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Guest Column - January/February 2003

Lives, Liabilities and Lawsuits on the Line

Defibrillators are becoming part of the "standard of care" for recreation facilities

By David L. Herbert, J.D.


On Nov. 5, 2002, a 57-year-old man collapsed in Canal Fulton, Ohio. A 911 call was made, and as sometimes happens, the police arrived at the man's home before the emergency-response team from the local fire department arrived at the scene. Once on the scene, the police determined that the victim's heart had stopped. Fortunately, the police department had been the recipient of two automated external defibrillators (AEDs), which were donated by a village resident the year before. The AED they used on the scene determined that the device could assist the victim and was then used to successfully resuscitate the victim who now, hopefully, will live out his substantial life expectancy.

PHOTO COURTESY OF PHILIPS MEDICAL SYSTEMS  

The foregoing factual scenario is decidedly true and has been carried out at, among other places, airports, casinos, health and fitness clubs, and a number of other settings including public buildings. A recently completed study published in the New England Journal of Medicine readily demonstrated that "automated external defibrillators deployed and readily accessible, well-marked in public areas, can be effective in assisting patients who suffer cardiac arrest even when most AED users have no duty to act and no prior training in the use of such devices."

In light of the nearly one-half million cases of unexpected cardiac arrest that occur annually in the United States, the effective deployment and use of AEDs can potentially go a long way in saving many lives such as that life that was saved in Canal Fulton most recently.

Despite the fact that some recent reports indicate that perhaps as many as 50 percent of those individuals who suffer cardiac arrest could be saved by rapid external defibrillation, many health, fitness and recreational facilities have been slow to adopt an AED program based in part upon a perceived risk of claim and suit if such devices were made available and either used negligently or not used at all. Despite the foregoing, it is probably more likely than not that a failure to provide an AED program at health, fitness and recreation facilities will in the near future be subject to claims of negligence rather than the assertion of claims of negligence related to the improper use of such devices.

PHOTO COURTESY OF PHILIPS MEDICAL SYSTEMS   
Automated external defibrillators (AEDs) are becoming increasingly common in public areas.

This is especially true now that AED-user immunity statutes have been passed at the federal and state levels that prevent liability to lay users who use such devices in efforts to save stricken victims. Since these devices are used to first determine if there is a need for their use—before any electronic stimulation is provided—there is little probable risk associated with use except where willful or intentional conduct would be involved. In the latter case, no immunity would be provided under the recently adopted immunity statutes. However, it is likely that facilities would not be liable for an employee's or agent's willful, intentional attempt to injure a victim unless the facility knew or should have known of the employee's or agent's propensity to so act and did nothing to prevent it.

A number of cases have been asserted against health, fitness and recreational facilities, one of which resulted in a $500,000 Plaintiff's verdict and another of which resulted in a settlement, despite a defense verdict, of more than $2 million.

While it would be difficult to say that an AED program has been part and parcel of the standard of care owed by such facilities to their patrons, it is fast becoming such a standard, at least in the opinion of this author and other commentators.

One recently filed suit, in fact, alleges that an AED program was part of the standard of care in the year 1999. As a consequence, health, fitness and recreational facilities would be well advised to assess their programs to determine their potential need for AEDs and then consider if the cost of the program ($3,000+ per AED plus training costs and maintenance) versus the potential benefits to be provided justifies the placement of such devices for potential use in such facilities.

The minimal cost associated with the purchase of AEDs and the relative ease with which individuals may be trained in the use of such devices, as one insurance industry publication recently noted, reduce liability risks—not increase them. As the article in this publication indicated, AEDs have not only lifesaving benefits that outweigh the potential downside of such devices, but "unnecessary failure to provide such a program in the event of sudden cardiac arrest is becoming a liability concern."


The Beat Goes On

  • About 250,000 Americans die from sudden cardiac arrest every year.
  • According to the American Heart Association, it's estimated that more than 95 percent of cardiac arrest victims die before reaching the hospital. In cities where CPR training is widespread and EMS response is rapid, the survival rate increased from 7 percent to 26 percent when automated external defibrillators (AED) were available to first responders. In cities where defibrillation is provided within five to seven minutes, the survival rate from cardiac arrest is as high as 49 percent.
  • It's estimated that only 30 percent of emergency medical systems (EMS) in the United States have put AED programs in place (on ambulances).
  • Brain death and permanent death start to occur in just four to six minutes after someone experiences cardiac arrest. Brain damage can start in just three to five minutes. Cardiac arrest can be reversed in most victims if it's treated within a few minutes with defibrillation, an electric shock to the heart to restore a normal heartbeat. A victim's chances of survival are reduced by 7 to 10 percent with every minute that passes. Few attempts at resuscitation succeed after 10 minutes.
  • The Federal Aviation Administration recently adopted a rule that will soon require defibrillators on all planes carrying at least 30 passengers and one attendant.
  • In one case, AEDs were mounted one minute apart in plain view at Chicago's O'Hare and Midway airports in June 1999. In the first 10 months, 14 cardiac arrests occurred with 12 of the 14 victims in ventricular fibrillation. Nine of the 14 victims (64 percent) were revived with an AED and had no brain damage.
  • Whether a sudden cardiac arrest is caused by trauma, drowning, choking, electrocution or heart attack, facilities need to be prepared to help victims as quickly as possible with the highest quality of care. Which is why some park districts, police departments and public facilities investing in portable defibrillators and train personnel in their use.

Source: American Heart Association


David L. Herbert, J.D., is a senior partner with Herbert & Benson, Attorneys at Law, in Canton, Ohio. He is co-editor of The Exercise Standards and Malpractice Reporter, The Sports Medicine Standards and Malpractice Reporter and Legal Aspects of Preventative, Rehabilitative and Recreational Exercise Programs (4th ed.), published by PRC Publishing, 800-336-0083 or www.prcpublishingcorp.com. He can be reached at herblegal@aol.com.