Bally Total Fitness, Chicago, will appeal a New York appeals court decision to allow a case involving the non-use of an automated external defibrillator (AED) to move forward.

Bally sought dismissal of the case, Gregory C. Miglino Jr. v. Bally Total Fitness of Greater New York Inc., in which a member at its club in Lake Grove, NY, experienced a heart attack while playing racquetball. The club had an AED on site, as required by New York’s General Business Law 627-a, but the AED was not used. Bally stated that the Good Samaritan Law prevented it from being sued for its staff not using the AED.

However, on Dec. 27, the Supreme Court of the State of New York Appellate Division Second Judicial Department ruled that Bally could be sued because New York’s General Business Law 627-a supersedes the Good Samaritan Law, which gives immunity from liability to anyone who renders aid in an emergency or provides an AED on site, as long as their actions are not grossly negligent.

Bally disagrees with the New York Appellate Division Second Department’s decision, according to a statement from the company.

“Bally believes that the New York Appellate Division First Department correctly ruled in a prior case (Digiulio v. Gran Inc.) that health clubs have ‘no common law duty to use’ an AED and that New York’s AED statute (GBL sec. 627-a) does not ‘implicitly obligate the club to use its AED,’” the Bally statement says. ”The DiGiulio decision was upheld by New York’s highest court on 6/14/11 and, for that reason, Bally intends to ask that same court to reverse the Miglino decision.”

The incident at the heart of the ruling occurred around 7 a.m. in March 2007 when Gregory C. Miglino Sr. collapsed while playing racquetball at the Bally club. One of Bally’s personal trainers, Kenneth LaGrega, found Miglino with his eyes open, a weak pulse and breathing heavily, according to the ruling. A member notified the front desk to call 911. Another employee brought the club’s AED to the scene where a medical doctor and medical student, who were members of the club, then began attending to Miglino, according to LaGrega’s affidavit. The AED was not used on Miglino, although no specific reason was given for its non-use.

The court’s ruling states that LaGrega’s affidavit suggests he deferred to the doctor who had come to aid Miglino. An ambulance crew arrived at 7:07 a.m. and transported Miglino to the hospital “unconscious and unresponsive.” He was pronounced dead at the hospital at 7:45 a.m.

The deceased’s son, Gregory C. Miglino Jr., then filed a lawsuit against Bally to recover damages for negligence, due to the failure to use the AED on his father.

In a similar case, Digiulio v. Gran Inc. d/b/a New York Health & Racquet Club, the New York Appellate Division, First Department, stated that while New York’s business law requires health clubs to have AEDs and people trained to use them on the premises, it does not state whether clubs have the duty to use them.

However, in the Miglino case, the Appellate Division, Second Department, said in its decision that a club does have such a duty. The court states that the legislative intent behind the General Business Law was for AEDs to be available for use at health clubs.

“Why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?” the court’s ruling states. “This conclusion is further buttressed by the fact that the legislature deemed it appropriate to partially immunize the health clubs from liability, which may arise from their use of the AED, by including language within General Business Law 627-a that referenced the ‘Good Samaritan’ provisions of the Public Health Law…Such ‘protection’ could be considered superfluous if the statute did not also impose a duty upon the health clubs to use, or attempt to make use of, the device, depending upon the circumstances of the particular medical emergency.”

Robert Bovarnick, an attorney at Bovarnick and Associates LLC in Philadelphia, says that because this decision was to decide whether the case against Bally was to be dismissed, not whether the AED should be used, the decision does not necessarily mean club operators are compelled to use their AEDs.

The decision also does not state that Bally was liable for not using the AED, Bovarnick says, just that the case against it could move forward.