State AED laws may create liability; make sure you understand what your state laws say. Florida, an AED law affecting high schools created liability for the HS.Posted: December 19, 2016
A Florida statute requiring schools to acquire and train all employees on the use of AED’s, created liability when the AED was not used.
State: Florida, Supreme Court of Florida
Plaintiff: Abel Limones, Sr., et al
Defendant: School District of Lee County et al.
Plaintiff Claims: Common Law negligence and breach of a duty required by statute, Florida Statute 1006.165
Defendant Defenses: No duty and Immune under 1006.165 and 768.1325
Holding: for the Plaintiff
The deceased was a 15-year-old boy who played on a high school soccer team. While playing a high school soccer game he collapsed. His coach ran onto the field and started CPR and was assisted by two nurses who were sitting in the stands.
Allegedly, the coach asked several times for an AED (Automatic External Defibrillator). An AED was located in a storage are at the end of the field. However, no one ever retrieved the AED.
Ten minutes later, the fire department arrived and attempted to revive the student with their AED. That did not work. Twenty-six minutes later, an ambulance arrived and with the application of the ambulance AED and the application of drugs, EMS was able to restore the student’s heart rate.
The plaintiff’s expert witness testified that the 26 minutes without the use of the AED, not having a heartbeat, deprived the student of oxygen, which caused brain damage. The student was left in a persistent vegetative state.
The trial court granted the defendants motion for summary judgment. The plaintiff appealed and the Florida Appellate Court upheld the dismal by the trial court. The Florida Supreme Court then heard the appeal and issued this decision.
Analysis: making sense of the law based on these facts.
The Supreme Court of Florida first looked at basic negligence claims pursuant to Florida’s law. Florida’s law applies the same four steps to prove negligence as most other states.
We have long held that to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.
A legal question is one that must be answered by the courts. So whether or not a duty existed, in proving negligence, is first reviewed by the trial judge. Factual questions are reviewed by the finder of fact, most commonly called the jury. Looking at the issue of duty, the court found under Florida Law, there were four sources of duty.
Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.
Rarely do courts define how duties are created. Consequently, reviewing how a duty is created is interesting. The last way, general facts of the case, are how most duties are determined. The plaintiff argues there is a duty because of how others act or fail to act or based on the testimony from expert witnesses. Alternatively, an organization or trade association has published a list of the standards of care, which are then used to prove the duty failed.
The court then must examine if the minimum requirements for a duty have been met.
As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited. The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors.
In this case, the parties were relying on a statute; the Florida Statute that put AED’s in schools and required all school employees to be trained on their use, 768.1325. Once the court determines that a duty existed, then the jury must decide all other issues of the case.
Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law. We have clearly stated that the remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder.
The court then looked into the duty of schools with regard to students. A special relationship exists between a student (and their parents) and schools. A special relationship then takes the duty out from limited if any duty at all to a specific duty of care. Here that relationship creates a duty upon the school to act as a reasonable man would.
As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that a school functions at least partially in the place of parents during the school day and school-sponsored activities.
The duty thus created or established requires a school to reasonably supervise students.
This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students.
It should be noted, however, when referring to “school” in this manner; the courts are talking about public schools and students under the age of 18. Colleges have very different duties, especially outside of the classroom or off campus.
That supervision duty schools have, has five sub-elements or additional duties when dealing with student athletes.
Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury.
Here, several of the specific duties obviously could be applied to the case. Consequently, the court found the school owed a duty to the deceased.
Having determined the duty owed by the school to the deceased the court held that the school had a duty to the deceased that was breached. The use of an AED, required at the school by statute, was a reasonable duty owed to the deceased.
Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now.
The plaintiffs also argued there were additional duties owed based on the Florida School AED statute. However, the court declined to review this issue. Meaning, it is undecided and could go either way in the future.
The defendant then argued they were immune from suit based on the Florida AED Good Samaritan Act. The court then looked at the immunity statute set forth in the Florida School AED Statute. The Statute required schools to have AED’s and have to train all employees in the use of the AED. The court found that employees and volunteers could be covered under the Florida AED Good Samaritan Act. If they used the AED’s they would be immune from suit.
The court in reading the Florida AED Good Samaritan Act found two different groups of people were created by the act. However, only one was protected by the act and immune from suit. Those who use or attempt to use an AED are immune. Those that only acquire the AED, are not immune because they did not attempt to use the AED.
Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used.
That immunity only applied to the use of the AED. Here there was no use of the AED, so the statute did not provide any immunity.
It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under section 768.1325 and such section has absolutely no application here.
The court summarized its analysis.
We hold that Respondent owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes.
So Now What?
So in Florida, a statute that requires someone, such as a school to have AED’s then requires the school to use the AED’s and if they do not, they breach the common law duty of care to their students.
AED laws are going to become a carnival ride in attempting to understand and use them without creating liability or remaining immune from suit. You probably not only want to be on top of the law that is being passed in your state; you should probably go down and testify so the legislature in an attempt to save a life does not sink your business.
It is sad when a young man dies, especially, if he could have been saved. That issue is probably going to trial.
What do you think? Leave a comment.
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Fla. Stat. § 1006.165 (2016)
§ 1006.165. Automated external defibrillator; user training.
(1) Each public school that is a member of the Florida High School Athletic Association must have an operational automated external defibrillator on the school grounds. Public and private partnerships are encouraged to cover the cost associated with the purchase and placement of the defibrillator and training in the use of the defibrillator.
(2) Each school must ensure that all employees or volunteers who are reasonably expected to use the device obtain appropriate training, including completion of a course in cardiopulmonary resuscitation or a basic first aid course that includes cardiopulmonary resuscitation training, and demonstrated proficiency in the use of an automated external defibrillator.
(3) The location of each automated external defibrillator must be registered with a local emergency medical services medical director.
(4) The use of automated external defibrillators by employees and volunteers is covered under ss. 768.13 and 768.1325.
Fla. Stat. § 768.1325 (2016)
§ 768.1325. Cardiac Arrest Survival Act; immunity from civil liability.
(1) This section may be cited as the “Cardiac Arrest Survival Act.”
