Posted on 04/03/2012

Automated External Defibrillators – A Duty to Use

If an AED is legislatively mandated, is there also a duty to use it?

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 does not act, incurs no liability, provided that 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, where as in most circumstances, nonfeasance does not 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 or not a special relationship exists.

For example, is it generally accepted that a special relationship does not exist between a restaurant owner and a customer. Therefore, a restaurant owner has no legal duty to rescue a customer who is 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 is not taken to prevent the resort’s guests from drowning. Similarly, ship owners have a duty to rescue passengers who fall overboard.

In May of 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, however 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 did not require any notice to patrons regarding the availability of the AED. Based upon the statute, the Court found that the only duty the hockey rink owner/manager had was to timely summon emergency services. The court did not 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 would not have a duty to utilize an AED as part of the ill patron’s assessment. However, in December of 2011, 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 could not be revived and was pronounced dead upon 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 upon 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 leading to sudden cardiac arrest 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. While this is the first ruling of its kind, it is not hard to understand the court’s rationale.  Given the proven success rates of AEDs, the failure to use an AED that is 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 where trained AED users were present, but did not attempt to utilize the AED.

Entities with AEDs should be aware of this development in AED law. Numerous studies have demonstrated that AEDs have a 100 percent sensitivity and specificity for detection of ventricular fibrillation or ventricular tachycardia, thus proving that AEDs consistently only shock patients who truly require defibrillation. As such, AEDs should be utilized in any situation in which they are 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 was not used.

By Andrew R. Roszak, JD, MPA, EMT-P, Advisory Board Member, Sudden Cardiac Arrest Foundation

About the Author

Andrew Roszak is a nationally recognized expert on AED law. Andrew currently serves as Senior Preparedness Advisor at the MESH Coalition in Indianapolis, Indiana and as an Advisory Board Member for the Sudden Cardiac Arrest Foundation. Previously, Andrew served as a Senior Advisor in the Office of the Administrator at the Health Resources and Services Administration (HRSA), US Department of Health and Human Services and as the Senior Public Health Policy Advisor for the U.S. Department of Health and Human Services' Emergency Care Coordination Center, located within the Assistant Secretary for Preparedness and Response (ASPR). During the 110th and 111th Congresses, Andrew served as a Winston Health Policy Fellow, working on health care reform, in the US Senate. Prior to moving and working in Washington, D.C., Andrew worked eight years as a firefighter/paramedic in the Chicagoland area, followed by two years of service at the Illinois Department of Public Health. Andrew has an Associate degree in Paramedic Supervision, a Bachelors degree in Fire Science Management, a Master Degree in Public Administration and a Juris Doctorate. Andrew has authored numerous publications on health law and policy and is admitted to the Illinois and the District of Columbia Bar. Andrew can be reached at: ARoszak [at]  (317) 630-7409.