Author: Ryan O’Connor

Introduction to this Developing Area of Civil Litigation

In 1990, the American Heart Association challenged the medical device industry to develop a state of the art AED capable of being used by virtually anyone. The industry responded in a timely manner, leading to significant advances in AED technology in the last three decades. Manufacturers such as Cardiac Science, Medtronic, Zoll, Hewlett-Packard, and many others have produced lightweight, affordable AEDs for use in a variety of public and private settings.

In an article dated August 5, 1996, the Wall Street Journal stated: “Now, a new wave of small, portable defibrillators is being developed…Manufacturers even envision a day when the devices, technically known as automatic external defibrillators…will be as common as fire extinguishers.” Since this article was published more than twenty years ago, AEDs have become more and more common in gyms, sports facilities, restaurants, airports, and a vast number of other public venues.

It appears that the Wall Street Journal’s prediction was right. With the increasing popularity of these devices, the standard of care has developed to the point that both common law and statutory regulation are beginning to require that AEDs are present in a variety of public places across the United States.

The Medical Problem: Sudden Cardiac Arrest

According to the Sudden Cardiac Arrest Association, sudden cardiac arrest is the leading cause of death in the United States, killing over 320,000 Americans each year.[ii] Sudden cardiac arrest kills more people than breast cancer, lung cancer, and HIV/AIDS combined. Use of an AED device is appropriate when sudden cardiac arrest occurs, which is an electrical malfunction of the heart that triggers a fatally abnormal heart rhythm or a complete stoppage of electrical activity.

A study conducted in 2010 estimated that only 8% of those who suffer an out-of-hospital sudden cardiac arrest will survive the event. However, medical studies indicate that a large percentage of these individuals could be saved by the timely application of an AED to restart the heart. Although there are several different causes and types of electric failure, timely defibrillation will result in saving the victim’s life in a variety of situations.

The Cost of AEDs has Significantly Decreased and AEDs are Easy to Use

Once costing more than $3,000, AEDs now cost as little as a third or less, due to competition in the marketplace and emerging technologies. Because of simple human body diagrams (which are located on the pads to be placed on the body) and the use of voice prompts with the current AED models, these devices are so easy to use that recent medical studies show that children as young as sixth graders can use them. Current AED models even administer the “shock” without human intervention or having to push a button when a shock is indicated. Consequently, user error is extremely unlikely.

The Federal Government and All 50 States Have Enacted Laws Relating to AEDs and AED Usage

Under federal laws, federal buildings and all large commercial airplanes must have AEDs. All airports under FAA jurisdiction must also have AEDs. In fact, one of the first studies of public defibrillation’s effectiveness was conducted in Chicago’s O’Hare Airport. First published in 2002, this study supported the effectiveness of AED use in saving lives.

The Cardiac Arrest Survival Act, passed in 2000, established some of the first national standards for Good Samaritan Protection, which protects lay users of AEDs from civil liability. As of 2001, all fifty states had enacted state statutes or adopted regulations in this area of law. Every state has its own Good Samaritan Act and its own body of appellate law regarding duty, breach, and causation. In fact, in 41 of 50 states, (more than 80% of state jurisdictions), untrained lay rescuers are protected from civil action in the majority of circumstances.

Laws typically focus on where AEDs are required, guidelines for their maintenance and use, and protection for lay users and business owners. Under state laws, AEDs are often required in businesses, including common carriers, innkeepers (hotels), commercial businesses, and doctors’ offices. Even where they are not required, forensic experts may testify that the common law has developed so that a business should have had an AED despite the lack of a law requiring that business to do so.

Recent Trends in Legislative Activity in the 50 States

In 2015-2016, state legislators across the United States increased their focus on the requirement of having AEDs at primary and secondary school athletic activities, including games off school property. Louisiana, Massachusetts, Maine, Rhode Island, and Washington, DC enacted such laws during this time period.

What are the Common Fact Patterns, and is the Public Aware of this Area of Litigation?

There are several common fact patterns in these types of cases. However, in this author’s experience, three scenarios are the most common:

1. The first scenario is where no AED was present at the premises. The plaintiff may allege that there should have been an AED present under a common law duty. However, absent a statutory requirement, the case where there is no AED present is a very difficult case, as juries do not want to penalize businesses for not having a device if it was not required by law.
2. The second scenario is where an AED was present at the premises but the employees/staff did not know where it was or were improperly trained in its use. These cases are often successful, because a life saving device was purchased, was available, and was simply not used or not used correctly.
3. The third common scenario is where an AED malfunctioned, the battery was dead, or some other failure to maintain the device occurred. In these situations, the family of the deceased might become aware of potential liability because the failure is evident at the scene.

