Is a property owner required to utilize an available AED to help save a life? Under certain circumstances an AED when available must be utilized or the business or property owner may be held liable for the results. New York's Appellate Division, Second Department (covering the counties of Suffolk, Nassau, Queens, Kings, Westchester and Rockland) recently held that a health club and a health club employee had an obligation to use an AED device in the gym, and can be held liable for a gym patron's death. Such decision appears to conflict with a ruling of New York's Appellate Division, First Department (covering New York County, and Bronx County). Both decisions interpreted statutes, which are discussed below. NY's General Business Law Section 627-a requires gyms with more than 500 members to have an Automated External Defibrillator (AED) on the property, and someone trained to use it. Pursuant to NY Public Health Law §§ 3000-a and 3000-b], any public access defibrillation provider (which includes a gym), or any employee . . . of the provider who voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED to a person who is unconscious, ill or injured, shall be liable only pursuant to Public Health Law § 3000-a. NY Public Health Law § 3000-a, "Emergency medical treatment" states that any person who voluntarily and without expectation of monetary compensation, renders first aid or emergency treatment . . . outside a hospital, doctor's office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill or injured, shall not be liable for damages . . . for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries [or death] was caused by gross negligence on the part of such person. The section also states that an entity that makes available an AED as required by law, shall not be liable for damages arising either from the use of that equipment by a person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of . . . a medical emergency or . . .; provided that this subdivision shall not limit the person's or entity's . . . or emergency health care provider's liability for his, her or its own negligence, gross negligence or intentional misconduct. In the first Department case of DiGiulio of Gran Inc. d/b/a New York Health & Racquet Club on 8/25/2010 the court dismissed the case stating that:
[P]laintiff has not established a common-law negligence claim. The decedent, in regularly using the club's treadmills, assumed the inherent risk of a heart attack that attends intense exercise ...After the heart attack, the club's employees more than fulfilled their duty of care by immediately calling 911 and performing CPR, had no common-law duty to use the AED, and could not be held liable for not using it. Nor was the club vicariously liable for breaching a common-law duty of care that the employees had assumed by coming to Digiulio's aid as "Good Samaritans." Since the employees were providing emergency medical treatment to Digiulio, they could only have been liable for gross negligence (see Public Health Law § 3000-a ), which is "conduct that evinces a reckless disregard for the rights of others or 'smacks' of intentional wrongdoing" ...The complained-of conduct—namely, James's failure during an ongoing crisis to check whether the cabinet door was locked before searching for the key, and the treatment of Digiulio with CPR instead of the AED—does not constitute gross negligence. Turning to the statutory claim, we reject plaintiff's argument that General Business Law § 627-a implicitly obligated the club to use its AED to treat Digiulio.However, the Second Department Appellate Court ruled differently in Miglino v. Bally Total Fitness of Greater New York on 12/27/2011. In that case the court stated:
Applying these principles, and inasmuch as there is no dispute that General Business Law § 627-a requires certain health club facilities to provide an AED on the premises, as well as a person trained to use such device, it is anomalous to conclude that there is no duty to use the device should the need arise. Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?Thus, the Second Department in the case against Bally's found that depending on the facts, Bally's could be held liable for failing to use the AED device. Further, the health club could not be held exempt for it's own negligence under the Good Samaritan Laws, since the Good Samaritan Laws do not exempt certain professionals such as doctors and nurses, and in this scenario trained AED operators in Health Clubs, from their own negligence. Thus the case was allowed to proceed so that discovery could be conducted to develop the facts of the occurrence. It is a sure bet though that Bally's will continue to dispute that they have any legal responsibility and seek to have the case dismissed at a later stage. There will no doubt be more discussion and cases involving New York's Good Samaritan Laws, and their interaction with the laws requiring the presence and use of AED devices. The NY Court of Appeals will need to eventually resolve the split between the Appellate Divisions. If you or someone you know has been injured due to the failure to use an AED device you should contact a lawyer to discuss your rights. Zalman Schnurman & Miner is a personal injury law firm that represents victims of accidents. Feel free to call us for a free consultation at 1-800-LAWLINE (1-800-5295463). The contents of this blog are for informational purposes only, and should not be considered legal advice. For legal advice you should contact an attorney. Zalman Schnurman & Miner P.C. is a New York personal injury law firm that handles all types of injury and accident cases. We can be reached at 1-800-LAWLINE or (1-800-5295463).