Getting to the Heart of AED Law
April 07, 2011
Katharine M. Nohr, Esq.
Miyagi Nohr & Myhre, Honolulu
Question: If a guy keels over, apparently from a heart attack, and I use the athletic facilities’ AED in an attempt to save the guy’s life, and he dies anyway, can his estate sue me?
Answer: Anyone can sue.
The frustrating thing is that this is always the answer when addressing the question of whether someone can sue in the United States. The important question is whether you will likely be held liable for your actions or omissions. Even more frustrating is sorting out the state of the law regarding AED. The good news is that you are probably primarily concerned about the state in which your facility is located and so, with some diligent research, you can find out what your state’s law is as of this date. Remember, state laws are always in flux as your state legislature meets each year and so you will have to check whether any new AED bills have been passed, and if so, when they take effect. The National Center for Early Defibrillation has a handy AED Legislative Table that was last updated in the Spring of 2005, which can be reviewed by looking at their website at www.early-defib.org.
Another concern that you should have in keeping up to date with AED laws is whether there have been any court decisions in your state or jurisdiction. As of this date, there have been very few—however, you can expect that to change in the upcoming years. Hopefully, through this newsletter and other sources, you can be kept apprised of important case law.
Despite the differences in AED laws throughout the United States, there are similarities that can be considered as you make the decision whether to implement an AED program in your facility. Generally, state and federal legislation provides protection from lawsuits to all or some AED operators, including athletic trainers, rescuers, good Samaritans, medical personnel and AED trainers. The user of the AED ordinarily is protected from liability if his or her conduct is not willful, wanton or grossly negligent.
Good Samaritan Laws
An example of broadly implemented legislation are the Good Samaritan Laws that have been enacted in recent years throughout the United States and federally, under the Cardiac Arrest Survival Act (CASA). These laws grant immunity to volunteers who assist strangers in emergency situations when using AEDs. Good Samaritan Laws generally limit or eliminate the liability of a volunteer rescuer; the physician who provides medical authorization; the trainer and/or the facility owner and others that institute an AED program. State statutes not only vary as to immunity provisions, but also may vary as to training, registration and reporting requirements.
The Cardiac Arrest Survival Act
The Cardiac Arrest Survival Act (CASA) was passed on October 26, 2000, requiring placement of AEDs in all federal public buildings as well as providing Good Samaritan immunity where States do not offer such coverage. The CASA’s Good Samaritan protection includes immunity from civil liability to any person, including health care professionals outside of the scope of their license or certification, who use or attempt to use an AED on a victim of a perceived medical emergency. AED acquirers are also afforded immunity under the statute, except for harm caused by their failure to notify appropriate entities regarding placement of the device; failure to maintain and test the device; or failure to provide appropriate training to the users of the AED.
It is important to note that CASA preempts state law only where your state statute does not provide protection for a user or acquirer so that all users and acquirers are covered. Federal law will fill the gap where state law only protects either the user or the acquirer, but not both. Among some other exceptions not applicable to sports and recreation, immunity does not apply under CASA for willful or criminal misconduct, gross negligence, reckless misconduct or a conscious, flagrant indifference to the rights or safety of the victim who was harmed.
Will State Immunity Laws Provide Protection for Everyone?
The answer to this question is “no”, according to a recent internet article written by Richard A. Lazer, President and CEO, AED Risk Insights, Inc., entitled, “The Current State of U.S. AED Laws; Risk and Uncertainty for Community-Based AED Programs”. (www.aedriskinsights.com). In Mr. Lazer’s article, he noted that:
“49% of states do not offer immunity protection to untrained AED users
Despite the growing presence of AEDs in public settings and the advances in AED-guided instructions for lay-users, 25 states fail to offer immunity protection to untrained AED users.
24% of states technically do not offer immunity protection to anyone – rather, they offer only placebo immunity
Though they possess so-called AED Good Samaritan immunity laws, at least 12 states fail to offer immunity protection to anyone. This is because these laws incorporate language that protects only reasonable, non-negligent conduct. Conduct amounting to ordinary negligence – expected to be included within meaningful Good Samaritan laws – is not protected.
20% of states do not offer immunity protection to AED acquires [sic] or those responsible for AED program sites
As illogical as it seems, 10 states fail to offer immunity protection to those responsible for purchasing and deploying AEDs in public settings.
One state does not offer any immunity protection to trained AED users
Surprisingly, one state fails to offer immunity protection to trained AED users though AED acquirers, trainers, and physicians are offered protection.”
Based on the research of AED Risk Insights, Inc., current AED laws do not yet serve as a “true safety net” to all those who acquire and use the device, which is described in more detail in the “AED Law Report Card” also included in Mr. Lazer’s article.
As stated above, in order to fully evaluate the risk of implementation of an AED program, a careful review and evaluation of your own State’s laws must be accomplished.
Is there liability for failure to have an AED in your facility?
So far, the lawsuits that have arisen alleging liability for failure to have an AED have not resulted in written court decisions, which mean that the cases have settled or have been dismissed. Despite the criticism of the State AED laws explained above, AED use is rapidly gaining acceptance as the standard of care for various entities. As also described above, under CASA, placement of AEDs in all federal buildings is mandated. Most commercial aircraft are required by the Federal Aviation Administration under the Airline Passenger Safety Act to be equipped with AEDs.
It won’t be long before state and federal legislation and courts across the country provide further guidance on this issue, particularly in the sports and recreation arena. The low cost of AED technology combined with its proven ability to save lives will likely mean findings of liability against entities whose failure to have the device has resulted in substantial harm.
Is there liability for failure to train the users of an AED?
If you decide to implement an AED program, a critical step is to train those that you anticipate will use the machine. There may not be any way that you can prevent your facility from being named as a defendant in a pesky lawsuit, but you can do everything you can to ensure the proper use of the equipment. This means that re-training should take place periodically in order to keep memories fresh and because of attrition of personnel. Keep in mind that a paid fitness instructor with AED training will be held to a higher standard than a lay person responding to an emergency.
As part of your AED program, you will also need to establish policies and operational procedures designed to increase the likelihood an AED will be used quickly if needed.
Should your facility implement an AED program?
In response to this question, the following issues should be addressed:
1. Whether increased risk of injury or death to a person (to whom a duty of care is owed) is foreseeable if your facility does not have an AED or such AED is not used properly or when needed.
2. Whether the use of an AED is part of the duty of care owed to the facilities’ users.
In response to the first question, you likely answered in the affirmative. Your facility may have responded to users experiencing cardiac arrest in the past—after all, that’s why you have staff trained in CPR and provide instruction as to how to respond in such an emergency.
As for the second question, as stated above, there are no recent legal cases addressing this issue that would establish precedence in any jurisdiction as of this date. However, in light of the potential loss of life weighed against the significant AED State legislation now in place to deter litigation, it seems that it would be prudent to acquire an AED and institute appropriate training for staff.
If you feel that your state immunity laws are not sufficient and you are still concerned about litigation, there are AED manufacturers that provide indemnification programs for their properly maintained equipment, where the users are certified by the Red Cross or the American Heart Association.
Editor’s Note
For Canadian readers, it is interesting to note that there is no similar legislation on the books in Canada, nationally or provincially. However, some provinces are moving ahead on their own, and professionals are advised to check the status of AED legislation in their own province.