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In the environment of today the moral obligation to aid your fellow man in a time of need often is assessed in light of the legal consequences associated with the rendering of that aid. Thus, one of a series of questions you may face pertain to whether an additional liability is created for the business owner and purchaser of TXO2® AUTOMATED First Aid Oxygen units. The following may be representative of the types of questions you may face:

Questions 1 and 2

1.) What if something goes wrong? What are my chances of being sued?

2.) Am I better off to call 911 and leave first aid treatment to the professionals?

Questions 1 and 2 are addressed together in this paragraph. The reality is that if there is a victim who has suffered or died, then the greater likelihood of a suit. Whether it is legally safer to limit ones involvement to that of calling 911 requires an analysis as to whether a duty of care was owed to the victim and whether calling 911 met the standared of care required under the circumstances. If not, then did the failure to provide care beyond calling 911 aggravate the medical condition of the victim and thereby create an exposure to legal liability and damages.

Questions 3

3.) If I am obligated to do something, then what must I do?

Questions 3 addressed below:

Duty of Care:

Under the law one normally does not have an obligation to assist another, even in the time of a life threatening emergency. One who does assist must do so with reasonable care. Most of your potential customers, however, will fall into a category where a duty of care is owed to one who is suffering from an injury or illness while on the premises. That duty to act may be imposed by law, or that duty may be imposed through internal policies or representations. Whether there is a duty to act is a factual issue although it is much clearer in cases involving common carriers, e.g., airlines, railroads, and hotels. However, it seems unlikely that a business would be successful in today’s legal environment arguing that it did not have a duty to a victim while on the premises.

Standard of Care:

The real question assessing liability is whether calling 911 alone satisfies the reasonable care standard. That answer is central to the liability issue. Therefore, what your clients are really asking when considering the purchase of a TXO2® AUTOMATED First Aid Oxygen unit is whether they are expected to have emergency medical oxygen on site to meet the reasonable care standard. On a larger note, the customer may also be asking what other types of medical equipment should their business have on site to meet the reasonable care standard.

A relevant factor addressing the reasonable care standard in emergency situations today is whether emergency first aid training is required by law for their business, whether their business has emergency training or whether they should have had emergency training for their employees. Numerous first aid training and health organizations such as the American Safety and Health Institute, and non profit agencies such as the American Heart Association, the American Red Cross, the National Safety Council, etc. recommend in their first aid training courses the administration of supplemental oxygen in emergency situations. With this authority the standard of care would suggest emergency medical oxygen and its use would have been appropriate and required.

Assuming that the reasonable care standard would suggest the use of emergency medical oxygen, liability would be analyzed as to whether it is reasonable to expect its presence at your client’s place of business. Most would agree that it would be unreasonable for a professional emergency medical service team to be without emergency oxygen but whether it is also unreasonable for businesses owing a duty to its patrons to be without emergency medical oxygen is the question. Two arguments supporting the reasonableness of emergency oxygen on the premises are: the technology associated with emergency medical oxygen units has evolved to such an extent that these medical devices may be used in emergency first aid situations by those having limited medical training and, in some cases, they may be used by lay people with first aid training, and these units are relatively low cost. To make the argument that the obligation to provide emergency oxygen imposes an extreme burden on the business community may be difficult. Therefore, reasonable care under the circumstances may require the presence of emergency medical oxygen in a business environment.

Lastly, let us assume that your client has purchased a TXO2® AUTOMATED First Aid Oxygen and therefore it is available for use in the event of an emergency, and he is sued. To be successful in litigation the victim or the estate would have to prove that the administration of oxygen caused or aggravated the harm to the victim. As you know from reputable authority, there is strong evidence that the administration of oxygen in a crisis situation can only be of help; there can be no adverse effects of oxygen on a short term basis. Thus, in the absence of harm attributable to the administration of oxygen in an emergency situation there can be no liability. Lastly, the Good Samaritan defense can be asserted if needed.

