The Legal and Moral Case for a Defibrillator

Immunity from liability, for either users or acquirers, does not apply if the harm resulting from the use of an AED was caused by “willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed.”

The Act clarifies that “with respect to a class of persons for which this section provides immunity from civil liability, this section supersedes the law of a state only to the extent that the state has no statute or regulations that provide persons in such class with immunity for civil liability arising from the use by such persons of automated external defibrillator devices in emergency situations (within the meaning of the state law or regulation involved).”

No liability for not having a defibrillator

Case Study Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218 (Pa. 2002)

A 64-year-old man (“Terry”) with a history of heart problems (including a prior heart attack and bypass surgery) suffered a stroke while playing tennis at a tennis club. Within a minute of his collapse, two tennis club members administered CPR and called for an ambulance. Approximately ten minutes later, emergency medical technicians arrived and administered a series of defibrillation shocks and transported Terry to a hospital. Although he survived the incident, Terry sustained severe and permanent injuries, and is no longer able to think or concentrate and requires assistance in virtually every aspect of his life. Terry and his wife sued the tennis club, claiming that if it had possessed a defibrillator and used it promptly, Terry’s injuries would have been significantly less. The Pennsylvania Supreme Court concluded that the tennis club had no legal duty to purchase and install a defibrillator, and therefore it was not liable for not having one. It rejected the argument that a state law providing immunity from liability for untrained persons who use a defibrillator in an emergency imposed a duty on the tennis club to obtain one. The court concluded, “The existence of a civil immunity provision for Good Samaritans who use a defibrillator in an emergency situation cannot impose a duty on a business establishment to acquire, maintain, and use such a device on its premises.”

Case Study Rutnik v. Colonie Center Court Club, Inc., 672 N.Y.S.2d 451 (N.Y. Sup. Ct. 1998)

A 47-year-old man was playing in a tournament at a racquetball club. He was an experienced racquetball player, regularly playing two to three times a week. During the tournament, the man collapsed. CPR was immediately performed by a bystander and a doctor who was participating in the tournament. Emergency medical services were called and the victim was taken to a local hospital. All attempts to revive him were unsuccessful. The cause of his tragic death was determined to be cardiac arrest, as a consequence of atherosclerotic heart disease. The victim’s estate sued the racquetball club, alleging that its negligence in failing to have a defibrillator on its premises caused the victim’s death. A New York appeals court dismissed the lawsuit. It concluded, “It is well-settled law that voluntary participants in sporting events assume the risk of injuries normally associated with the sport. A participant in a sporting event can be held to have consented to those injury-causing events which are known, apparent or reasonably foreseeable consequences of participation … . Moreover, relieving an owner or operator of a sporting facility from liability for the inherent risk of engaging in sports is justified when the consenting participant is aware of the risk, has appreciation of the nature of the risks and voluntarily assumes the risk. Furthermore, where the injured party had previously participated in the sports activity on numerous occasions it is not unreasonable to conclude that he or she assumed the obvious risk of injury in participating in that activity. Decedent was an experienced amateur racquetball player who was known to play two to three games a week, with each game lasting approximately 45 minutes. Further, decedent had participated in tournaments such as the one in question, and indeed was aware of the physical strain the games placed upon him. Clearly, the risk of cardiac failure is inherent when participating in a sport of such intensity and given decedent’s experience and background, we conclude that decedent assumed this risk. A reasonable person of decedent’s age and experience must be expected to know that there is an apparent and foreseeable risk of cardiac arrest while participating in the strenuous sport of racquetball. Moreover, it is uncontroverted that the entire staff at the club was trained in CPR, that emergency 911 was called shortly after decedent collapsed and that a rescue squad arrived at the facility within five minutes. Plaintiffs’ contention that the club was negligent in failing to have a defibrillator present during the tournament for immediate use lacks merit. Under the circumstances the decedent, as a matter of law, assumed the risks associated with playing racquetball and the club performed its respective duties in a reasonable manner.”

Potential liability for not having a defibrillator

Case Study Stone v. Frontier Airlines, Inc., 2002 WL 32077859 (D. Mass. 2002)

A 28-year-old man and his wife were on a Frontier Airlines flight from Boston to San Francisco for a vacation. The man was an NCAA record holder in swimming. During the flight, the man suffered a cardiac rhythm disturbance that resulted in cardiac arrest. His wife immediately alerted a flight attendant who requested the assistance of any qualified medical personnel on board, and a physician and an emergency medical technician, who were passengers on the flight, promptly attended to the man. The physician requested a defibrillator, but the plane’s emergency medical kit did not contain one. Despite the extraordinary efforts of the physician and emergency medical technician, the man died. The widow sued the airline, claiming that it was on notice of the wide use and effectiveness of defibrillators for in-flight cardiac arrests. A federal court in Massachusetts ruled that the widow could sue the airline for negligence, and that her lawsuit was not preempted by the federal Airline Deregulation Act.