(2) As used in this section:
(a) “Perceived medical emergency” means circumstances in which the behavior of an individual leads a reasonable person to believe that the individual is experiencing a life-threatening medical condition that requires an immediate medical response regarding the heart or other cardiopulmonary functioning of the individual.
(b) “Automated external defibrillator device” means a lifesaving defibrillator device that:
1. Is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act.
2. Is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of determining without intervention by the user of the device whether defibrillation should be performed.
3. Upon determining that defibrillation should be performed, is able to deliver an electrical shock to an individual.
(c) “Harm” means damage or loss of any and all types, including, but not limited to, physical, nonphysical, economic, noneconomic, actual, compensatory, consequential, incidental, and punitive damages or losses.
(3) Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723, is immune from such liability, if the harm was not due to the failure of such person to:
(a) Properly maintain and test the device; or
(b) Provide appropriate training in the use of the device to an employee or agent of the acquirer when the employee or agent was the person who used the device on the victim, except that such requirement of training does not apply if:
1. The device is equipped with audible, visual, or written instructions on its use, including any such visual or written instructions posted on or adjacent to the device;
2. The employee or agent was not an employee or agent who would have been reasonably expected to use the device; or
3. The period of time elapsing between the engagement of the person as an employee or agent and the occurrence of the harm, or between the acquisition of the device and the occurrence of the harm in any case in which the device was acquired after engagement of the employee or agent, was not a reasonably sufficient period in which to provide the training.
(4) Immunity under subsection (3) does not apply to a person if:
(a) The harm involved was caused by that person’s willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed;
(b) The person is a licensed or certified health professional who used the automated external defibrillator device while acting within the scope of the license or certification of the professional and within the scope of the employment or agency of the professional;
(c) The person is a hospital, clinic, or other entity whose primary purpose is providing health care directly to patients, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent;
(d) The person is an acquirer of the device who leased the device to a health care entity, or who otherwise provided the device to such entity for compensation without selling the device to the entity, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent; or
(e) The person is the manufacturer of the device.
(5) This section does not establish any cause of action. This section does not require that an automated external defibrillator device be placed at any building or other location or require an acquirer to make available on its premises one or more employees or agents trained in the use of the device.
(6) An insurer may not require an acquirer of an automated external defibrillator device which is a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723 to purchase medical malpractice liability coverage as a condition of issuing any other coverage carried by the association, and an insurer may not exclude damages resulting from the use of an automated external defibrillator device from coverage under a general liability policy issued to an association.
Pennsylvania Consolidated Statutes
Title 42. Judiciary and Judicial Procedure
Part VII. Civil Actions and Proceedings
Chapter 83. Particular Rights and Immunities
Subchapter C. Immunities Generally
42 Pa.C.S. § 8331 (2016)
§ 8331. Medical good Samaritan civil immunity.
(a) General rule. —
Any physician or any other practitioner of the healing arts or any registered nurse, licensed by any state, who happens by chance upon the scene of an emergency or who arrives on the scene of an emergency by reason of serving on an emergency call panel or similar committee of a county medical society or who is called to the scene of an emergency by the police or other duly constituted officers of a government unit or who is present when an emergency occurs and who, in good faith, renders emergency care at the scene of the emergency, shall not be liable for any civil damages as a result of any acts or omissions by such physician or practitioner or registered nurse in rendering the emergency care, except any acts or omissions intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving emergency care.
(b) Definition. —
As used in this section “good faith” shall include, but is not limited to, a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed until the patient is hospitalized.
HISTORY: Act 1976-142 (S.B. 935), P.L. 586, § 2, approved July 9, 1976, See section of this act for effective date information.
Section 2 of Act 1976-142 enacted new subchapter C, “Immunities Generally.”
1. Neither the Emergency Medical Services Act, Pa. Stat. Ann. tit. 35, §§ 6921 to 6938, nor the AED Good Samaritan Act, 42 Pa. Cons. Stat. § 8331.2, imposed a duty upon a tennis club to acquire, maintain, and use an automated external defibrillator, as defined in 42 Pa. Cons. Stat. § 8331.2(f), and summary judgment was properly entered against a tennis player who suffered a stroke while playing tennis and sought damages for the club’s negligence in failing to have a defibrillator available for such an emergency. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).
2. Good Samaritan statute did not apply to a situation where a doctor received a telephone call from a hospital and provided advice for treatment of a hospitalized patient who was suffering from respiratory difficulties; the statute did not provide the doctor with a defense to an action resulting from the death of the patient and the doctor’s summary judgment motion was denied. The Good Samaritan statute did not apply because the doctor was not at the scene of an emergency, as required by 42 Pa.C.S. § 8331(a), and § 8331(b) implied that the statute did not apply to hospitalized patients. Phebus v. UPMC Horizon, 71 Pa. D. & C.4th 513, 2005 Pa. Dist. & Cnty. Dec. LEXIS 68 (Pa. County Ct. 2005).
3. Neither the Emergency Medical Services Act, Pa. Stat. Ann. tit. 35, §§ 6921 to 6938, nor the AED Good Samaritan Act, 42 Pa. Cons. Stat. § 8331.2, imposed a duty upon a tennis club to acquire, maintain, and use an automated external defibrillator, as defined in 42 Pa. Cons. Stat. § 8331.2(f), and summary judgment was properly entered against a tennis player who suffered a stroke while playing tennis and sought damages for the club’s negligence in failing to have a defibrillator available for such an emergency. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).
4. Good Samaritan statute did not apply to a situation where a doctor received a telephone call from a hospital and provided advice for treatment of a hospitalized patient who was suffering from respiratory difficulties; the statute did not provide the doctor with a defense to an action resulting from the death of the patient and the doctor’s summary judgment motion was denied. The Good Samaritan statute did not apply because the doctor was not at the scene of an emergency, as required by 42 Pa.C.S. § 8331(a), and § 8331(b) implied that the statute did not apply to hospitalized patients. Phebus v. UPMC Horizon, 71 Pa. D. & C.4th 513, 2005 Pa. Dist. & Cnty. Dec. LEXIS 68 (Pa. County Ct. 2005).
