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There is no national legislation controlling the propagation of the legionella bacteria in buildings, cooling towers, or jacuzzis in the United States. In fact, there is only one state, New York, that has any statewide legislation to control legionella growth in the state’s cooling towers. Various states have levels of residual chlorine that must be in spas. This haphazard and inadequate approach is very different from that taken by the United Kingdom as indicated in a previous blog. It is time therefore, for Congress to address a national problem and enact national legislation to control the increasing incidence of Legionnaires’ disease in the Unite States. The content of the legislation will be addressed in future blogs.

According to news reports, at least four people were diagnosed with  Legionnaires’ disease after staying at The Osthoff Resort in Elkhart Lake, Wisconsin. Legionella bacteria, which causes Legionnaires’ disease, was found in the men’s restroom near an indoor pool and in a cooling tower at the resort. Cooling towers continue to play an important role as to how persons contract Legionnaires’ disease, including numerous clients of this firm currently being represented. Cooling towers are a source of infestation because of how they are designed and operate. The warm air from inside the building is cooled by coming into contact with cool water in the tower. Biofilm, or sludge, builds up over time which contains the legionella bacteria. The mist resulting from the interaction of the warm building air with the cool water in the tower then picks up bacteria from the biofilm and transmits it int the air. The mist containing the potentially deadly legionella bacteria then is inhaled by an unsuspecting pedestrian or occupant of the building with the cooling tower. Cooling towers need to be regularly treated and not just inspected to prevent this catastrophe from happening.

Without giving away too much about how I try a case, my firm’s focus has always been about the behavior of the party where my client contracted Legionnaires’ disease. All too often Judges and defense attorneys focus on the extent of the damages, i.e. how long the client was in the hospital and whether the client is still suffering from any residue from contracting the disease. This is a false emphasis and only one part of the equation as to how much the jury verdict should be. Rather, evidence such as a hotel where the client stayed not having a permit to operate its spa , spending little if any monies on maintaining the infrastructure, including the potable water system,  and destroying any evidence of legionella being present in the hotel’s spa water before sampling for the presence of legionella bacteria could occur , are just a few examples of how the behavior of the defendant should drive the verdict amount and not just hospital bills. Incidentally, all three types of defendant injurious behavior are present in cases this firm is currently representing numerous clients.

As mentioned in a previous blog, the United Kingdom takes a very different approach to controlling Legionnaires’ disease. Unlike the United States, the UK has a national law, the Health and Safety Act of 1974 as amended, whereby owners of premises can be criminally prosecuted if in violation of the Act. The Act requires a regular risk assessment to identify any areas in a building such as a hotel that has or could develop the legionella bacteria. Outbreaks of Legionnaires’ disease result in a full investigation as well as a possible criminal prosecution. Greater detail will be provided about the UK approach in future blogs, as well as the US (states) approach.

A second cluster of Washington Heights residents have been hospitalized because of Legionnaires’ disease. The prior outbreak in the same geographic area in July of this year resulted in numerous persons being hospitalized and one person dying. The New York City Health Department has implicated a cooling tower at the Sugar Hill Project as the source of the second outbreak. The department has directed the Sugar Hill Project to disinfect its cooling tower for the second time. This second direction by the health department points up a major weakness in the current legislative scheme. Many of the cooling towers that are being sanitized and monitored because of the regulations and legislation passed in 2015 are not being properly treated. Proper sanitation of a cooling tower requires compliance with various national standards. It will be interesting to learn if the company which monitored the Sugar Hill Project’s cooling tower followed these national procedures. This firm has represented clients who contracted Legionnaires’ disease from a cooling tower atop the Opera House in the Bronx, as well as a person who contracted the disease from cooling towers at Co-OP City. In both instances the cooling towers were not properly maintained.

This law firm will issue a white paper on the need for stringent legislation at the national level to curtail the increasing incidence of Legionnaires’ disease throughout the United States. Rather than rolling out the paper at one time, various chapters will be issued that when taken as a whole make up the white paper. While many of you might not be familiar with the term white paper, it refers to reports that were issued by the British government regarding matters of concern to the general public. What could be more pressing in this country than Congress passing legislation that inhibits Legionnaires’ disease, or maybe over time eliminates it?

The owner of the Hampton Sands  Resort has stated there is no reason for signs warning of Legionnaires’ disease at the hotel to remain after recent sampling by a contractor  for the presence of the legionella bacteria hired by the hotel have proven negative. The New Hampshire Department of Health has denied this request as of Tuesday and required more sampling for the presence of legionella because additional sampling by the hotel owner which resulted in negative results did not meet the health department’s requirements. The health department stated the samples done by the hotel’s contractor came in portions smaller than the one liter requirement and were taken too soon. It should be mentioned that the state health department previously found legionela in the hotel’s water system and spa.

A recent outbreak of Legionnaires’ disease at the Guildford Town Centre mall in Surrey, British Columbia indicates that cooling towers at the mall may be the source of the disease. This firm has represented numerous persons who contracted the disease from a cooling tower at the Opera House Hotel in the Bronx, New York. The dynamics of a cooling tower outbreak are interesting. The cooling tower works by warm air coming from inside the building passing over cooler water in the tower. Unfortunately, biofilm builds up at the base of the tower which contains the legionella bacteria causing Legionnaires’ disease. The biofilm is aerosolized and then distributed by the air coming off the biofilm to the surrounding locale. This invisible air containing the sometimes deadly bacteria which then strikes people unawares of the dangerous condition. Indeed, this is what happened to pedestrians walking on the sidewalk surrounding the Opera House Hotel and most likely happened to customers of the Surrey mall.

Some interesting developments have occurred regarding the outbreak at the Sands Hotel. Most notable is the source of persons contracting Legionnaires’ disease not just being from the indoor spa or potable water system at the hotel, but also from the air vent from the indoor spa. This would explain the number of cases associated with the hotel by the health authority who have not  actually having stayed at the hotel but have been near the it. Perhaps of greater significance is the match between the environmental sample taken from the hotel and the clinical (hospital) sample of one of the persons associated with the outbreak. This is important because it establishes a biological link between the person who contracted the disease and the hotel.

Three important pieces of evidence have been revealed through the media so far about the outbreak at the Sands Resort. The owner did not have a permit for the spa, there was legionella bacteria in numerous places through out the hotel and not just the spa, and numerous people who have been associated with the hotel who have contracted the disease.  These facts are important for the following reasons. Permits are issued to make sure the spa holder complies with all regulatory requirements, e.g. the amount of chlorine in the spa. Finding legionella in two different water systems within the hotel is significant as it shows the prevalence of the bacteria in the hotel and the failure of its management to properly maintain it. Finally, someone dying from the disease, and at least 12 others contracting Legionnaires’ disease, shows just how virulent the strain is at the hotel and how much of a risk the owners placed the public under.