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The technical developments leading to the automated external defibrillator (AED) and the success of these units are changing the legal format by which liability is addressed in the workplace and public access setting. Even as few as five years ago, there was little in terms of basic first aid that lay personnel could provide in responding to life threatening emergencies, particularly sudden cardiac arrest. With the characterization of AED's as basic first aid, the legal standard of care owed by businesses and public facilities to provide equipment and render first aid began to change.

It has long been known that sudden cardiac arrest has resulted in numerous fatalities each year. The American Heart Association (AHA) has estimated at least 250,000 die from sudden cardiac arrest each year alone. Through its Emergency Cardiac Care Program, the AHA has been promoting the implementation of AED's in the public access setting. Too many lives were being lost because of the inherent delay in the arrival of emergency medical service (EMS).

Cardiac arrests on airliners and the failure to have appropriate life saving equipment on board, namely an AED, were the basis for the early lawsuits. In an early case against Northwest Airlines,1the husband of Appellant suffered a fatal heart attack in 1995 while on a flight. The case was dismissed on the basis that there was no duty to carry a defibrillator on the aircraft and because there were no industry standards pertaining to defibrillators. This case was followed by Secree v. United Airlines.2United argued, inter alia, that the plaintiff's case must fail on the basis that AED's were not required. The Court ruled in favor of the plaintiff and allowed the case to proceed. Subsequent to those early decisions many carriers installed AED's on the aircraft and, as a result, today most airliners are equipped with defibrillators.

The legal community is sorting out liability issues associated with the failure of businesses and municipalities to have AED's available for use by lay responders.3 Negligence cases are being brought on the basis alleging first, that a duty of care was owed to the victim and second, the failure to have basic first aid equipment and appropriately trained personnel resulted in injury to the victim. The issue of municipal liability and duty of care was raised in the case of Lyons v. City of Philadelphia.4

With the attention of the legal community directed to cardiac arrest and the obligation to have AED's, other disorders that may result either in cardiac arrest or brain damage are now being reviewed. Survivors of sudden cardiac arrest may have severe neurological disorders resulting from oxygen deficiency (hypoxia). The oxygen deficiency may have resulted from the cardiac arrest itself or something other than a cardiac arrest such as a heart attack, respiratory distress or a stroke. Hypoxia may result in children from something as common as a severe asthma attack.

The use of an AED alone in cases of sudden cardiac arrest may be insufficient to address the underlying problem of brain damage due to hypoxia. Using an AED alone has brought positive comments in the form of a life saved today. But, there has been minimal comment on the mental state of the victim on survival. Mouth to mouth CPR currently is taught as a component of AED training. However, the effectiveness of mouth-to-mouth CPR has long been an issue with experts differing as to its effectiveness.5Often the victim may be left with severe neurological disorders. Then too, an AED may not address the other emergencies that can result in brain damage.6

The lay responder cannot be asked to diagnose the condition of the victim in an emergency. The lay responder can only be expected to have a suspicion that the victim is experiencing a true emergency sufficient to trigger a 911 call for emergency medical service. Once having determined that the victim may be experiencing a true emergency, the obvious solution to help prevent hypoxia in the victim, within the realm of basic first aid, is to administer oxygen immediately and prior to arrival of emergency medical service.7The medical issue is simple to address, but the legal requirement to do so may be dependent upon the difficulty of having an oxygen source and difficulty of administering oxygen by the inexperienced and minimally trained first responder. In other words, will the administration of oxygen be considered as an element of basic first aid and within the realm of CPR?