5. Neither the Emergency Medical Services Act, Pa. Stat. Ann. tit. 35, §§ 6921 to 6938, nor the AED Good Samaritan Act, 42 Pa. Cons. Stat. § 8331.2, imposed a duty upon a tennis club to acquire, maintain, and use an automated external defibrillator, as defined in 42 Pa. Cons. Stat. § 8331.2(f), and summary judgment was properly entered against a tennis player who suffered a stroke while playing tennis and sought damages for the club’s negligence in failing to have a defibrillator available for such an emergency. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).
3943. 14-246 Pennsylvania Transaction Guide–Legal Forms § 246.31, Division 1 Individuals and Families, Standard of Care Owed by Health Care Providers.
3944. 38 P.L.E. PHYSICIANS AND SURGEONS § 25, Pennsylvania Law Encyclopedia, Acts or Omissions Constituting Malpractice, Copyright 2013, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Pennsylvania Consolidated Statutes
Title 42. Judiciary and Judicial Procedure
Part VII. Civil Actions and Proceedings
Chapter 83. Particular Rights and Immunities
Subchapter C. Immunities Generally
42 Pa.C.S. § 8331.2 (2016)
§ 8331.2. Good Samaritan civil immunity for use of automated external defibrillator.
(a) General rule. —
Any person who in good faith acquires and maintains an AED or uses an AED in an emergency shall not be liable for any civil damages as a result of any acts or omissions by an individual using the AED, except if acts or omissions intentionally designed to harm or any grossly negligent acts or omissions result in harm to the individual receiving the AED treatment.
(b) Requirements. —
Any person who acquires and maintains an AED for use in accordance with this section shall:
(1) Ensure that expected AED users receive training pursuant to subsection (c).
(2) Maintain and test the AED according to the manufacturer’s operational guidelines.
(3) Provide instruction requiring the user of the AED to utilize available means to immediately contact and activate the emergency medical services system.
(4) Assure that any appropriate data or information is made available to emergency medical services personnel or other health care providers as requested.
(c) Training. —
For purposes of this section, expected AED users shall complete training in the use of an AED consistent with American Red Cross, American Heart Association or other national standards as identified and approved by the Department of Health in consultation with the Pennsylvania Emergency Health Services Council.
(d) Obstruction of emergency medical services personnel. —
Nothing in this section shall relieve a person who uses an AED from civil damages when that person obstructs or interferes with care and treatment being provided by emergency medical services personnel or a health professional.
(e) Exception. —
Any individual who lacks the training set forth in subsection (c) but who has access to an AED and in good faith uses an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances shall receive immunity from civil damages as set forth in subsection (a).
(f) Definitions. —
As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Automated external defibrillator” or “AED.” –A portable device that uses electric shock to restore a stable heart rhythm to an individual in cardiac arrest.
“Emergency.” –A situation where an individual is believed to be in cardiac arrest or is in need of immediate medical attention to prevent death or serious injury.
“Good faith.” –Includes a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed until emergency medical services personnel arrive or the person is hospitalized.
HISTORY: Act 1998-126 (H.B. 1897), P.L. 949, § 11, approved Dec. 15, 1998, eff. Jan. 1, 1999; Act 2012-125 (S.B. 351), P.L. 1081, § 1, approved July 5, 2012, eff. in 60 days.
The 2012 amendment rewrote (a); deleted “not be liable for civil damages provided that the person” at the end of the introductory language of (b); rewrote (c), which formerly read: “For purposes of this section, expected AED users shall complete training in the use of an AED provided by the American National Red Cross or the American Heart Association or through an equivalent course of instruction approved by the Department of Health in consultation with a technical committee of the Pennsylvania Emergency Health Services Council”; deleted (e); in (f), substituted “or is” for “and” in the definition of “Emergency”; and made related changes.
Go back to the top of LexisNexis (R) NotesCASE NOTES
1. Trial court properly entered summary judgment in favor of a tennis club in a negligence action by a stroke victim because neither the Emergency Medical Services Act nor the Good Samaritan Act imposed a duty upon the club to acquire, maintain, and use an automated external defibrillator. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).
2. Unpublished decision: Court recommended the affirmance of its decision granting judgment to a health club in an executor’s suit brought after the club’s patron collapsed and died after suffering sudden cardiac arrest while exercising at the club. While the executor maintained that the club had a duty to have an automated external defibrillator (AED) on its premises, the court rejected this contention, noting that, under binding state supreme court precedent, a sports club had no duty under the Emergency Medical Services Act or the Good Samaritan Act to acquire, maintain, or use an AED. Goldin v. Bally Total Fitness Corp., 2011 Phila. Ct. Com. Pl. LEXIS 54 (Pa. C.P.), aff’d, 38 A.3d 931, 2011 Pa. Super. LEXIS 5470 (Pa. Super. Ct. 2011).
3946. Definitions, see20 Pa.C.S. § 5483.
3947. 28 Pa. Code § 1051.2(2014), PART EMERGENCY MEDICAL SERVICES.
3948. 28 Pa. Code § 1051.51(2014), PART EMERGENCY MEDICAL SERVICES.
3949. 36 P.L.E. NEGLIGENCE § 2, Pennsylvania Law Encyclopedia, Duty To Exercise Care, Copyright 2013, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
3950. 6-LIV Remick’s Pennsylvania Orphans’ Court Practice § 54.01, CHAPTER LIV Health Care, Living Wills, Health Care Agents and Representatives, and Out-of-Hospital Nonresuscitation Act.
Jerry Atcovitz and Roslyn Atcovitz, H/W, v. Gulph Mills Tennis Club, Inc, Jkst, Inc. and Gulph Mills/Jkst Tennis Club, Inc., Lafayette Ambulance Rescue Squad I; appeal of: Gulph Mills Tennis Club, Inc., Jkst, Inc. and Gulph Mills/Jkst Tennis Club
No. 29 EAP 2001
SUPREME COURT OF PENNSYLVANIA
571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832
April 8, 2002, Argued
December 20, 2002, Decided
PRIOR HISTORY: [***1] Appeal from the Order of the Superior Court entered January 16, 2001, at No. 3061 EDA 1999, reversing and remanding the Order of the Court of Common Pleas of Philadelphia County, Civil Division, entered September 13, 1999, at No. 1357 January Term 1998. Trial Court Judge: Flora Barth Wolf, Judge. Intermediate Court Judges: Joseph A. Del Sole, President Judge, Joseph A. Hudock and Correale F. Stevens, JJ.
Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 2001 Pa. Super. LEXIS 16 (2001).
DISPOSITION: Reversed. Trial court’s grant of summary judgment in favor of Gulph Mills affirmed.
COUNSEL: For Gulph Mills Tennis Club, Inc., APPELLANT: Lucien R. Tharaud, Esq.
For Gulph Mills/JKST Tennis Club, Inc., APPELLANT: Charles W. Craven, Esq.
For Jerry Atcovitz and Rosyln Atcovitz, h/w, APPELLEE: Alfred Anthony Brown, Esq. and J. Craig Currie, Esq.
JUDGES: BEFORE: ZAPPALA, C.J., AND CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR AND EAKIN, JJ. MR. CHIEF JUSTICE ZAPPALA. Mr. Justice Cappy files a concurring opinion. Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.
OPINION BY: ZAPPALA
[**1220] MR. CHIEF JUSTICE ZAPPALA [*583]
We granted allowance of appeal in this case to determine whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter “AED,” on its premises for emergency use. 1 For the reasons that follow, we hold that such clubs do not owe a duty to have an AED available on their premises.
1 An AED is [HN1] “[a] portable device that uses electric shock to restore a stable heart rhythm to an individual in cardiac arrest.” 42 Pa.C.S. § 8331.2(f).
[***2] On January 16, 1996, Jerry Atcovitz suffered a stroke, secondary to a heart attack, while playing tennis at the Gulph Mills Tennis Club. 2 Within a minute of his collapse, two tennis club members administered cardiopulmonary resuscitation and called for an ambulance. Approximately ten minutes later, emergency medical technicians arrived and administered a series of defibrillation shocks with an AED and transported Atcovitz to a hospital. 3 Although he survived the incident, Atcovitz “sustained severe and permanent injuries, including anoxic encephalopathy with multiple permanent central nervous system disorders. He is no longer able to think or concentrate, is no longer able to walk or get out of bed unassisted, and requires assistance in virtually every aspect of his life.” R. 42a-43a.
2 Atcovitz was then sixty-four years old and had a twenty-year history of heart problems, including a previous heart attack and bypass surgery. Appellees do not assert that Gulph Mills had knowledge of such history.
3 Atcovitz did not respond to any of the AED shocks administered by the emergency medical technicians, but did subsequently respond to a transcutaneous pacemaker. From this, Gulph Mills remarks that Atcovitz was suffering from “atrial fibrillation,” as opposed to “ventricular fibrillation.” Thus, Gulph Mills implies that, even if Atcovitz would have received electrical defibrillation immediately after he collapsed, it would not have had any beneficial effect. Appellant’s Br. at 6; see also R. 30a, 147a-149a. This Court, however, must view the record in the light most favorable to the nonmoving party in reviewing a grant of summary judgment. Thus, we must operate under the assumption that earlier use of an AED would have mitigated Atcovitz’s injuries.
[***3] [*584] Appellees, Jerry Atcovitz and his wife, Roslyn, sued Gulph Mills for negligence in the Court of Common Pleas of Philadelphia County. 4 Specifically, they claimed that, “had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and, therefore, that [Gulph Mills] is liable to him for damages.” Trial Ct. Op. at 2. In its defense, Gulph Mills asserted that, at the time of Atcovitz’s injury, its employees would not have been permitted by law to use an AED.
4 Atcovitz also sued Lafayette Ambulance Rescue Squad, but the parties eventually agreed to dismissal of the rescue squad with prejudice. R. 111a-112a.
In an attempt to preclude Gulph Mills from asserting its defense, Appellees moved for partial summary judgment, which the trial court denied. Immediately prior to trial, however, Appellees orally moved for reconsideration of their motion. At the same time, Gulph Mills cross-moved [**1221] for summary judgment. 5 The trial court granted Gulph Mills’s [***4] cross-motion for summary judgment and dismissed the case. The court based its grant of summary judgment on the Emergency Medical Services Act, 6 hereinafter the “EMS Act,” and the regulations issued pursuant thereto. The court concluded that, at the time of Atcovitz’s injury, Gulph Mills’s employees were legally prohibited from using an AED. Thus, the court held that Gulph Mills “cannot be held negligent for failure to use the device.” Trial Ct. Op. at 4.
5 The Superior Court, citing Pennsylvania Rule of Civil Procedure 1035.2, reproved the trial court for considering a motion for summary judgment on the day of trial. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1281 n.2 (Pa. Super. 2001). The court’s admonition, however, seemed to overlook that the parties had agreed to reconsideration of Appellees’ motion and consideration of Gulph Mills’s cross-motion. R. 8a-14a. Indeed, the motions presented a pure question of law that would avoid the time and expense of trial if Gulph Mills prevailed, which, ultimately, it did.
6 Act of July 3, 1985, P.L. 164, No. 45, § 1, as amended, 35 P.S. §§ 6921- 6938.
[***5] Appellees filed a timely appeal to the Superior Court, which reversed the trial court’s order granting summary judgment. See Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, [*585] 1281 n.2 (Pa. Super. 2001). The court opined that the trial court’s reliance on the EMS Act was inappropriate because it was designed for and aimed at the administration of emergency services by trained and licensed professionals. As the EMS Act did not contain any provision addressing emergency actions by untrained lay persons, i.e., Gulph Mills’s employees, the court concluded that the trial court’s grant of summary judgment could not be supported by reference to the EMS Act or its implementing regulations.
The court also addressed the effect of 42 Pa.C.S. § 8331.2, hereinafter the “AED Good Samaritan Act,” which provides “Good Samaritan civil immunity” for use of an AED in certain instances. It specifically provides immunity for untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Although the [***6] AED Good Samaritan Act was enacted after Atcovitz’s injuries, the court found that its passage evinced the Legislature’s desire that use of AEDs not be restricted solely to trained professionals. Accordingly, the court held that the trial court erred as a matter of law in granting Gulph Mills’s motion for summary judgment. See Atcovitz, 766 A.2d at 1282. Subsequently, Gulph Mills petitioned this Court for allowance of appeal, which we granted. See Atcovitz v. Gulph Mills Tennis Club, Inc., 566 Pa. 656, 782 A.2d 541 (Pa. 2001) (table).
