulted in Legionnaires’ Disease caused by the exposure. As in all negligence cases, the Plaintiff must establish that the insured breached the specific standard of care. Currently, there is some degree of uncertainty regarding the applicable standard of care as there are no federal or state statutes establishing a specific duty of care outside of the healthcare industry. Id. Many governmental agencies have promulgated advisory guidelines and the American Society of Heating, Refrigeration, and Air Conditioning Engineers is expected to adopt a new standard for the prevention of Legionella in building water systems.

Ultimately, the key to preventing infection is to keep the Legionella bacteria out of water. We should advise our clients in the vulnerable industries to be vigilant with regard to the various governmental agencies’ publications on Legionella prevention and control (specifically, but not limited to CDC, EPA, local health departments, OSHA, & NIH) and to diligently investigate any alleged cases of Legionnaires’ disease.