Indiana Equine Liability Statute used to stop litigation

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.

In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.

The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.

The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.

Summary of the case

The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.

The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.

34-31-5-3.  Warning notices required.

(a)        This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.

(b)        A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.

(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.

The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.

The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one  thing’s horses do is kick; number two is bite and number three throw  you off; This from a person who has been kicked, bitten and thrown off horses.)

The court found the plaintiff was injured by an inherent risk of hanging around horses.

The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.

So Now What?

The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.

Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.

The second issue is always having extra statutorily required warning signs, posting them wherever  there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.

Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.

Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.

Plaintiff: Teresa Perry

 

Defendant: Whitley County 4-H Clubs Inc.

 

Plaintiff Claims: Negligence

 

Defendant Defenses: Indiana Equine Liability Statute

 

Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss  

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Wilderness Medical Society 2013 CME Conferences

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wms_logo.jpgContinuing Medical Education Conferences

Leading the Worldwide Community of Wilderness Medicine

Dear James,We hope to see you at one of our upcoming CME conferences!

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30th Anniversary Conference and Annual Meeting

July 12-17, 2013
Breckenridge, Colorado

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The ALL NEW Wilderness Medicine Magazine

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WildernessMedicineMagazine.com is the new repository of the best writing, graphics and audiovisual pieces available in wilderness medicine today. Embracing modern web technology, we will continuously bring you a dynamic, multimedia experience.

More content, more authors and more technologies, including abundant hyperlinks, videos, graphics and content-rich material make this site the go-to location for entertaining, interesting and cutting edge information.

As it is a constantly evolving web-based magazine, we suggest you check the site often for new articles and announcements.
Subscription tools are being developed that will allow you to be notified when new content of interest is posted. We are open to your suggestions for ways it can be even more functional and useful for you. Also please don’t hesitate to contact us if you’d like to contribute content. You can email the Executive Editor Seth Hawkins directly or refer to the “Submission Guidelines” link on the site.

Thanks for your support from the entire Magazine Committee of the Wilderness Medical Society.

Jonna Barry, Editorial Director

Seth C. Hawkins, MD, FAWM, Executive Editor
Debra Stoner, MD, FAWM, Senior Editor
Nancy Pietroski, PharmD, Associate Editor
Sam Schimelpfenig, MD, Associate Editor
Larry E. Johnson, MD, Assistant Editor

Jim Ingwersen, Web Developer

Visit Wilderness Medicine Magazine NOW!

Wilderness Medical Society Trailblazer, April 2012

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Leading the worldwide community of Wilderness Medicine

Trailblazer – April 2012
What’s New

World Congress on Wilderness Medicineguide1c.jpgJuly 13-17, 2012Whistler, BC, Canada
Wilderness Medicine Magazine Vol. 29.2—Spring 2012

Check it out!

Featuring Burning Man Medicine, Indo-Pacific Lionfish Update, Q&A with Dr. Bill Forgey, and Pemmican – the Backpacker’s Greasy Friend!

Academy of Wilderness Medicine

The Academy of Wilderness Medicine has announced the Fellow Advancement Recognition or FAR program. Fellows in the Academy of Wilderness Medicine are encouraged to advance their FAWM status. In addition to offering the Master Fellow program, the WMS recognizes the continued accumulation of core and elective credits after a member has become a Fellow. Awards will be presented to those Fellows who have been awarded the required levels of post-FAWM credits as displayed below. The Credit Status report can be used to display your current credit summary. See the April edition of Wilderness Medicine magazine for more information.

New to the Eductional Presentation Series: Tick-Borne Illnesses

A new Educational Lecture has been added to our peerless series: Tick-borne Illnesses by Gillian A. Beauchamp, MD and Edward J. Otten, M.D., FACMT, FAWM. You can order this lecture separately or as part of the entire series.

2011 WMS Recognition Awards—Call for Nominations

The WMS Awards Committee, chaired by Dr. Ken Zafren, invites you send your suggestions for nominees of members and non-members who you believe are worthy of the Society’s recognition. The winners will be honored at the 2012 World Congress in Whistler, British Columbia. The award categories are listed below:

Blair Erb World Congress International Award*
Warren D. Bowman Award
Education Award
Founders Award
Research Award
Dian Simpkins Service Award

The Awards Committee will give full consideration to all those named. In support of your nomination please include: Your name, member number, and contact information; award for which you are nominating him/her; full name and contact information of nominee; awards, recognition, degrees; experience, accomplishments, and memberships; your personal support statement.

Email your nomination(s) with supporting information to Dr. Ken Zafren: zafren by April 18, 2012. We look forward to your participation in helping the WMS to award our worthy colleagues with these honors.
*Full description of the Awards can be reviewed in the Spring edition Wilderness Medicine magazine.