[HN2] This Court’s scope of review of an order granting summary judgment is plenary. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118 (Pa. 2000). Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Id. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (Pa. 2001). [***7] [*586] The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Basile, 761 [**1222] A.2d at 1118. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Id. (citing Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (Pa. 1995)).
[HN3] The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant. Orner v. Mallick, 515 Pa. 132, 527 A.2d 521, 523 (Pa. 1987) (citing Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n.5 (Pa. 1983)); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 at 164 (5th ed. 1984). Here, we must focus our analysis on [***8] the threshold element of duty. 7 Only therein may we resolve the fundamental question of whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.
7 Appellees argue that the issue of duty was not considered by the lower courts and, therefore, may not be addressed by this Court. Appellees’ Br. at 4-5 (citing Pa.R.A.P. 302). Instead, Appellees assert that “the sole question under review is whether the law of this Commonwealth, at the time of Mr. Atcovitz’s cardiac arrest in January of 1996, made it illegal for Gulph Mills to have and use an [AED].” Id. at 4 (emphasis in original). Appellees’ characterization of the issue is too narrowly focused. Gulph Mills’s illegality defense is a subsidiary argument of the broader issue of duty, i.e., whether there was no duty because carrying an AED would have been illegal. Thus, the issue properly before this Court’s plenary review remains whether Gulph Mills owed a duty of care to Atcovitz to acquire and maintain an AED on its premises for emergency use.
[***9] [HN4] “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Law of Torts, supra, § 53 at 356. This Court has embraced [*587] an oft-quoted passage articulating the considerations that underlie the concept of common law duty:
These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the [***10] community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”
D. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953) (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting)); Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (Pa. 2000); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (Pa. 1979). Thus, [HN5] the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society. Althaus, [**1223] 756 A.2d at 1169 (citing Gardner v. Consolidated Rail Corp., 524 Pa. 445, 573 A.2d 1016, 1020 (Pa. 1990)).
In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance [HN6] in determining whether a common law duty of care exists: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability [***11] of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 756 A.2d at 1169. [*588] Within this construct, we must resolve whether Gulph Mills owed a duty to Atcovitz to acquire and maintain an AED.
Here, our analysis turns upon the fifth Althaus factor, i.e., the overall public interest in the proposed solution. The Legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.
Looking first to the EMS Act, the Legislature aspired [HN7] “to assure readily available and coordinated emergency medical services of the highest quality to the people of Pennsylvania.” 35 P.S. § 6922(a). To accomplish this purpose, the Secretary of Health is required [HN8] “to plan, guide, assist and coordinate the development of areawide emergency medical services systems into a unified Statewide [***12] system and to coordinate the system with similar systems in neighboring states.” 35 P.S. § 6925(a). For that reason, [HN9] the Department of Health has adopted comprehensive regulations implementing the provisions of the EMS Act, including regulations establishing the qualifications, duties, and certification procedures for those involved in providing emergency medical services. See 28 Pa. Code §§ 1001.1- 1015.2. Similar to the EMS Act, the stated purpose of the regulations [HN10] “is to plan, guide, assist and coordinate the development of regional EMS systems into a unified Statewide system and to coordinate the system with similar systems in neighboring states, and to otherwise implement the Department’s responsibilities under the act consistent with the Department’s rulemaking authority.” Id. at § 1001.1.
To achieve these goals, the EMS Act and its implementing regulations explicitly classify and identify the capacities, training requirements, and qualifications of individuals who are authorized to deliver emergency medical services. See, e.g., 35 P.S. § 6931 (delineating [***13] emergency medical services personnel). Although the Superior Court’s observation [*589] that the EMS Act and its regulations do not specifically refer to the use of AEDs by untrained individuals is correct, we do not agree with the court’s conclusion that the EMS Act and its regulations are irrelevant to the issue of whether Gulph Mills had a duty to use an AED on its premises. Rather, they are relevant to demonstrate that the acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Indeed, the implication of the Legislature’s exclusion of untrained laypersons from the EMS Act and its regulations is to preclude unqualified and untrained individuals from administering emergency medical services using an AED. We must infer that, [HN11] under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters. Pane v. Commonwealth, Dep’t of Highways, 422 Pa. 489, 222 A.2d 913, 915 (Pa. 1966) (citing Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824, 832 (Pa. 1962)). It [**1224] would be absurd for the governmental system charged with rendering [***14] effective emergency medical care to hinder the delivery of that care using AEDs through the system, while ordinary citizens would be duty-bound to acquire, maintain, and use AEDs free from any regulation by the Department of Health.
Likewise, the Superior Court also misconstrued the AED Good Samaritan Act as evincing the Legislature’s intention that the EMS Act should not restrict the use of AEDs to trained professionals. The AED Good Samaritan Act, which was adopted two years after Atcovitz sustained his injuries, provides civil immunity for trained users of AEDs and requires that [HN12] “expected users shall complete training in the use of an AED. . . .” 42 Pa.C.S. §§ 8331.2(a), (c). [HN13] As an exception to that general rule, the AED Good Samaritan Act also provides civil immunity to untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Significantly, the AED Good Samaritan Act defines [HN14] “good faith” as including “a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed [***15] until emergency [*590] medical services personnel arrive or the person is hospitalized.” Id. at § 8331.2(f).
Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual. Indeed, the exception expresses that personnel under the EMS Act are the preferred users of AEDs: it applies only to instances where emergency medical services personnel are unavailable. In addition, it does not indicate that the Legislature aimed to dispense with the regulations governing the training and use of AEDs. Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to acquire, maintain, and use such a device on its premises. 8
8 Even if the AED Good Samaritan Act imposed a duty upon Gulph Mills to carry an AED, it would not control this case. The Legislature did not adopt it until two years after Atcovitz sustained his injuries
[***16] Neither the EMS Act nor the AED Good Samaritan Act imposed a duty upon Gulph Mills to acquire, maintain, and use an AED. Appellees do not cite any other case, statute, or regulation that would have imposed such a duty on Gulph Mills at the time of Atcovitz’s injuries in January 1996. Because Gulph Mills did not owe a duty to carry an AED, Appellees could not have established a prima facie claim of negligence. See Orner, 515 Pa. 132, 527 A.2d 521. Thus, there was no genuine issue of material fact and Gulph Mills was entitled to judgment as a matter of law. See Basile, 563 Pa. 359, 761 A.2d 1115. We reverse the order of the Superior Court and affirm the trial court’s grant of summary judgment in favor of Gulph Mills.