Two recent cases have involved suits against private fitness centers and predicate their claim for damages on the basis that the defendants were negligent for not having an AED.8 One also included an additional basis for negligence in failing to have oxygen. In the Atcovitz case, the plaintiff apparently suffered a cardiac arrest that resulted in brain damage. The issue as to liability did not turn on whether the Defendant had a duty of care as that issue was not even addressed but whether the Defendant did not meet the required standard of care by its failure to have an AED. Atcovitz argued that his injuries could have been mitigated if an automated external defibrillator had been present. The Defendant unsuccessfully argued in a summary judgment proceeding that at that time no one could have legally operated an AED since training was required as a condition for operation. The Superior Court of Pennsylvania ruled that those individuals who lacked training but used an AED in good faith are protected under the Good Samaritan Act 9 anyway, and that failure to have training was not a defense. (This case was reversed. The Supreme Court found no duty to have an AED in 1996 existed.)10

In the case of Q The Sports Club,11 the husband of the plaintiff collapsed while exercising and lost consciousness. The paramedics arrived on the scene within four minutes but by that time the husband, experiencing a heart attack but was not in cardiac arrest, had suffered permanent brain damage. The plaintiff argued the Defendant was negligent for not having O2 or an AED on hand. Although a jury ultimately ruled in favor of the defense on the basis that there were no industry regulations and industry standards requiring AED's and O2, plaintiff by previous agreement received a settlement of 2.25 MM. Liability in this case, as in the Atcoviz case, turned on the legal standard of care owed to the victim and not whether a duty of care was owed.12

Central to the liability issues in the prior cases of five years ago was the fact there were no industry standards. Today, public awareness regarding AED's and emergency O2 is developing rapidly. Numerous training organizations have developed AED training protocols. Congress has passed the Cardiac Arrest Survival Act mandating the investigation by the Secretary of Health and Human Services of the advisability of AED's and resuscitation in Federal Buildings. Hundreds of shopping malls have installed combination units comprised of an AED and O2 (in the form of an automated emergency oxygen unit) in an effort to respond to life threatening emergencies within the malls. Substantial data is being generated daily as to the success of the AED and O2 in these settings and publicly disseminated.13 A large school district in eastern Pennsylvania in response to a death of a student athlete is installing combination units comprised of an AED and O2. The American Red Cross and the American Safety and Health Institute have added AED and O2 training to their basic CPR and first aid curriculum.

In summary, it would appear that a defense to a personal injury claim suffered as a result of an inability to respond to a medical emergency for failure to have both an AED and O2 on the basis that there are no industry standards, will be short lived. Not only must cardiac issues be addressed but life-threatening emergencies leading to hypoxia and brain damage as in the "Q The Sports Club" case must also be addressed. These are important issues for your risk manager and failure to implement an emergency response program including equipment for use by the lay responder in a public access or workplace setting may present an unnecessary risk of exposure and possibly unnecessary liability. 14

Footnotes:

1.) Lynn Talit et al v. Northwest Airlines, Inc. 2000 Conn. App. LEXIS 238 Back to article

2.) Jagit Tandon, as personal representative of Dildar Seekree, deceased, Plaintiff, v. United Air Lines, defendant, 1997 U.S. Dist. LEXIS 4115, (S.D.N.Y. April 1997, 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 alleged was that the airline should have had an automatic external defibrillator. Back to Article

3.) Legal Implications of Lay Use of Automated External Defibrillators In Non-Hospital settings, 17. J. Contemp. Health L. & Pol'y 275. Extensive review of issues associated with sudden cardiac arrest and the use of automated external defibrillators.Back to Article

4.) Carolyn W. Lyons, as Executrix of the Estate of John F. Lyons, Plaintiff, v. City of Philadelphia, et al, defendants, 1998 U.S. Dist. LEXIS 17281, E.D. Pa. (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 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. In a subsequent jury trial the plaintiff was awarded a judgment totaling $5.75MM.Back to Article

