- Jun 25, 2001
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I recieved the following from an e-mail list I belong to.
I feel sorry for companies in the US now. You may be damned if you do (purchase and AED) and damned if you don't
I feel sorry for companies in the US now. You may be damned if you do (purchase and AED) and damned if you don't
The following article is from the October 10th issue of Lawyers
Weekly. I thought you might find it interesting....
New Wave Of Defibrillator Suits Arises
By Reni Gertner
A new wave of defibrillator litigation is starting to attack
businesses that have the devices but don't use them - or don't have
plans in place to make sure they are used properly in a time of need.
Automated external defibrillators (AEDs) are used to treat an
individual suffering sudden cardiac arrest whose heart is beating
irregularly.
In September 2004 the FDA approved the over-the-counter sale of
defibrillators, an action which some experts said would make it easier
for plaintiffs' attorneys to prove that businesses have a duty to have
a defibrillator on their premises and breach that duty if they fail to
do so.
In the wake of the FDA's decision, more and more establishments -
including ice rinks, schools and some retail businesses - have
gradually begun to purchase AEDs. According to Jamie Froman, director
of marketing for commercial AEDs for Philips Medical Systems in
Seattle, a significant number of AEDs have also been installed in
shopping malls. (Philips manufactures the HeartStart Home
Defibrillator, the only AED that has been approved for
over-the-counter use.)
Now a new breed of cases is being pursued against these entities when
the devices aren't used or aren't used properly.
In March, the family of a 17-year-old ice hockey player who collapsed
and died while playing at a San Jose, Calif. rink sued the city and
the team for wrongful death. The rink had a defibrillator, but
allegedly no one who knew how to use it was nearby when the incident
happened, and no one informed the EMTs who eventually arrived of its
presence.
And late last year, the parents of a 20-year-old University of
Pittsburgh student filed suit after their daughter suffered brain
damage because campus police didn't have a defibrillator on hand when
she suffered an irregular heart beat and lost consciousness during
class.
According to the complaint, Erica Lynn Pratt had no previous heart
problems, and although the university website indicates that all
campus police carry a defibrillator, the two officers who responded in
this case didn't have them and failed to perform chest compressions on
the student.
Richard Lazar, founder and CEO of AED Risk Insights, a Portland, Ore.,
company which provides risk management and legal information services
related to AEDs, believes this second wave of litigation has only just
begun.
"More than 90 percent of AED deployments are probably flawed," he said.
In Lazar's view, the key to avoiding these suits is to have a
well-developed plan for deploying an AED in the event of an emergency.
"Comprehensive AED programs - not just AEDs - are required to reduce
liability risks and improve the chances of saving lives," he said.
Litigation Risks
The first round of defibrillator suits took on businesses that weren't
equipped with defibrillators. A big target of that litigation
continues to be health clubs, which are required to have AEDs by an
increasing number of states.
"I think the standard of care is evolving more quickly with respect to
the health club industry," said Lazar. "Health clubs are now at an
increasing risk that they will be found liable" if they fail to deploy
an AED.
San Mateo, Calif., attorney Mike Danko, a partner with O'Reilly, Danko
& Yamane, agreed.
"It's evidence of negligence if you're not meeting the standard your
competition has set," said Danko, who recently brought a lawsuit on
behalf of a family whose son died of sudden cardiac arrest at a 24
Hour Fitness, Inc. club that didn't have an AED.
But businesses that have defibrillators can still expose themselves to
potential litigation in a number of ways, Lazar said.
First of all, problems arise if the devices and all of their
components aren't properly maintained.
Batteries typically expire within one to five years, and either have a
date written on them or make a chirping noise when they are depleted.
Electrodes have expiration dates written on their packages and last
anywhere from one to three years.
In April, a passenger died of a heart attack at the Philadelphia
International Airport after two AEDs failed because the batteries were
dead.
And even if the machines are in working order, a site that has an AED
could still be sued if the device isn't easily accessible, leading to
a longer response time. Lazar cited an example where a 14-year-old
student at a Rhode Island high school died of sudden cardiac arrest
during baseball practice because the only AED in the building was
locked in the school nurse's office - 1/5 of a mile from the baseball
field. This case caused schools across the state to begin buying
defibrillators.
Yet another litigation risk occurs when employees fail to use a device
either because they lack awareness of it or haven't been trained in
its use.
Although "an untrained person can use an AED within about 90 seconds,"
Lazar said, "training increases the comfort level" with using the
device and thus increases the likelihood that someone will do so when
needed.
While AEDs are widely regarded as easy to use, Lazar predicted there
could still be suits over using the devices improperly.
But Boston attorney Dean Nicastro of the firm Pierce & Mandell noted
that a suit based on the failure to use an AED would also require
proof that in a given instance, the business had a duty to use it.
Designing A Program
To avoid litigation, Lazar recommends that companies develop a
deployment program that "quickly brings together the sudden cardiac
arrest victim, an AED user and the AED."
A good program will have the following components:
· Short response time
Lazar suggested having enough AEDs present "to ensure one can be
retrieved and used within about four minutes anywhere at the site."
Further, businesses must have a method for communicating that the AED
is needed quickly enough for it to be useful. Lazar said this might
include the use of an intercom system or any other quick method of
contacting someone who can assist.
· Comprehensive policies
A business should have a policy that "authorizes any willing rescuer
to use an AED," Lazar said. "Restrictive policies that limit AED use
to only trained operators create a risk it won't be retrieved and used
when needed."
Although untrained persons should be authorized to use the device,
companies should also have seminars to train as many workers as
possible.
In addition, there should be procedures in place to check the device
frequently to ensure that the batteries and electrodes haven't
expired.
· Signs and accessibility
Clear signs are essential to inform people where AEDs are located,
Lazar noted.
In addition, an AED must be stored such that it can be "quickly
retrieved," rather than locked in an office or closet.
Questions or comments can be directed to the writer at:
reni.gertner@lawyersweeklycom
© 2005 Lawyers Weekly Inc., All Rights Reserved.
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