Case Study Madison v. Ernest N. Morial Convention Center, 834 So.2d 578 (La. App. 2002)

A 55-year-old man (“Charles”) was attending a “charity ball” at a convention center owned by a university in Louisiana, when he collapsed while seated at a table. At 2:05 a.m., a nurse employed by the university received an emergency call of a “man down.” She arrived at the scene two minutes later, and called an ambulance. Charles died while en route to the hospital. His widow sued the university, claiming that the nurse had been negligent in failing to have a defibrillator with her when she responded to the emergency. The widow noted that the nurse had been specially trained in Advanced Cardiac Life Support (ACLS), and had a defibrillator available but failed to bring it with her. A trial court concluded that the nurse had been negligent in failing to bring a defibrillator with her in responding to the emergency call, and awarded damages of $800,000 against the university. A Louisiana state appeals court affirmed the jury verdict against the university. It noted that the nurse had only brought a wheelchair with her in responding to the call, rather than a defibrillator that was in her office, and that the wheelchair was useless in assisting a person suffering from cardiac arrest. The court observed, “It does not take a medical expert to understand that it is difficult to envision a situation wherein a wheelchair would be of immediate value in a true emergency, but that it would be easy to envision an emergency wherein the defibrillator could be of value. Even a layman would consider a cardiac event as one of the likely causes when someone collapses under circumstances such as existed in the instant case. In other words, common sense would tell one that ‘man down’ could mean a cardiac event. Common sense would also tell one that if ‘man down’ turned out to be a true emergency, which any responder would know is a reasonable possibility, that the defibrillator could be of immediate value whereas the wheelchair would not. For example, if it turned out that the decedent had had a stroke or swallowed something that blocked his windpipe, other likely possibilities in a party setting, the wheelchair could serve no crisis value.” The court based its conclusion in part on the testimony of a cardiologist at the trial who stated that “the movement in this country and elsewhere to have defibrillators in most public places is because the best chance that anyone can have to survive a sudden cardiac arrest is if that person is defibrillated promptly.”

Case Study Somes v. United Airlines, Inc., 33 F.Supp.2d 78 (D. Mass. 1999)

A man suffered a cardiac arrest and died while traveling from Boston to San Francisco aboard a United Airlines flight. The victim’s wife sued the airline, claiming that it was responsible for her husband’s death because it failed to equip its aircraft with defibrillators. She claimed that her husband would have survived if the in-flight emergency medical kit had contained such equipment. A federal court in Massachusetts ruled that the widow could pursue a negligence claim against the airline, and that her claim was not precluded by the federal Airline Deregulation Act.

Case Study Ferguson v. Trans World Airlines, 135 F.Supp.2d 1304 (N.D. Ga. 2000)

A husband and wife were passengers on a 4-hour TWA flight from Seattle to St. Louis. The husband was a chain smoker with a long history of breathing difficulties. Shortly after the plane left Seattle, the husband reported to a flight attendant that he was having difficulty breathing. The flight attendant retrieved a portable bottle of oxygen and placed an oxygen mask over the husband’s face. When the husband’s condition deteriorated, the flight attendant asked if there was a doctor on board. A neurosurgeon responded, and after a cursory examination, he determined that the husband would be fine and so there was no need to divert the plane. Several minutes later, the doctor again examined the husband, and seeing a further decline in his condition, started CPR. The doctor continued CPR until the plane landed in St. Louis 45 minutes later. The husband was pronounced dead by paramedics who were waiting for the plane at the St. Louis airport. The victim’s wife sued the airline, claiming that it was negligent in not having a defibrillator on board which would have saved her husband’s life. A federal court in Georgia rejected the airline’s motion to dismiss the case, and concluded that there was a legitimate question of whether the airline was negligent in not having a defibrillator on board.

Case Study Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1992)

A 20-year-old male (“Aaron”) was a member of his college’s lacrosse team. During an afternoon practice session, Aaron fell to the ground. Fellow team members and the two coaches were alarmed, especially when Aaron’s whole body began turning blue. The head coach acted in accordance with the school’s emergency plan by first assessing Aaron’s condition, then dispatching players to get a trainer and call for an ambulance. Within minutes a trainer arrived and began performing CPR until two ambulances arrived several minutes later and Aaron was defibrillated. Despite repeated resuscitation efforts, Aaron could not be revived, and he was pronounced dead. While there was some dispute as to how quickly the ambulances arrived, it was at least 10 minutes after Aaron collapsed, and perhaps as long as 25 minutes. Prior to his collapse, Aaron had no medical history of heart problems. He had been examined by a college physician before he was allowed to join the lacrosse team, who found him to be in excellent health. An autopsy later disclosed that Aaron died of cardiac arrest after a fatal attack of cardiac arrhythmia. Aaron’s parents sued the college, claiming its failure to have a defibrillator available caused their son’s death. A federal district court in Pennsylvania dismissed the case, but a federal appeals court ruled that the college could be liable on the basis of negligence for failing to have adequate medical equipment readily available and it sent the case to the district court for trial.

