Aeds – The Liability Myth

The February 24 Wall Street Journal carried a story by Scott McCartney entitled "Why Hotels Resist Having Defibrillators." In a nutshell, the position reportedly taken by the hotel industry is that the risk of being sued as a result of having an automated external defibrillator (AED / defibrillator) on the premises outweighs the lifesaving benefits to the public of putting them there.

Without question the number of civil lawsuits over the past years has and continues to grow at an unprecedented, even explosive, rate. Businesses in general are reluctant to voluntarily take positive action, even for the public good, which could subject them to the substantial cost of defending their good deeds in court, and sometimes paying out money damages.

In the industry, it's been referred to as "No good deed goes unpunished". It's a pretty sad state of affairs when, according to the WSJ article, a hotel has to be worried that by spending as much as $1,800 for a lifesaving Automated External Defibrillator (AED), they risk being sued for having too few AEDs on the premises. None is OK, but one could land you in hot water.

But as the proven lifesaving advantages of having quick access to an AED have become more widely recognized, laws mandating their installation have become more common. AED's are presently required by federal law on commercial aircraft and cruise ships. A growing number of states require AEDs in health clubs and gyms, dental offices, schools, athletic events and public access facilities where large numbers of people gather such as airports and transit stations. The U.S. Congress and the California legislature have passed resolutions urging implementation of an AED program in all schools, grades K through university level. A growing number of California school districts, where AEDs are not yet mandated, have voluntarily installed them in schools and public buildings. They are present in most major airports. San Diego, California's third largest city, passed an ordinance in December 2008 requiring AEDs in new construction of virtually every building with occupancy loads of 200 or more. This includes hotels, offices, stores, factories, warehouses and schools.

As the numbers of AEDs, and the lives saved due to their presence increases, so does the strength of the argument that the absence of an AED in a public gathering place (such as a hotel) falls below the reasonable standard of care in the community and exposes the owners and/or operators to negligence litigation.

On the other hand, there are positive public and community relations advantages to "doing the right thing" and it's reasonable to expect someone who places an AED in a public access accommodation such as a hotel to maintain it properly, just as you would a fire extinguisher or a smoke alarm.

Few would argue about whether a trained paramedic would be preferred over an untrained hotel employee or passerby in rendering CPR or activating an AED. But in the case of a sudden cardiac arrest, the difference between life and death has already been determined in the majority of cases before the ambulance with the paramedic aboard arrives. Given that the chances of survival are as high as 70% if a defibrillator is utilized within the first 5 minutes of an attack and around 5% by the time 10 minutes go by, the odds weigh heavily in favor of immediate defibrillation, whether given by an untrained responder or not.

Good Samaritan Laws were put on the books to deal with such situations These are laws generally giving a bystander protection from civil liability for voluntarily giving aid to someone who is injured or ill in an emergency situation. They were designed to reduce the reluctance of persons to render aid or assistance for fear of being held liable for their actions in a civil or criminal lawsuit.

Every state has some form of Good Samaritan Law and each has separately addressed the involvement of voluntary CPR and AED responders with proper CPR and First Aid training. Some offer more protections than others. California has addressed the specific subject of AEDs in what may be the most comprehensive set of statutes in the country. California's basic Good Samaritan statute has been held to protect those rendering emergency medical care at the scene of a medical emergency.

It therefore provides a liability shield for those rendering CPR, AED, First Aid or similar assistance in an emergency situation if certain requirements are met.

In addition to the general Good Samaritan Statute, California provides specific protection to those providing and utilizing AEDs.

Individuals who operate an AED in an emergency situation are protected from liability under Civil Code §1714.21(b). 

An entity that purchases an AED also has immunity under Civil Code §1797.196 if it complies with for following conditions:

• The AED be maintained and regularly tested.   
• The AED be checked for readiness after each use and at least once every 30 days if the AED has not been used in the preceding 30 days.
• Any person who uses an AED contacts emergency personnel as soon as possible, and reports any use of the AED to a licensed physician and to the local emergency medical services agency.
• For every AED unit acquired up to 5 units, no less than 1 employee per AED unit shall complete a training course in CPR and AED use.
• There is a written plan that describes the procedures to be followed in the event of an emergency that may involve the use of an AED.

The maintenance and readiness checks can be accomplished by simply observing the AED and assuring a blinking green light is present, indicating it is "ready."

Training at least one employee per unit for the first 5 units and one for each 5 units thereafter seems reasonable and easily accomplished, as is having one on site during normal operating hours.

Obviously each entity must decide for itself if the benefits of purchasing an AED outweigh the risks. A simple internet search reveals news stories of "AED saves" appearing daily. There have been reports of litigation in which it was alleged that an AED should have been present and wasn't, but one would be hard pressed to find one in which it was alleged that an AED was used and didn't work properly.

"Annuvia has placed AEDs and trained personnel in AED/CPR in a large number of major law firms, businesses, schools and public agencies nationwide. Clearly, a significant and growing number of ethically responsible law firms, businesses, public entities and even insurance companies have decided the benefits far outweigh the risks," states Micah Bongberg, VP Business Development for Annuvia, Inc.

Not only does placement of AEDs in public access buildings assure adherence to a reasonable standard of care for employees and the public, but more importantly it's sound public policy, a great public relations opportunity and evidences a commitment to the community at large, that says "We care about you and are willing to invest in the latest medical technology to give you a better chance of survival in case of an emergency."