5.) Vera Gianechini, Individually and as the Natural Tutrix of the Minor Child David Gianechini and Executrix of the Estate of Ernest Gianechini v. City of New Orleans, New Orleans Fire Department, Arthur Turner, Joseph Fricano, Early American Insurance Company and XYZ Insurers, 1982 La, App. LEXIS 6785. One of the evidentiary considerations in the case was the effectiveness of CPR. Dr. Wayne Owens, an expert in internal medicine and cardiology and CPR testified that proper CPR initiated within one minute can result in a survival rate of 70-80% on a national average but on cross-examination, noted that the salvage rate in Seattle, which has a better emergency program than New Orleans is initial out-of-hospital resuscitation of 40% of patients with 25% discharged from hospital as long term survivors. Dr. John Lownry testified the survival rate is pretty low and those resuscitated within three minutes or less indicate only 16% survived and one-half had severe neurological deficits and had to be admitted to nursing homes.Back to Article

6.) Emergency Medicine an Approach to Clinical Problem-Solving by W.B. Saunders Company, A Division of Harcourt Brace & Company p. 45 (1991) noted that, "[o]f the estimated 1000 cardiac arrests that occur per day in the United States, approximately half (48%) are cardiac in origin. Underlying ischemic disease accounts for two thirds of these arrests. Another major cause of cardiopulmonary arrest is hypoxia which results in dysrhythmias, myocardial ischemia, and eventual infarction. Hypoxia may be the result of alveolar hypoventilation, an upper airway obstruction, or any severe parenchymal lung disease."Back to Article

7.) Oxygen deficiency (hypoxia) is a major cause of cardiac arrest and brain damage. It can also lead to aggravation of a heart attack (not cardiac arrest), a stroke and damage to many organs. Oxygen is a necessary component in basic first aid to combat hypoxia. In a resuscitation procedure, mouth-to-mouth CPR is markedly inferior to oxygen enriched CPR.
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8.) Jerry Atcovitz and Rosyln Atcovitz, H/W, Appellants v. Gulph Mills Tennis Club, Inc. JKST Inc. and Gulph Mills/JKST Tennis Club, Inc., Lafayette Ambulance Rescue Squad 1, Appellee, 2001 Pa Super. LEXIS 16. and Chai v. Q The Sports Club, Case, 2000 Jury Verdict Review Publications, Inc. Case No. 98-16053.Back to Article

9.) 42 Pa. Cons. Stat. Ann. § 8331.2(c) and (e).Back to Article

10.) 2002 Pa LEXIS 2832, decided December 20, 2002.Back to Article

11.) This case demonstrates the inadequacy of not installing an AED and O2. Plaintiff's husband apparently suffered a heart attack while playing tennis but did not go into ventricular defibrillation or cardiac arrest. He had progressive breathing difficulty culminating in a respiratory arrest approximately at the time the paramedics arrived on the scene. Unfortunately irreversible brain damage had already occurred by that time. The paramedics on arrival immediately ventilated the victim with oxygen, thus preventing a cardiac arrest and therefore the need for the defibrillator. An AED obviously is ineffective in responding to this type of emergency since the victim did not suffer from sudden cardiac arrest. CPR is also ineffective because the victim was breathing even though slight. The administration of O2 may well have mitigated the brain damage subsequent to the heart attack.Back to Article

12.) Contrast Mandel v. Canyon Ranch Inc. et al, Superior Court of the Sate of Arizona, Puma County, Case Number 312777. In that case a 50- year old guest suffered a cardiac arrest while playing volleyball. The estate that the standard of care required a defibrillator be present. The Defendant's argued that the guidelines in the second edition of the ACSM Health/Fitness Facility Standards and Guidelines did not require a defibrillator, at least in facilities that did not provide cardiac rehabilitate -type services and that personnel had to be properly trained as part of an emergency response plan.
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13.) JEMS, Vol. 25, No. 3 March 2000 and Security Magazine, Vol. 37, Number 2, February 2000.Back to Article

14.) Other commentators have also addressed the issue. See 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.Back to Article

Also see, "A Defibrillator for Every High School, A Troy Lawyer Advocates the Use of Cardiac Equipment, 80-May Mich. B.J. 30 (2001)

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