Not a final decision, but I believe an indication of where the law of AED’s is heading however the basis for the decision is nuts!

Miglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478

Calling 911 according to this court is starting a rescue which creates liability for failing to complete the rescue!

This case was appealed and upheld in Miglino, Jr., v Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342; 985 N.E.2d 128; 961 N.Y.S.2d 364; 2013 N.Y. LEXIS 111; 2013 NY Slip Op 780.

There are a lot of motions, trial and appeals to go in this case before you could rely on this decision. However it is indicative of where the law is probably heading. If the statute requires you to have an AED (Automatic External Defibrillator) at your facility, you may be liable if you do not use it.

In this case, the deceased was playing racquet ball when he suffered a heart attack. An employee of the health club where he worked called 911 and went to his side with an AED. The employee left for an unknown reason and came back. When he left the deceased was still breathing. When he came back, a physician was attending the deceased.

At no time did the health club employee use the AED. The family of the deceased sued the health club. The allegations were that since the New York statute (General Business Law § 627-a) mandated the health club have an AED, then it was negligence not to use the AED. Whether or not the AED would have helped has seemed to have escaped the confines of the litigation.

The defendants moved to dismiss for failure to state a claim upon which relief can be granted. This means the allegations in the complaint of the plaintiff do not meet the minimum requirements to state a legal claim under the law and therefore the plaintiff’s case should be dismissed.

The legal basis of the motion was the statute did not require the use of the AED and any use of the AED was protected by the AED Good Samaritan Act, (Public Health Law § 3000-a). The motion of the defendants was denied and the defendants appealed that denial.

So? Summary of the case

First the appellate court looked at the statute requiring health clubs to have AEDs and employees trained in how to use the AED’s.

General Business Law § 627-a: automated external defibrillator requirements:

1. Every health club [with more than 500 members] shall have . . . at least one [AED], and shall have in attendance, at all times during staffed business hours, at least one individual performing employment . . . who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of cardiopulmonary resuscitation provided by a nationally recognized organization or association.

The court also looked at the AED Good Samaritan law.

“3. Pursuant to [Public Health Law §§ 3000-a and 3000-b], any public access defibrillation provider, or any employee . . . of the provider who, in accordance with . . . this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant to [Public Health Law § 3000-a].

The court stated the purpose of the statute was to save lives and therefore the health clubs were required to use the AEDs. “Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?”

A basic axiom in US law has always been there is no duty to rescue unless you placed the victim in the peril from which he needs rescued. By that, you can come across someone who is in need of help and you have no legal obligation to help.

Once you start to help though, you cannot leave the victim at that point. Once you start first aid, you cannot abandon the victim unless higher medical care arrives on the scene.

The court found the health club employee had started to rescue the deceased when he “directed that a 911 emergency call be made, sought medical assistance within the club, and took the decedent’s pulse.”

All three of the things the employee did were marginally, if at all, a rescue or first aid. If directing someone to call 911 constitutes starting a rescue, don’t expect me to pick up the phone if you are dying or tell someone else to call.

The court continues this stretch into the wild blue yonder with this statement. Since the health club employee was trained in the use of the AED, “his failure to use the device was tantamount to not acting carefully.”

Negligence can be proved for acting or in some cases for failing to act. However the failure to act had to have been predicated upon a duty to act that was more than speculation or hypothetical. Here the court has taken the fact that training now requires you to act on that training or you are liable. How far will this court go to hold someone liable for the bad luck in dying one day?

·        I am trained to provide first aid, yet I do not have the proper equipment, am I now liable when I cannot help the person so I do not help the person?

·        You are bleeding but I have no gloves or blood borne pathogen protection, even though I’ve been trained to stop your bleeding. Am I now liable for placing my family’s and my health above that of a stranger?

·        You are dying in the middle of a gun fight. I am safe and you are still surrounding by bullets, am I liable for not running out in the street to safe you when my training might assist you? Am I now required to risk my life because I have the training to save yours?

This seems like a stretch; however I don’t see these examples as any greater stretches than where the court has gone in this case.

The court found that because this was a preliminary motion that there may be enough information to keep the plaintiff’s claims alive, not matter how far this court had to stretch to do so.

So Now What?

The only thing this court has done for sure is scare people away from calling 911 when they see someone in trouble. Look at the liability of an elderly person with no physical ability and no training being held liable for the injuries of someone when all they did was call 911. They have no other skill set to assist someone in need, yet according to this court, calling 911 is the same as performing first aid.

My analysis, the standard of care on having and using AED’s is changing to one of if you have it by statute you must use it by law. First there are several issues that have not been discussed in this case that would eliminate any liability of the defendants.

1.       A physician is the senior medical person on the scene it is probably illegal for the health club employee to perform any medical care while the physician is in attendance.

2.      Would the AED have done anything?

3.      Is taking a pulse or calling for help rescue?

4.      If there was a pulse, does that not eliminate the need for the AED?

If this case continues on its present track, I think if you live in New York there are a few things you need to do.

1.       Go back to the legislature to define performing medical assistance to not include calling 911 or directing someone to call 911.

2.      Go back to the NY legislature and include in the Good Samaritan act that directing someone to get help does not create liability on your part from an injured third party.

And probably put an AED in your business, learn how to use it and use it.

What do you think? Leave a comment.

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