Swine Flu Lawsuit On The Way

The family of a New York City teacher who died of the H1N1 flu, or "swine flu," in May has begun a legal action against the city, but despite what's being reported by some sources, the action is not a lawsuit -- yet. It's a "notice of claim," and it's a reminder that getting compensated by the government for injuries often requires a very different process from a private suit.

Mitchell Wiener, a teacher at Intermediate School 238 in Hollis, Queens, contracted swine flu in May, becoming one of the very first cases seen in New York City, and died shortly thereafter in a hospital. His family asserts in their claim that the city was negligent in failing to properly warn Wiener of his potential exposure to the virus, and in acting too slowly to prevent the flu from spreading. So far, this describes a fairly standard wrongful-death suit based on a claim of negligence.
But it's one thing to sue, say, a private hospital, and quite another to sue New York City. Government entities -- countries, states, counties, cities -- have what is known as "sovereign immunity," which in a nutshell means that they can only be sued if they decide to allow themselves to be sued. In the realm of personal injury claims, many governments do allow suits to be brought against them, but often require a different process from that which would be used for suing a private entity.

In New York, that process begins with a notice of claim, a notice which must be filed within 90 days of the event that caused the injury. The notice describes the incident and outlines the injuries suffered. Its purpose is to put the city on notice that a suit is forthcoming. However, it is not itself the beginning of a lawsuit, nor does the filing of a notice somehow require that a suit be filed. The usual statute of limitations for personal injury suits (3 years in New York) still applies, but you can't bring a suit at all if you haven't filed the notice of claim within the 90-day limit.

• First Flu Victim's Family Intends to Sue City (New York Times)
• Suing The "City" - The "Notice of Claim" (New York Personal Injury Law)
• Assistant Principal's Death In Queens Is First NYC Swine Flu-Related Death (WPIX)
• Wrongful Death - Overview (FindLaw)
• Wrongful Death Money Damages (provided by Dempsey & Kingsland PC)
• Wrongful Death of a Child or Elderly Person (provided by Gerash Steiner & Toray PC)