Broken Toothpick in a Sandwich...

by Barbara
(Salem Oregon, USA)

I bought a sandwich from a sandwich shop which uses toothpicks to hold the wrap on. I was eating the sandwich and felt something sharp in my mouth at my throat. I tried to pull it out but I was too late and it got lodged in my throat.

I didn't have anything on the sandwich that should have been hard so I started looking at the other half of the sandwich. That is when I saw the broken toothpick.

Well, it was stuck in my throat so I had to go to the hospital to get it out. The ER doctor used a scope to try to locate it but he, along with my gag reflex, dislodged it. It went down in my stomach but it left my throat very sore. The ER doctor did get a view of the toothpick though and he said it was definitely lodged.

I had told the store owner when it happened and he said I should bring in paperwork from the hospital, I think he didn't believe me. He said they might have only used a half toothpick to close the paper.

The next day I took the paperwork in but his wife and co-owner said they didn't want the paperwork. She took my name and number and said she would give it to her insurance.

Later when I was sitting with my daughter in the food court she came over and told me to complain the the corporate office. She said she had been trying to get them to change the toothpicks to stickers for a long time. She offered me a free sandwich but of course I couldn't eat it because my throat was still swollen and sore. It still is after a week.

Do I have a case and should I pursue it just in case my health insurance doesn't cover it? Thank you.

Visitor Question:
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ANSWER for "Broken Toothpick in a Sandwich...":

Barbara (Salem Oregon USA):

You do have a case. At a minimum the sandwich shop should be responsible for your emergency room bill and any other related doctor's bills, and out of pocket expenses such as prescription and over the counter medications the doctor may have prescribed for your throat.

If you missed any work as a result of the hospital visit or during any recovery period at home, that amount is actionable as well.

Although your injury didn't result in any serious bodily injury (it could have, but thankfully it didn't), you should also be reimbursed a fair amount for the pain and suffering you endured.

Because you mentioned the clerk said she contacted the corporate office, the store may be a franchise of some type. If it is don't wait for them to contact you. Send them a certified letter laying out the facts just as you have here. Tell them you not only want your medical bills reimbursed but you want compensation for those items I set out above.

Finally, don't forget to tell them you want an additional amount for the pain and suffering your endured.

Here's how to set out a reasonable amount to demand...

Let's say your medical bills were $1,000 dollars. Multiply that number by three and the total of $3,000 dollars will absorb the medical bills, the out of pocket expenses, any lost wages, and the pain and suffering you endured.

If the corporate office ignores you then file a lawsuit in Small Claims Court. In the State of Oregon the maximum, or "jurisdictional amount" a person can sue for in Small Claims Court is $7,500. Sometimes it's necessary to file a lawsuit to get a corporation's attention.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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