It's The Law - On-Site AEDs: Owner Liability vs. Saving Lives

American Heart Association statistics show that sudden cardiac arrest outside of a hospital strikes 350,000 adults per year in the US, resulting in more than 220,000 fatalities. Delays in receiving medical attention contribute significantly to the death toll. The average 10-minute wait for medical assistance in both rural areas and crowded downtowns is often too late.

For each minute without proper medical attention, the chance of survival after SCA drops by almost 10%. In urban settings, traffic congestion and the delays caused by negotiating high-rise buildings lower the overall survival rate to less than 5%. In the gridlock of New York City, that rate drops to an anemic 2%.

The odds improve, however, if an electronic defibrillator is on hand and accessible. SCA is often caused by ventricular fibrillation–when the electrical signals that induce a normal heartbeat go awry. When defibrillation treatment is administered within minutes following SCA, survival rates increase dramatically.

But, in the absence of a hospital setting and medical professionals, is the equipment available and can lay persons be trained to deliver this life-saving treatment in an emergency? And, should owners and managers of properties at which large numbers of people congregate consider having this equipment and trained operators on site? The answer to both questions seems to be a resounding yes.

In recent years, the advent of a smaller, less costly defibrillator known as the automated external defibrillator, coupled with widespread training available for lay rescuers, has resulted in a groundswell of support for public deployment of AEDs. The American Heart Association, American Red Cross and other similar organizations, along with industry and civic groups, have been promoting public access defibrillation, or PAD, programs in a wide-scale effort to reduce the time to defibrillation and improve the SCA survival rate.

The pro-AED case is compelling. Modern AEDs cost less than $3,000, some weigh less then four pounds and operation has been simplified. The device is designed to analyze the victim’s heart rhythm and not issue a shock unless an erratic heartbeat signaling an arrest is recognized. AED training and assistance in creating a PAD program is widely available. AED proponents argue that the equipment, together with training, physician oversight, integration with local EMS systems and proper use, will become as common in buildings as fire extinguishers and fire safety drills. Ultimately, it is said, AED deployment will be viewed as the standard of care that owners will ignore at their own risk.

The real estate industry sits squarely within the sights of this growing movement. Public policy experts view heavily-trafficked properties such as office buildings and shopping malls as the prototypical location at which AEDs should be deployed. While some have responded by purchasing the equipment and instituting a PAD program, many owners have held back over concerns about potential liability surrounding AED use.

Lawmakers have been working to address the liability issue. In 2000, Congress enacted the Cardiac Arrest Survival Act, allowing the Secretary of Health and Human Services to recommend placement of AEDs in federal buildings and providing civil immunity for authorized users under certain conditions. At the state level, many legislatures have enacted or are considering statutes providing some limitation on liability for Good Samaritans using an AED in good faith to save a life.

New York’s Public Health Law provides qualified protection for those who acquire, possess and operate an AED pursuant to a collaborative agreement with an emergency health-care provider. Among other requirements, training must be provided by a nationally recognized organization or the state emergency medical services council. With all conditions met, the law shields from damage claims those who voluntarily (and without expectation of monetary compensation) provide defibrillator treatment at the scene of an emergency. The statute does not, however, relieve the operator from liability for his own negligence, gross negligence or intentional misconduct.

Some argue that the New York law and others like it fall short of adequately protecting the lay AED operator. Further, recently-adopted Good Samaritan laws have yet to be tested fully in the state courts. Thus, the scope of protection afforded to AED users and building owners in New York and other states remains unsettled.

An understanding of existing statutory protections and evolving case law is important in deciding whether or not to adopt a PAD program. The current trend, however, indicates that in future emergencies, building owners relying solely on overworked EMS systems and failing to have an AED on hand may face liabilities. With every minute crucial to the survival of an SCA victim, and the means to save lives readily available, the question for owners and managers may soon be how they can afford not to include AED purchase and training as part of a sound management program.

Mitchell S. Berkey([email protected]) is a partner in the New York City office of Jenkens & Gilchrist Parker Chapin LLP. He concentrates on commercial real estate transactions, disputes and workouts on behalf of owners, managers, lenders and corporate real estate users nationwide. A member of GlobeSt.com’s Think Tank, Berkey has also served as vice president with Merrill Lynch Hubbard’s real estate asset management group.