Conclusion:

At the outset, the probability of causing harm or aggravating the medical condition of the victim by the administration of oxygen in an emergency would appear to be remote. The authoritative evidence is that supplemental oxygen can only help; there are no adverse effects. The more relevant question is, what if I do not have emergency medical oxygen on site? With the trend in litigation it would appear that it is only a matter of time before the law will require businesses to be versed in emergency first aid procedures and to have sufficient medical equipment, consistent with accepted first aid practice, on site to meet emergency situations. Liability may be imposed upon those who do not have such training or such equipment.

There is a corollary argument to the liability question. Litigation has a price above and beyond whether one successfully defends a law suit. Statements which may have applicability in court may not be as applicable in the forum of public opinion. In making a legal defense, one may be forced to argue that there was no legal duty to the victim and no legal duty to provide equipment such as emergency medical oxygen or an automatic external defibrillator. These arguments may not be well received by the public. There is a secondary point, and that is the financial cost of making such arguments in court far exceed, in most cases, the cost of purchasing the equipment.

The following represents a brief review of some of the cases pending
or decided regarding emergency first aid and its availability to a victim.

1.) Lyons v. City of Philadelphia. Nov. 1998:

In this case a taxi driver suffered a fatal heart attack while standing next to his taxi in the holding area of the Philadelphia Airport. Approximately 30 minutes elapsed prior to the summons and arrival of trained emergency medical attention. Unfortunately, the victim suffered severe brain damage due to prolonged deprivation of oxygen. The plaintiff alleged the taxi driver was a business invitee and the city failed to summon and provide emergency medical service and failed to train employees. The City argued among other things that the case should be dismissed because they did not owe the deceased a duty of care, etc. The Court in its opinion noted a special relationship existed such as that where a patron in a theater suffers a heart attack and the theater does nothing. If, the patron’s illness were aggravated which could have been avoided by prompt medical attention, then liability may be found. (Wouldn’t it have been preferential to have TXO2® AUTOMATED First Aid Oxygenunits encased in alarmed safety cabinets readily available at numerous sites in the airport. The cost of making these legal arguments on behalf of the City of Philadelphia far exceeded the cost of providing TXO2® AUTOMATED First Aid Oxygen and perhaps the victim would not have perished.)

2.) Gingeleskie v. Westin Hotel Company (March 1997):

The victim suffered a heart attack while in a taxi on the way from the hotel to the hospital and died while emergency treatment was being administered at the hospital. The plaintiff’s estate argued that defendant Westin had a duty to the deceased and indeed a duty was found. The case was decided on whether Westin had met that duty, i.e., whether reasonable care was provided under the circumstances. From the record it appeared the victim was in a condition to make the trip to the hospital without assistance and none was requested. Hotel policy, on the other hand, required the front desk to call security when the victim asked to be transported to the hospital. The legal issues were decided in Defendant’s favor. (It is not clear from the record as to whether the hotel had emergency oxygen available. (The presence of a TXO2® AUTOMATED First Aid Oxygen, on site, in an alarmed safety cabinet would have suggested to employees and guests that it was available and oxygen could have been provided to the victim even enroute to the hospital.)

3.) Dildar Seekree v. United Air Lines (April 1997):

The estate brought an action against United Air Lines for failing to provide a medical kit with drugs, medicine and equipment for the treatment of a heart attack. Emergency medical oxygen had been provided. United Air Lines argued that one of the claims should have been dropped because it had all medications required by the FAA and did not have a duty to maintain medications. One of the specific pieces of equipment plaintiff alleges the airline should have had was an automatic external defibrillator. The case is pending. (Here is a situation where the cost of the defense to the law suit far exceeds the cost of the equipment. Also, consider the adverse publicity in making the argument that the FAA did not require such equipment.)

4.) Applebaum v. Nemon 678 S.W. 2d 533 (1984):

A Texas court held that a day care center had a duty to the children it cared for but it did not have a duty to have personnel trained in CPR or other kind of life saving aid. (This is a 1984 case. More than likely a day care center today would be expected to have someone versed in emergency first aid. Aside from whether the law now imposes a legal requirement for first aid training, it would seem the parents of today expect more than a do nothing approach.)

5.) Lazar, Richard A., Defibrillators Enter the Business Marketplace, Occupational Health & Safety, August (1997):

In June 1996, a Florida jury found Busch Gardens negligent for not properly training employees to provide emergency care and for failing to have medical equipment , including a defibrillator, on the premises.