Defibrillator Liability: Do You Have All the Facts?

Introduction

Sudden cardiac arrest (SCA) strikes over 45,000 Canadians per year. The only proven treatment for SCA victims is early defibrillation. If no defibrillation is administered within ten minutes of the attack, the chances for survival approach zero.

The latest guidelines from the Heart & Stroke Foundation call for lay responders trained in the use of Automated External Defibrillators (AED’s) as well as CPR.

Organizations that implement early defibrillation programs demonstrate a commitment to the advancement of public health and the welfare of their staff and co-workers.

Defibrillator Liability

Defibrillator Liability

As medical technologies go, public access to defibrillation is relatively new and it is not uncommon for people worrying that novel plans may lead to unexpected problems: problems that can land them in court.

The truth is that legal liability risks associated with early defibrillation programs are remote. Liability concerns should not deter those considering the purchase and use of an AED.

Relevant trial court verdicts suggest that organizations that adopt AED programs face a lower liability risk than those that do not. This includes the US states of Florida and California, which have the highest medical litigation rates in North America.

Many provinces also have laws that limit the types and scope of negligence lawsuits permissible against individuals who render emergency medical care including tort limitation, Good Samaritan laws and a variety of immunity laws.

Defibrillator Liability and the Law

Only two US cases on record directly address the issue of early defibrillation by non-healthcare professionals¹, and both complaints alleged negligence for not having an AED available. Because they were both dismissed on technical grounds, neither case offers much guidance on how future appellate courts might address issues surrounding public access defibrillation.

Future trial court cases will likely revolve around society’s view of reasonableness when businesses are faced with ill or injured patrons.

Courts examining notions of reasonableness in other medical contexts have historically resisted requiring businesses faced with ill or injured patrons to do anything more than summon an ambulance. However, the AED legal and regulatory landscape is evolving.

Action (or inaction) that the courts view as reasonable today may be viewed as unreasonable tomorrow.

Advances in AED technology, their relatively low cost and the now proven ability of these devices to save lives may persuade trial and appellate courts to sanction businesses that do not adopt AED programs.²

A Word on Causation

Defibrillator Liability

A successful negligence lawsuit involving defibrillator liability requires proof that the alleged misconduct caused legally recognized damages such as death or injury. That means any case will allege harm through one of three possible causation theories:

  • Failure to purchase and make available an AED
  • Failure to use an available AED
  • Improper use of an available AED

Businesses that do not deploy AEDs at the scene of an SCA are at the greatest risk in terms of proof of causation.

Next in order of risk are those situations in which an AED is available but not used or improperly used. Modern AEDs are both easy to use and difficult to misuse. These systems have been extensively tested in thousands of cases without a single recorded case of accidental shock. Companies that purchase and train their staff to properly use AEDs assume the lowest causation risk.

Left untreated, a sudden cardiac arrest will always kill the victim. A properly used AED can only help. Therefore, proving medical causation of harm in any early defibrillation case would be extremely difficult.

The most likely causation question to be considered is whether death could have been prevented with –not caused by– the availability and use of an AED.

Minimizing Legal Defibrillator Liability

There are a variety of ways to manage the lawsuit liability risks associated with early defibrillation programs:

1. Design a careful program

The development of a detailed plan for having a trained rescuer quickly arrive at the side of an injured or sick person will reduce the stress burden of any responder, and lead to improvements in administering care.

General rules governing negligence cases suggest organizations that implement a plan for their early defibrillation programs face lower legal liability risks than those that do not.

2. Promote Good Samaritan laws

Most provinces have Good Samaritan laws³ that protect individuals from legal liability flowing from the provision of emergency medical care.

A growing number of laws specifically protect responders to medical emergencies from legal liability under certain circumstances. A review of local laws will help determine whether, and to what degree, liability immunity protection exists.

Summary

Certain types of businesses can actually reduce their exposure to claims of negligence by adopting an AED program.

The notion held by many companies that buying and deploying AEDs increases risk is not borne out in the courts. No one in North America who had used an AED to render aid has ever been sued for that deployment. Moreover, liability risks impacting businesses that implement AED programs can be further reduced by Good Samaritan laws.

Having an early defibrillation program is the right thing for business and the lower risk option to not having one.

Iridia can provide any organization with the components for a comprehensive AED Program including acquisition of the AED and its accessories; physician-led training and certification, response planning and oversight; and liaison with health care agencies.