Mr. Justice Cappy files a concurring opinion.
Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.
CONCUR BY: CAPPY
MR. JUSTICE CAPPY
I join the majority opinion to the extent that it holds that we must balance the factors in Althaus ex rel. Althaus v. [*591] Cohen, 562 Pa. 547, 756 A.2d 1166 (Pa. 2000). After evaluating all five factors, I agree [***17] that no duty exists here.
DISSENT BY: NIGRO
[**1225] DISSENTING OPINION
MR. JUSTICE NIGRO
While I do not necessarily disagree with the majority’s conclusion that a tennis club does not owe a duty to its members to acquire and maintain an automated external defibrillator (“AED”) on its premises for emergency use, that issue is not before us here. The only issue that the Superior Court considered below was whether the Emergency Medical Services Act, 35 Pa.C.S. §§ 6921- 6938, and the Department of Health regulations promulgated pursuant to that Act specifically prohibited Appellants from using an AED. Concluding that they did not, the Superior Court reversed the trial court’s entry of summary judgment in favor of Appellants on the basis of those authorities. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1282 (Pa. Super. 2001) (“Although we make no finding on the ultimate merits of [plaintiffs’] claim, we find that the trial court erred as a matter of law in granting [defendant’s] motion for summary judgment on the basis of the statutes and regulations cited.”) As I agree [***18] with the Superior Court’s conclusion in that regard, I would affirm the Superior Court’s order and remand the case to the trial court to consider in the first instance whether there is any basis on which to conclude that Appellants owed a duty to Appellees.
Mr. Justice Saylor joins the dissenting opinion.
Colorado has a new Epinephrine law allowing most outdoor programs the ability to stock and administer epinephrine without criminal liabilityPosted: May 27, 2015
That means recreation camps, colleges and universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment, ski areas, and sports arenas can carry epinephrine.
NOTE: The governor signed this measure on 5/14/2015.
HOUSE BILL 15-1232
BY REPRESENTATIVE(S) Ginal and Landgraf, Buckner, Esgar, Fields, Mitsch Bush, Pettersen, Primavera, Rosenthal, Ryden, Salazar, Tyler, Vigil, Williams, Young, Hullinghorst; also SENATOR(S) Todd and Martinez Humenik, Kefalas, Kerr, Newell.
CONCERNING THE EMERGENCY USE OF EPINEPHRINE AUTO–INJECTORS BY AUTHORIZED ENTITIES, AND, IN CONNECTION THEREWITH, MAKING AN APPROPRIATION.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, add article 47 to title 25 as follows:
ARTICLE 47 Use of Epinephrine Injectors by Authorized Entities
25-47-101. Definitions. AS USED IN THIS ARTICLE:
(1) “ADMINISTER“ MEANS TO DIRECTLY APPLY AN EPINEPHRINE AUTO–INJECTOR TO THE BODY OF AN INDIVIDUAL.
(2) “AUTHORIZED ENTITY“ MEANS AN ENTITY OR ORGANIZATION, OTHER THAN A SCHOOL DESCRIBED IN SECTION 22-1-119.5, C.R.S., OR A HOSPITAL LICENSED OR CERTIFIED PURSUANT TO SECTION 25-1.5-103 (1) (a)
(I) (A) OR 25-1.5-103 (1) (a) (II), AT WHICH ALLERGENS CAPABLE OF CAUSING ANAPHYLAXIS MAY BE PRESENT. THE TERM INCLUDES BUT IS NOT LIMITED TO RECREATION CAMPS, COLLEGES AND UNIVERSITIES, DAY CARE FACILITIES, YOUTH SPORTS LEAGUES, AMUSEMENT PARKS, RESTAURANTS, PLACES OF EMPLOYMENT, SKI AREAS, AND SPORTS ARENAS.
(3) “EMERGENCY PUBLIC ACCESS STATION“ OR “EPAS” MEANS A LOCKED, SECURE CONTAINER USED TO STORE EPINEPHRINE AUTO–INJECTORS FOR USE UNDER THE GENERAL OVERSIGHT OF A MEDICAL PROFESSIONAL, WHICH ALLOWS A LAY RESCUER TO CONSULT WITH A MEDICAL PROFESSIONAL IN REAL TIME BY AUDIO, TELEVIDEO, OR OTHER SIMILAR MEANS OF ELECTRONIC COMMUNICATION. UPON AUTHORIZATION OF THE CONSULTING MEDICAL PROFESSIONAL, AN EPAS MAY BE UNLOCKED TO MAKE AN EPINEPHRINE AUTO–INJECTOR AVAILABLE.
(4) “EPINEPHRINE AUTO–INJECTOR“ MEANS A SINGLE–USE DEVICE USED FOR THE AUTOMATIC INJECTION OF A PREMEASURED DOSE OF EPINEPHRINE INTO THE HUMAN BODY.
(5) “HEALTH CARE PRACTITIONER“ MEANS A PERSON AUTHORIZED BY LAW TO PRESCRIBE ANY DRUG OR DEVICE, ACTING WITHIN THE SCOPE OF HIS OR HER AUTHORITY.
(6) “MEDICAL PROFESSIONAL” MEANS A PHYSICIAN OR OTHER PERSON AUTHORIZED BY APPLICABLE LAW TO PRESCRIBE DRUGS IN THIS STATE OR ANOTHER STATE.
(7) “PHARMACIST“ HAS THE MEANING SET FORTH IN SECTION 12-42.5-102 (28), C.R.S.
(8) “PROVIDE“ MEANS TO SUPPLY ONE OR MORE EPINEPHRINE AUTO–INJECTORS TO AN INDIVIDUAL.
