After the American Heart Association identified automated external defibrillators (AED) as a promising treatment for sudden cardiac arrest, the federal government and some state governments took steps to expand public access to AEDs. Some state governments mandated AED availability in high-risk locations, such as fitness facilities. Although the legislation often requires health clubs to maintain AEDs and provide a certified trained employee in the use of the AED, many states are silent with regard to the duty of staff to use the AED.
Recently, an appellate court in New York addressed the issue of whether the legislation that requires an AED on health club premises also creates a duty for the certified employee to apply the AED on a club member in distress. In Miglino v. Bally Total Fitness, the New York State Supreme Court, Appellate Division’s interpretation of New York State General Business Law 627-a created a duty to use the AED during an emergency situation despite the New York state legislature’s silence on the issue.
The Miglino case stems from an incident on March 26, 2007, when a member of a Bally Total Fitness club in Long Island, NY, collapsed as he played racquetball at the club. A club member informed the front desk about what happened, and a 911 emergency call was placed. A Bally employee, who was a personal trainer and had completed a certification course in the operation of an AED, responded to the scene along with a doctor who was a member. The club’s AED was brought to the scene but never used. An ambulance arrived about 8 minutes after 911 was called and took the club member to a local hospital, where he was pronounced dead.
The estate of the club member brought an action against Bally seeking monetary damages for failing to use the AED as mandated by New York General Business Law Section 627-a and for failing to use life-saving measures on the club member. Bally moved to dismiss the case arguing that the trained club employee had no duty to use the AED. Bally also argued that liability could not be imposed based upon New York’s Good Samaritan Law (New York Public Health Law Section 3000-a) that insulates a voluntary responder to an emergency situation from liability unless the volunteer acted with gross negligence. New York’s Appellate Court denied the motion to dismiss and held that New York law recognizes a cause of action if Bally can be found to have negligently failed to use its AED on the decedent.
In 2005, New York amended General Business Law Section 627-a requiring every health club in the state with more than 500 members to have an AED on the premises. The law further requires that during staffed business hours, the club must have an employee on the premises who is certified by a nationally recognized organization or association in the use of the device and cardiopulmonary resuscitation.
In its decision, the court cited a 2002 article in the medical publication Circulation Journal of the American Heart Association entitled “Automated External Defibrillators in Health/Fitness Facilities” and recognized the importance of an AED being immediately available in an emergency cardiac situation at a health club given that there is a substantial risk of a cardiac arrest after strenuous exercise. In addition, the court cited the legislative history of the statute acknowledging the strong public policy of the enactment of the law to prevent deaths associated with cardiac arrests after exercise.
In support of its motion to dismiss the case, Bally cited New York’s Public Health Law Sections 3000-a and 3000-b. More commonly known as the Good Samaritan Law, this law provides that a person who voluntarily and without expectation of monetary compensation renders emergency treatment to an individual at the scene of an accident or other emergency situation outside of a hospital or other medical setting, shall not be liable for damages for any injuries or death as a result of the emergency treatment rendered unless it is established that the injuries or death were due to “gross negligence” on the part of the volunteer. This standard is much higher than needs to be established in comparison to the ordinary negligence standard otherwise imposed on a health care provider on treatment rendered in a non-emergent situation. The public policy underlying Good Samaritan Laws is clear in that the state, while certainly not mandating it, wants to encourage its citizens to assist each other in emergency situations when no licensed or certified emergency responder is available.
The New York Appellate Court held that the Good Samaritan Law did not prevent the club member’s estate from bringing an action against Bally for the failure to use the AED. While acknowledging that New York’s law mandating an AED at health clubs with greater than 500 members did not contain any specific provision imposing an affirmative duty to use the AED, the court held that it would be “illogical to conclude that no such duty exists.” The court went on to say that if it did not interpret the statute to impose a duty to use the AED, it would “eviscerate the very purpose for which the legislation was enacted… and would [render] the provision meaningless…” The court supported its rationale by questioning why the state would mandate a health club to provide the AED and a certified user if no simultaneous duty existed to use it.
While many states have taken steps to expand public access to AEDs, only 10 states have created legislation regarding the availability of AEDs in exercise facilities: Arkansas, California, Illinois, Indiana, Louisiana, Massachusetts, Michigan, New York, Oregon and Rhode Island. In addition, the laws have similarly created a duty of the owners and operators of the facilities to have on the premises an employee who is trained in the use of the AED. As in New York, the users of the mandated AEDs in the other states are protected from liability with regard to the use of the AED through similar Good Samaritan Laws.
Most of the states noted above fail to make reference to the duty of the health clubs or their certified employees to use the AED in an emergency situation. In fact, with the exception of Michigan, the various statutes do not use the term “duty.” Arkansas, Illinois, Indiana, New Jersey, Oregon and Rhode Island all require that an AED be available on the premises and require that an employee be medically trained to use the device during business hours. Louisiana requires only that the AED is available on the premises. None of the states mentions a need to actually use the device. However, Arkansas, Illinois, Indiana, New Jersey, Oregon and Rhode Island do offer protection from liability for the use or non-use of the device. It is apparent that if an affirmative duty is to be found, it will be in the hands of the courts to make that determination.
The current regulations likely will stir up debate about whether a duty to use the AED will attach along with the duty to provide the device and a certified trained employee.
Despite the protection from liability afforded to health club owners and their employees with regard to the use of AEDs, some courts will recognize a cause of action against health clubs if the club’s certified employee fails to use the device in emergency situations. This seems to contradict the legal protections afforded to voluntary responders under the various Good Samaritan Laws. It is up to health club owners and their employees to become aware of the additional responsibility to affirmatively act, apply the AED and determine if the AED is medically indicated under the circumstances. With the expanded availability of AEDs to the general public, the courts and the states likely will evaluate if a duty to apply the device attaches regardless of the location or the circumstances.
Jeffrey C. Gerson, Esq. is a litigation partner in the law firm of Kaufman Borgeest & Ryan LLP. He specializes in the defense of physicians, hospitals and other health care providers. He also handles general negligence defense with a special interest in sports litigation, as he is a New York state certified high school varsity football official.
Cristina LaMarca, Esq. is a senior associate in the Litigation Group at Kaufman Borgeest & Ryan LLP. She specializes in the defense of physicians, hospitals, nurses and other health care providers. LaMarca also is a registered nurse with experience in cardiac surgery nursing care at a major New York City hospital.
Kaufman Borgeest & Ryan LLP maintains offices in New York, New Jersey and California.