In general, the public does not usually think “lawsuit” when a loved one dies of sudden cardiac arrest. However, the question of “did they have an AED?” is now becoming more common when a person dies in a public place. In addition, public information campaigns by AED manufacturers, lawyers, and organizations such as the American Heart Association have increased the public’s awareness of the need for AEDs in public places.

The Elements of Civil Litigation: Duty, Breach, Causation, and Damages

Duty and Breach: Even absent a requirement under statute or ordinance, experts in the standard of care will often testify that an AED should have been present at certain public places, thus allowing the plaintiff’s attorney to defeat summary judgment or a motion to dismiss on the issue of duty. The battle usually involves the duty established by the Restatement of Torts, Section 324, which addresses the applicable duty in emergency situations.

Causation: Does the Medical Research Support Causation and Prevent-ability of Death? Whether timely use of an AED would have saved the victim is typically the area of greatest debate in litigation. Studies by the American Heart Association have long supported the premise that for every minute of delay in getting a person with a “shockable rhythm” adequate defibrillation, their chance of survival decreases by 7-10%. Thus, after about five minutes, the person’s chance of survival becomes less than 50%. According to the Florida Department of Health, the average EMS response time is nearly eleven minutes.

However, after ten minutes have elapsed from the moment of the sudden cardiac arrest, the patient has a less than afive percent chance of survival. Thus, survivability and prevent-ability of death is usually not difficult to prove through expert testimony from a qualified cardiologist. Cardiologists, electrophysiologists, and forensic pathologists can thus support, through medical evidence, an opinion that if an AED had been used on the right type of sudden cardiac arrest patient, then the patient could have been saved. For causation purposes, a timeline of events must be established.

In most cases, local EMS arrives at the scene within about ten minutes and administers their own defibrillator, which analyzes the victim’s heart rhythm. The EMS report will contain an EKG reading, which the plaintiff’s expert can then use to see if the particular heart rhythm was one that an AED could have successfully shocked back to normalcy. This EMS report can also establish the exact delay caused by the premises’ failure to have an AED or the failure to use the AED that was on the premises.

Once the precise time of the person’s cardiac arrest is established through witness testimony, the plaintiff can then establish how quickly the person could have been saved if an AED would have been immediately available. In addition, in most cases the dying person is taken to the hospital where another EKG is performed. These EKG strips can also identify the specific type of electrical disturbance, further assisting the expert(s) in their evaluation.

Damages: Most cases involving cardiac arrest involve either death or some sort of neurological injury caused by lack of blood flow to the brain. Thus, the damages in these cases are always significant. The author of this article has handled cases of victims ranging from ages 11 to those in their 90s.

Emerging Trends in AED legislation and civil litigation

In 1997, Lufthansa paid the first judgment in this area of law, after a federal judge awarded $2.4 million dollars to the plaintiff, who successfully argued, among other theories of liability, the failure of the defendant to have an AED on one of its airplanes.

After the Lufthansa case, litigation in this area of law has now become common, either for the failure of a premises owner to have an AED when required (under common law, state statute, or municipal/county ordinance), the negligent failure to properly find or use an AED when it is already present on the premises, or for a defect or malfunction in the device itself. Recent cases involving the deaths of individuals on airplanes, the deaths of Tim Russert, Michael Jackson, Carrie Fisher, and the deaths of professional athletes, have brought this area of law to the forefront in the last decade.

For a comparison of each state’s law, go to the National Conference of State Legislature’s website, which has a page where you can see each state’s Good Samaritan Act and its subsection regarding AEDs.

What is the future in this area of law?

The author of this article publicizes this area of law in publications, lectures, and through public information campaigns in the form of lectures to condominiums, gyms, and various other organizations to promote the purchase of these life-saving devices. By encouraging the widespread use of AEDs to save lives, we can all help establish a standard of care that encourages AED use in a variety of settings, while maintaining common sense liability protection for lay users.

Hopefully, in time the Wall Street Journal article from 1996 will ring true and AEDs will become as common as fire extinguishers.