25-47-102. Stock supply of epinephrine auto-injectors emergency administration. (1) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY:
(a) Prescribing to an authorized entity permitted. A HEALTH
CARE PRACTITIONER MAY DIRECT THE DISTRIBUTION OF EPINEPHRINE AUTO–INJECTORS FROM AN IN–STATE PRESCRIPTION DRUG OUTLET TO AN AUTHORIZED ENTITY FOR USE IN ACCORDANCE WITH THIS ARTICLE, AND HEALTH CARE PRACTITIONERS MAY DISTRIBUTE EPINEPHRINE AUTO–INJECTORS TO AN AUTHORIZED ENTITY; AND
(b) Authorized entities permitted to maintain supply. AN AUTHORIZED ENTITY MAY ACQUIRE AND STOCK A SUPPLY OF EPINEPHRINE AUTO–INJECTORS PURSUANT TO A PRESCRIPTION ISSUED IN ACCORDANCE WITH THIS SECTION.
(2) EPINEPHRINE AUTO–INJECTORS MUST BE STORED:
(a) IN A LOCATION THAT WILL BE READILY ACCESSIBLE IN AN EMERGENCY;
(b) ACCORDING TO THE APPLICABLE INSTRUCTIONS FOR USE; AND
(c) IN COMPLIANCE WITH ANY ADDITIONAL REQUIREMENTS THAT MAY BE ESTABLISHED BY THE DEPARTMENT OF HEALTH.
(3) AN AUTHORIZED ENTITY SHALL DESIGNATE EMPLOYEES OR AGENTS WHO HAVE COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 TO BE RESPONSIBLE FOR THE STORAGE, MAINTENANCE,CONTROL, AND GENERAL OVERSIGHT OF EPINEPHRINE AUTO–INJECTORS ACQUIRED BY THE AUTHORIZED ENTITY.
25-47-103. Use of epinephrine auto-injectors. (1) AN EMPLOYEE OR AGENT OF AN AUTHORIZED ENTITY OR OTHER INDIVIDUAL WHO HAS COMPLETED THE TRAINING REQUIRED BY SECTION 25-47-104 MAY USE EPINEPHRINE AUTO–INJECTORS PRESCRIBED PURSUANT TO SECTION 25-47-102 TO PROVIDE OR ADMINISTER AN EPINEPHRINE AUTO–INJECTOR TO ANY INDIVIDUAL WHO THE EMPLOYEE, AGENT, OR OTHER INDIVIDUAL BELIEVES IN GOOD FAITH IS EXPERIENCING ANAPHYLAXIS, REGARDLESS OF WHETHER THE INDIVIDUAL HAS A PRESCRIPTION FOR AN EPINEPHRINE AUTO–INJECTOR OR HAS PREVIOUSLY BEEN DIAGNOSED WITH AN ALLERGY, OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL; AND
(2) THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR IN ACCORDANCE WITH THIS SECTION IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.
25-47-104. Training. (1) AN EMPLOYEE, AGENT, OR OTHER INDIVIDUAL MUST COMPLETE AN ANAPHYLAXIS TRAINING PROGRAM BEFORE USING AN EPINEPHRINE AUTO–INJECTOR. THE TRAINING MUST BE CONDUCTED BY A NATIONALLY RECOGNIZED ORGANIZATION EXPERIENCED IN TRAINING LAYPERSONS IN EMERGENCY HEALTH TREATMENT OR BY AN INDIVIDUAL OR ENTITY APPROVED BY THE DEPARTMENT OF HEALTH. THE DEPARTMENT OF HEALTH MAY APPROVE SPECIFIC ENTITIES OR INDIVIDUALS TO CONDUCT TRAINING OR MAY APPROVE SPECIFIC CLASSES BY INDIVIDUALS OR ENTITIES. THE TRAINING MAY BE CONDUCTED ON–LINE OR IN–PERSON AND, AT A MINIMUM, MUST COVER:
(a) HOW TO RECOGNIZE THE SIGNS AND SYMPTOMS OF SEVERE ALLERGIC REACTIONS, INCLUDING ANAPHYLAXIS;
(b) THE STANDARDS AND PROCEDURES FOR THE STORAGE AND ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR; AND
(c) EMERGENCY FOLLOW–UP PROCEDURES.
(2) THE INDIVIDUAL OR ENTITY THAT CONDUCTS THE ANAPHYLAXIS TRAINING PROGRAM SHALL ISSUE A CERTIFICATE, ON A FORM DEVELOPED OR APPROVED BY THE DEPARTMENT OF HEALTH, TO EACH PERSON WHO SUCCESSFULLY COMPLETES THE ANAPHYLAXIS TRAINING PROGRAM.
25-47-105. Reporting. AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS SHALL SUBMIT TO THE DEPARTMENT OF HEALTH, ON A FORM DEVELOPED BY THE DEPARTMENT OF HEALTH, A REPORT OF EACH INCIDENT ON THE AUTHORIZED ENTITY‘S PREMISES THAT INVOLVES THE ADMINISTRATION OF AN EPINEPHRINE AUTO–INJECTOR PURSUANT TO SECTION 25-47-103. THE DEPARTMENT OF HEALTH SHALL ANNUALLY PUBLISH A REPORT THAT SUMMARIZES AND ANALYZES ALL REPORTS SUBMITTED TO IT UNDER THIS SECTION.
25-47-106. Emergency public access stations – life-saving allergy medication. (1) NOTWITHSTANDING ANY LAW TO THE CONTRARY:
(a) A MEDICAL PROFESSIONAL MAY PRESCRIBE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS TO ANY AUTHORIZED ENTITY FOR STORAGE IN AN EPAS, AND MAY PLACE A STOCK SUPPLY OF EPINEPHRINE AUTO–INJECTORS IN AN EPAS MAINTAINED BY AN AUTHORIZED ENTITY;
(b) A MEDICAL PROFESSIONAL MAY CONSULT THE USER OF AN EPAS AND MAKE THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; AND
(c) ANY PERSON MAY USE AN EPAS TO ADMINISTER OR PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO AN INDIVIDUAL BELIEVED IN GOOD FAITH TO BE EXPERIENCING ANAPHYLAXIS OR TO PROVIDE AN EPINEPHRINE AUTO–INJECTOR TO A FAMILY MEMBER, FRIEND, COLLEAGUE, CAREGIVER, OR PERSON WITH A SIMILAR RELATIONSHIP WITH THE INDIVIDUAL.