Board of Directors – Call for Nominations

A call for nominations to the WMS Board of Directors is currently ongoing. Interested persons can contact Dr. Colin Grissom at colin.grissom by May 1, 2012. The list of responsibilities is enumerated in the April issue of Wilderness Medicine magazine.

Research Grants – We have our winners!

Houston Grant
“Genetic Influences Underlying Skeletal Adaptation to Altitude”
Kevin Michael Train, MS1
Morgantown, WV

Research in Training
“Pediatric traumatic brain injury associated with alpine ski and snowboard falls: Epidemiology, helmet use, and outcomes, 2003-2009”
Janessa M. Graves, PhD MPH
Seattle, WA

Hultgren
“Acetazolamide for the prevention of high altitude illness: a comparison of dosing”
Scott McIntosh, MD
Salt Lake City, UT

Don’t Miss
Wilderness & Environmental Medicine Journal

Wilderness & Environmental Medicine Journal Vol. 23.1 available online to members now! Log in as a member to access your online journal. Three excellent articles have been chosen for the “CME” articles for this issue. Be sure to read the articles and take the quiz to receive your CMEs for this issue. Non-members can go to wemjournal.org to access the Editor’s Choice (free) article on “Recognizing Dangerous Snakes in the United States and Canada: A Novel 3-Step Identification Method.”

6th International Conference on Wilderness Medicine

Wilderness knows no boundaries and the Wilderness Medical Society’s program of a quadrennial World Congress to review the status of Wilderness Medicine activities around the world continues this year in Whistler, BC, Canada, July 13-17, 2012. From its humble beginnings as a fishing lodge in 1914, to being center stage for the 2010 Olympic and Paralympic Winter Games — Whistler is an extraordinary place to visit and wonderful destination for adventurous spirits.

The WMS International Congress is unsurpassed in bringing together the best minds in the field of Wilderness Medicine from around the globe. You will not find another conference like the WMS World Congress anywhere, and we hope you will make your plans early to attend this one-of-a-kind meeting. Our four preconference programs include Mountain and Expedition Medicine (DiMM), Disaster and Humanitarian Medicine, Marine Medicine, and Advanced Wilderness Life Support. Registration and program schedule.

Other 2012 Conferences of Note
International World Extreme Medicine Conference

ewm.jpgExpedition & Wilderness Medicine (EWM) is delighted to launch the International World Extreme MedicineConference and EXPO series. This inaugural event, April 15th and 18th 2012, will be held at One Wimpole Street, central London, home of the Royal Society of Medicine. Here’s more information on the conference and the impressive range of speakers.

The Global Emergency Medicine Program at New York-Presbyterian Hospital

globalemergency.jpgThe Global Emergency Medicine Program at New York-Presbyterian Hospital / Weill Cornell Medical College Department of Emergency Medicine is pleased to announce the next Global Health Emergencies Course, aimed at healthcare providers involved in international work. The course will provide participants with the tools and knowledge necessary to engage in high-impact interventions in a variety of global health crises. This state-of-the-art, 2-week course bringing together over 25 experts in public health, policy and programming to engage participant healthcare providers in an exploration of the most critical challengers in global health today: the Global Fund Diseases – Malaria, TB, HIV; trauma; chronic diseases; pandemics; and complex humanitarian emergencies. Details, schedule and registration.

Antarctic Medical Conference

Wilderness Medicine CME coursesAn iconic Antarctic Medical Conference exploring one of the world’s most amazing regions!

Join us from December 7-19, 2012, aboard the National Geographic Explorer, a state-of-the-art expedition ship. The conference will be led Dr. Luanne Freer the Medical Director of Yellowstone National Park; former President of the Wilderness Medical Society; Medical Lead on Mountain Medicine, Nepal and subject of the documentary “Everest ER,” which features her work running the field hospital at Everest Base Camp. The ship will also have its own Expedition Leader, a National Geographic staffer, who will be an expert on this incredible region. To find out more visit Expedition & Wilderness Medicine website.

2013 WMS Conferences
Save the dates for these exciting WMS events!

Medsail.jpgFebruary 2-9, 2013

MedSail – Medicine for Mariners and Safety at Sea
British Virgin Islands

alpine_skiing_02.jpgFebruary 14-21, 2013

Wilderness & Mountain Medicine Conference
The Canyons, Park City, Utah

beaverrun.jpgJuly 11-17, 2013

WMS 30th Anniversary and Wilderness Medicine Conference
Beaver Run Resort, Breckenridge, Colorado

dauphinisland.jpgOctober 30-November 5, 2013Environmental Change & Human Health
Dauphin Island Sea Lab, Dauphin Island, Alabama

Reminders
WMS Member Online Photo Library

An image library has been created for WMS members to share with other members. Images are categorized according to topics (such as Burns, Travel Medicine, Marine Medicine, Animals, Allergies, Plants, to name a few) and should be useful to members preparing presentations. Our photo library is only as extensive as we build it, so we encourage everyone to take some time to upload their favorite photos after filling out a copyright agreement and HIPPA statement.

