Duty to Act
If a facility has an AED, does that mean they have to use it? Photo istockphoto.com
FEATURED IN ADMINISTRATION AND LEADERSHIP
- Volunteer EMS Staff Protects More Than 2,000 People in Colo.
- Using and Understanding EMS Buzzwords
- Effective Communication is a Key Tool for EMS Managers
- ‘Scene Safe’ Mantra Provides EMS Danger
- Using “CPIs” to Help Prevent Legal Troubles
- Pro Bono: Are You Always On Call?
- How the Affordable Care Act Will Change EMS
A fitness-club patron is playing racquetball at a local gym. Suddenly, he collapses on the court. The front desk calls 9-1-1 and a trainer begins to assess the collapsed patron’s condition. As part of the assessment, is the trainer under a duty to use an AED on the patron?
Historically, courts have been reluctant to impose a duty to aid a person in peril.
Generally, a bystander who sees another in peril, but doesn’t act, incurs no liability, provided the bystander is in no way responsible for the situation. In a legal context, courts distinguish between misfeasance—an affirmative act that harms or endangers a person—and nonfeasance, which is a failure to take action. Misfeasance can create liability, whereas in most circumstances, nonfeasance doesn’t create liability.
However, when a special relationship exists between the parties, or the bystander is under a legal obligation to attempt to rescue the person in peril, then social policy may justify the imposition of a duty to assist or rescue the person in peril. Where one of these special situations exists, nonfeasance would lead to liability. Therefore, a threshold question to determine whether a duty exists is whether a special relationship exists.
For example, it’s generally accepted that a special relationship doesn’t exist between a restaurant owner and a customer. Therefore, a restaurant owner has no legal duty to rescue a customer who’s choking on food. However, courts have recognized a special relationship between owners of lakeside resorts and guests. This special relationship means that a resort owner could be held liable for nonfeasance if action isn’t taken to prevent the resort’s guests from drowning. Similarly, ship owners have a duty to rescue passengers who fall overboard.
In May 2007, the Sixth District Court of Appeal in California decided a case regarding a teenage hockey player who suffered a cardiac arrest at a facility. The facility owned an AED but failed to use or make patrons aware of the AED’s existence. In applying California law, the Court noted that the legislature had laid out detailed requirements concerning the acquisition of the devices; however, the legislature didn’t require any notice to patrons regarding the availability of the AED. Based on the statute, the Court found that the only duty the hockey rink owner/manager had was to timely summon EMS. The court didn’t create a duty on a landlord or business owner to use AED during an emergency.
Following the ruling in California, it would seem that a fitness center employee wouldn’t have a duty to use an AED as part of the ill patron’s assessment. In December of 2011, however, a New York Appellate Court was faced with a similar issue. In the New York case, a health club patron was playing racquetball when he collapsed. A CPR- and AED-certified employee and a doctor who was working out in the club came to the aid of the ill patron. The health club called 9-1-1, and EMS responded. Unfortunately, the patron couldn’t be revived and was pronounced dead on arrival at the hospital. Approximately one year after the patron’s death, the executor of the patron’s estate filed a lawsuit alleging negligence based on the health club’s failure to use an AED on the patron.
In deciding the case, the court ruled that because healthcare facilities are required under New York law to have AEDs and persons trained to use the device on-hand and because the risk of heart attacks following strenuous exercise is well recognized, health clubs have an affirmative duty to use AEDs.
In terms of AED law, this is the first court to impose an affirmative duty on AED owners. Although this is the first ruling of its kind, it isn’t hard to understand the court’s rationale. Given the proven success rates of AEDs, the failure to use an AED that’s readily available could be interpreted as having a disregard for the safety and welfare of the person in peril. This is especially true in situations for which trained AED users were present but didn’t attempt to use the AED.
Entities with AEDs should be aware of this development in AED law. Numerous studies have demonstrated that AEDs have a 100% sensitivity and specificity for detection of ventricular fibrillation or ventricular tachycardia, thus proving that AEDs consistently shock only patients who truly require defibrillation. As such, AEDs should be used in any situation in which they’re indicated. Otherwise, as was the case in New York, the responder or business may end up having to defend a lawsuit and explain why the device wasn’t used.