(2) THE USE OF AN EPAS IN ACCORDANCE WITH THIS ARTICLE IS NEITHER THE PRACTICE OF MEDICINE NOR OF ANY OTHER PROFESSION THAT REQUIRES LICENSURE.
25-47-107. Good samaritan protections – liability. (1) THE FOLLOWING INDIVIDUALS AND ENTITIES ARE IMMUNE FROM CRIMINAL LIABILITY AND FROM SUIT IN ANY CIVIL ACTION BROUGHT BY ANY PERSON FOR INJURIES OR RELATED DAMAGES THAT RESULT FROM AN ACT OR OMISSION TAKEN PURSUANT TO THIS ARTICLE:
(a) AN AUTHORIZED ENTITY THAT POSSESSES AND MAKES AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;
(b) AN AUTHORIZED ENTITY THAT DOES NOT POSSESS OR MAKE AVAILABLE EPINEPHRINE AUTO–INJECTORS OR AN EPAS AND THE ENTITY‘S EMPLOYEES, AGENTS, AND OTHER INDIVIDUALS;
(c) AN INDIVIDUAL OR ENTITY THAT CONDUCTS AN ANAPHYLAXIS TRAINING PROGRAM;
(d) AN INDIVIDUAL WHO PRESCRIBES OR DISPENSES AN EPINEPHRINE AUTO–INJECTOR;
(e) AN INDIVIDUAL WHO ADMINISTERS OR PROVIDES AN EPINEPHRINE AUTO–INJECTOR;
(f) A MEDICAL PROFESSIONAL WHO CONSULTS THE USER OF AN EPAS AND MAKES THE EPINEPHRINE AUTO–INJECTORS STORED IN THE EPAS AVAILABLE TO THE USER; OR
(g) AN INDIVIDUAL WHO USES AN EPAS.
(2) IMMUNITY UNDER SUBSECTION (1) OF THIS SECTION DOES NOT APPLY TO ACTS OR OMISSIONS THAT ARE GROSSLY NEGLIGENT OR WILLFUL AND WANTON.
(3) THIS SECTION DOES NOT ELIMINATE, LIMIT, OR REDUCE ANY OTHER IMMUNITY OR DEFENSE THAT MAY BE AVAILABLE UNDER STATE LAW, INCLUDING THE PROTECTIONS SET FORTH IN SECTION 13-21-108, C.R.S. PROVIDING OR ADMINISTERING AN EPINEPHRINE AUTO–INJECTOR BY AN ENTITY OR INDIVIDUAL IS DEEMED EMERGENCY CARE OR EMERGENCY ASSISTANCE FOR PURPOSES OF SECTION 13-21-108, C.R.S.
(4) AN AUTHORIZED ENTITY LOCATED IN THIS STATE THAT PROVIDES OR ADMINISTERS AN EPINEPHRINE AUTO–INJECTOR OUTSIDE OF THIS STATE IS NOT LIABLE FOR ANY RESULTING INJURIES OR RELATED DAMAGES IF THE AUTHORIZED ENTITY:
(a) WOULD NOT BE LIABLE FOR THE INJURIES OR RELATED DAMAGES IF THE EPINEPHRINE AUTO–INJECTOR HAD BEEN PROVIDED OR ADMINISTERED IN THIS STATE; OR
(b) IS NOT LIABLE FOR INJURIES OR RELATED DAMAGES UNDER THE LAW OF THE STATE WHERE THE AUTHORIZED ENTITY PROVIDED OR ADMINISTERED THE EPINEPHRINE AUTO–INJECTOR.
25-47-108. Health care professionals – hospitals – obligations under state and federal law. NOTHING IN THIS ARTICLE LIMITS THE OBLIGATIONS OF A HEALTH CARE PROFESSIONAL OR HOSPITAL UNDER STATE OR FEDERAL LAW IN PRESCRIBING, STORING, OR ADMINISTERING DRUGS OR DEVICES.
SECTION 2. In Colorado Revised Statutes, 12-36-117, amend
(1.8) as follows:
12-36-117. Unprofessional conduct. (1.8) A licensee shall IS not be subject to disciplinary action by the board for issuing standing orders and protocols regarding the use of epinephrine auto-injectors in a public or nonpublic school in accordance with the requirements of section 22-1-119.5, C.R.S., or for the actions taken by a school nurse or by any designated school personnel who administer epinephrine auto-injectors in accordance with the requirements of section 22-1-119.5, C.R.S., OR FOR PRESCRIBING EPINEPHRINE AUTO–INJECTORS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.
SECTION 3. In Colorado Revised Statutes, 12-38-125, add (1) (o) as follows:
12-38-125. Exclusions. (1) No provision of this article shall be construed to prohibit:
(o) A PRESCRIPTION BY AN ADVANCED PRACTICE NURSE WITH PRESCRIPTIVE AUTHORITY FOR THE USE OF EPINEPHRINE AUTO–INJECTORS BY AN AUTHORIZED ENTITY IN ACCORDANCE WITH ARTICLE 47 OF TITLE 25,
SECTION 4. In Colorado Revised Statutes, 12-42.5-102, amend
(42) (b) (XV) as follows:
12-42.5-102. Definitions. As used in this article, unless the context otherwise requires or the term is otherwise defined in another part of this article:
(42) (b) “Wholesale distribution” does not include:
(XV) The distribution, donation, or sale by a manufacturer or wholesaler of a stock supply of epinephrine auto-injectors to public schools or nonpublic schools for emergency use by designated school personnel in accordance with the requirements of section 22-1-119.5, C.R.S., OR TO OTHER ENTITIES FOR EMERGENCY USE IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 47 OF TITLE 25, C.R.S.
SECTION 5. Appropriation. For the 2015-16 state fiscal year, $23,736 is appropriated to the department of public health and environment for use by the disease control and environmental epidemiology division.
This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.4 FTE. To implement this act, the division may use this appropriation for costs to implement this act.
SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss
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