Our experience as pioneers of occupational AED programs, and our passion for universal public access defibrillation put us in a unique position to offer a high-value program.

1 Somes v. United Airlines, [1995]; and Talit v. Northwest Airlines, [1995]
2 Richard A. Lazar, “Understanding AED Program Legal Issues” [White paper], (2007)
3 British Columbia Good Samaritan Act, chapter172, 1996; Ontario Good Samaritan Act, chapter 2, 2001; Quebec Civil Code, article 1471, 1991; Nova Scotia Volunteer Services Act, chapter 497, section 3, 1989
4 Yukon Territory Emergency Medical Aid Act, chapter 70, 2002; Alberta Emergency Medical Aid Act, chapter E-7, 2000; Northwest Territories Emergency Medical Aid Act, chapter E-4, 1988; Saskatchewan Emergency Medical Aid Act, chapter E-8, 1978

AED Programs – Maybe the Lawyers aren’t the Problem?

AED ProgramsAmong the activities we do here at Iridia is the selling of AED’s and the maintaining of defibrillation programs. From time to time, we review some of the common hurdles we run into when we try to set up someone with a new defibrillator.  One of those obstacles is the fear that AED programs increase a company’s exposure to legal liability, so to help with this I did some research and went looking for concrete arguments against carrying defibrillators to examine and refute.

What I found instead was a lot of vague rhetoric of Fear, Uncertainty and Doubt. Oddly enough, a great deal of the FUD surrounding defibrillation programs seems to come from the place where you’d expect to find more substantive advice: corporate legal teams. In the process, I also got a chance to read the waters of the corporate world with regards to altruism.

And, folks, the waters are troubled. Here’s one example.

AED programs

The American Hotel and Lodging Association (AHLA), a US lobbyist group for hotel owners, issued a legal briefing on the ramifications of adopting AED programs. Their advice? Avoid carrying them because hotels that do could be sued for failing to have enough units, putting them in the right places, replacing batteries, maintaining them properly, or training their staff. “This type of exposure is known as the ‘no good deed goes unpunished’ exposure, “the group’s lawyers told its members, “None of those arguments could be made if you had no AED at all.”

First off, this argument is full of holes and the lawyers know that. Or they should, and what they don’t know they could have found out with one phone call. I’ll save that issue for another post except to say this: of the over 350 000 people who die every year from sudden cardiac arrest, of the thousands of AED’s currently deployed throughout North America, no one who applied an AED to help a cardiac arrest victim has ever been sued for it and no patient has ever been unnecessarily shocked with an AED.

What I wanted to look at was this notion that the performance of good deeds somehow leads to a kind of undeserved hardship.

For starters, the AHLA lawyers are right as far as immediate corporate concerns go. AED’s cost money and most businesses are not required by law to carry them. But here’s the thing: people don’t serve the corporations. It’s the other way around. That’s why we invented them. Corporations are beholden only to themselves. Human beings are beholden to one another. Sure, you can try to rationalize the lobbyists’ stance from a liability and legal standpoint, but when there is a cardiac incident, a reckoning will follow. A board of directors may run a corporation; an employer may direct his staff. But even when under the authority of others, our actions belong only to us. Whether it’s with whatever god you believe in, the widow of a dead cardiac arrest victim, or yourself in the bathroom mirror, the eyes that stare back will never accept “I was told not to,” as an excuse for inaction.

A number of corporations will, it appears, need to be dragged into the world of public access early defibrillation. But not all of them, and the pulling won’t be by us at Iridia (at least not entirely).

AED ProgramsAs I researched, I found that people, executives included, want the AED’s. Even if the corporation as a whole sometimes does not. As I spoke with individuals, as I browsed the internet forums and blogs, I kept finding people who think having them is a good idea. I keep finding people who dread thought of someone dying at their workplace and not being able to help. The truth is that your work is not finished when you finalize an AED program. There is a catch: you will have to replace the batteries, maintain your plan and train your staff not because you might be sued, but because your commitment to having an AED will require it. Then one day you may have to use what you’ve prepared. And that action will belong to you too. None of this is a punishment as the AHLA lawyers might have you think. That’s your reward. It’s the underlying truth about any good deed. It leads to another, harder, and better one. But only if you can be strong enough, only if you can stand it.