Case Study Anderson v. St. Francis-St. George Hospital, 614 N.E.2d 841 (Ohio App. 1992)

While being treated for cardiac arrest at a hospital, a man was resuscitated with a defibrillator. The man lived and later sued the hospital for damages he allegedly incurred as a result of being alive. These damages included battery, “great pain, suffering, emotional distress and disability” as well as medical and other financial expenses associated with a paralyzing stroke that he later suffered. An Ohio appeals court concluded that the victim signed a document at the hospital refusing treatment in any “code blue” situation. When he suffered cardiac arrest at the hospital, this could be construed as a code blue situation, and as a result the hospital did not have the victim’s consent to resuscitate him with the defibrillator. Performing medical treatment without consent constitutes a battery for which damages may be awarded. But, could monetary damages be awarded for saving a person’s life? The victim claimed that his life was prolonged by the defibrillation, but that life “was, for him, not worth living.” He therefore sought damages for “wrongful living.” The court ruled that life itself is “not a compensable harm; therefore, there is no cause of action for wrongful living.”

Federal law

AEDs are prescription devices and must be labeled with a prescription statement required by law. A physician who oversees a defibrillation program at a facility must write a prescription for the device in order for the facility to purchase it.

State law

Check your state law regarding the purchase and use of a defibrillator, since laws in all 50 states impose various restrictions on the use of these devices. Many states have laws that contain some or all of the following restrictions:

Caution If your church decides to obtain a defibrillator, you cannot just go out and buy one. Not only are there strict legal regulations that apply to the acquisition and use of defibrillators, but just as importantly, the limited immunity from legal liability that state laws extend to owners and users of defibrillators only applies if these legal requirements are satisfied. Using a defibrillator without strictly complying with applicable laws exposes a church, as well as persons who use the defibrillator, to significant legal risk.

Placement

State laws may specify the placement of defibrillators in any place of public accommodation, including a church. If state law does not prescribe the placement of defibrillators in places of public accommodation, then consult with local public health officials. They will be more than willing to assist you. A good rule to follow is the “3-minute response time” adopted by the AHA. This rule recommends that a defibrillator in the hands of a trained user will be available within 3 minutes. This is a good benchmark for judging the number of defibrillators, and their location, in any place of public accommodation. In larger churches, more than one defibrillator may be needed to satisfy this rule.

Response procedures

State law may specify how to respond to a suspected case of cardiac arrest and the use of a defibrillator. If not, consult with public health officials. Here are some response procedures that should be considered:

Security

Consider the following illustration: A 45-year-old man collapses during a worship service. The church has acquired an AED that is hanging on the back wall of the sanctuary. Four members of the church have received CPR and defibrillator training, and two of them immediately retrieve the defibrillator and activate it. To their horror, they discover that the batteries have been removed from the device. Someone calls 911, but an ambulance does not arrive for 15 minutes. The victim is pronounced dead on arrival at a local hospital. It is later discovered that two adolescent boys removed the batteries a few weeks before as a “practical joke.”

Such a scenario could happen in any church. As a result, it is absolutely essential to store a defibrillator in a locked box, with every trained defibrillator user having a key.

First responders

A defibrillator is useless without a trained user, especially if only trained users have keys to access the defibrillator. The presence of a trained user is not something that should be left to chance. One response is to have a “first responder” designated for every church service or function. The first responder is responsible for being at the service or function, and making sure that at least one additional trained user will be present along with a third person (ideally, a third trained user) who will be responsible for calling 911 and meeting the paramedics at the church entrance and directing them to the victim.

Maintenance

Several state laws prescribe maintenance procedures that must be followed. These usually include periodic system and battery checks. It is imperative that these requirements be strictly met, since noncompliance can subject a church to liability for deaths caused by a malfunctioning device that was not properly maintained.

Extra batteries

Be sure to keep an extra battery in your locked defibrillator case. Also, only purchase a defibrillator in which the battery can be “hot swapped.” That is, if the battery dies while the defibrillator is being used, you can switch batteries without losing power. Your extra battery should be tested for capacity, and replaced periodically.

Warranty card

Fill out and send in the warranty card that comes with your defibrillator. This will allow you to be contacted in the event of a product recall.

Useful life

Do not exceed the useful life of your defibrillator. Future advances in technology will make defibrillators even more effective, compact, and inexpensive.

After using a defibrillator

State laws often require a report to be made to the overseeing physician or a state agency whenever a defibrillator is used. In addition, the AHA recommends that after a defibrillator is used, you should (1) return the AED to a state of readiness; (2) replace the pads, pocket mask, and other peripheral supplies that were used; (3) transmit data to the physician; and (4) review the case with the overseeing physician and emergency medical personnel who responded to the incident.

Training

Some have asked, “If defibrillators are so easy to use, why do people have to be trained to use them?” The AHA responds to this question as follows: “A defibrillator operator must know how to recognize the signs of a sudden cardiac arrest, when to call 911, and how to perform CPR. It’s also important to receive formal training on the defibrillator that will be used. That way, the user becomes comfortable with the device and can successfully operate it in an emergency. Training also teaches the user how to avoid potentially hazardous situations.”

Key Point. AHA has developed a “Heartsaver” defibrillator course that integrates both CPR and defibrillator training. The course is four hours long. To find out the nearest location where this course is offered, go to the AHA website at cpr-ecc.org, call the AHA customer support center at 1-800-242-8721, or check your local telephone directory for the nearest AHA office.