Keep your member information up-to-date!

Go to your Member Profile page and make sure everything is current.

Research – You Can Make a Difference

The WMS has a long history of fostering awareness and appreciation among healthcare professionals and scientists for the research of health-related concerns in outdoor and wilderness activities. In 2010, we introduced a new grant directed and humanitarian and disaster response efforts. Our Research Grant Awards have been helping fulfill our mission “To advance healthcare, research, and education related to wilderness medicine” for many years. Even during economic downturns and a sluggish economy our our Board of Directors believes it is incumbent on us as a Society to encourage this work.

  • The Charles S. Houston Award is for medical students and the Research-in-Training Award is for residents and fellows of an accredited graduate medical education program or doctoral candidates working towards a PhD.
  • The Herbert N. Hultgren Award is for members of the WMS.
  • The Humanitarian Aid Grant was developed in response to the January 2010 Haitian earthquake in an attempt to support WMS members involved in humanitarian and disaster response efforts. However, the Humanitarian Research Aid Grant applications will be considered for projects worldwide, regardless of country.

The Houston, Research-in-Training and Hultgren Awards are funded by the Society, as well as donations from our members and friends. The Humanitarian Aid Grant is fully funded by your charitable donations. Please consider starting the new year off right with a tax deductible donation to one of these excellent WMS grant programs to assist young researchers and further education and research in wilderness medicine and humanitarian relief. Donate online

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Latest edition of the WMS Wilderness & Environmental Medicine Journal is out.

If you work in the Outdoor Industry, you should be a member of the WMS.

The Articles in the Volume 23, Number 1, Spring 2012 edition of the Wilderness Medical Society (WMS) journal are great!

·         Nifedipine for the Treatment of High Altitude Pulmonary Edema

·         Background Rates of Acute Mountain Sickness-Like Symptoms at Low Altitude in Adolescents Using Lake Louise Score

·         Peripheral Arterial Desaturation is Further Exacerbated by Exercise Adolescents with Acute Mountain Sickness

·         Recombinant Angiotension-Converting Enzyme 2 Suppresses Pulmonary Vasoconstriction in Acute Hypoxia

·         Physiological Bone Responses in the Fingers after More than 10 Years of High-Level Sport Climbing: Analysis of Cortical Parameters

·         Medical Direction of Wilderness and Other Operational Emergency Medical Services Programs

·         Novel Use of a Hemostatic Dressing in the Management of a Bleeding Leech Bite: A Case Report and Review of the Literature

·         Wolf Spider Envenomation

·         Managing Anaphylaxis in a Jungle Environment

·         Increasing Creating Kinase Concentrations at the 161-km Western States Endurance Run

·         Improvised Traction Splints: A Wilderness Medicine Tool or Hindrance?

·         Animal-related Motorcycle Collisions in North Dakota

You are going to get great information by reading the newsletter, website and journal of the WMS. More importantly, I find the information is just as critical in telling you what not to do.

You can become a member of the WMS by going here. Sign up today and learn for the rest of the year.

What do you think? Leave a comment.

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Arizona limited right for parent to waive child’s right to sue

State Seal of Arizona.

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TITLE 12.  COURTS AND CIVIL PROCEEDINGS

CHAPTER 5.  LIMITATIONS OF ACTIONS

ARTICLE 3.  PERSONAL ACTIONS

Go to the Arizona Code Archive Directory

A.R.S. § 12-553 (2011)

§ 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions

   A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:

   1. The person has taken control of the equine from the owner or agent when the injury or death occurs.

   2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.

   3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.

   4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person’s representation of his skills, health and experience with and knowledge of equines.

B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.

C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner’s permission is not liable for injury to or death of the equine or the rider or handler.

D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:

   1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.

   2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

E. As used in this section:

   1. “Equine” means a horse, pony, mule, donkey or ass.

   2. “Release” means a document that a person signs before taking control of an equine from the owner or owner’s agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.

HISTORY: Last year in which legislation affected this section: 1998

NOTES:

Premises Liability

SCOPE OF IMMUNITY.

   This section does not shield stable owners from claims for negligent supervision, which do not involve horseback riding or activities directly relating thereto. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (Ct. App. 1998).

   Grant of summary judgment in favor of the riding stable operator was proper where the document that the rider signed contained sufficient information to have been considered a release; further, this section does not completely deprive injured equine riders of a remedy and thus it does not violate the anti-abrogation clause, Ariz. Const. art. 18, § 6. Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557, 2003 Ariz. App. LEXIS 162 (Ct. App. 2003).

What do you think? Leave a comment.

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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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