by Richard A. Lazar

Occupational Health & Safety
August 1997

"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 and costing $2,500 to $4,000 each, will be as common as fire extinguishers."

-The Wall Street Journal
Aug. 5, 1996

An evolving legal trend may ultimately leadto higher risks for businesses that fail to purchase and use AEDs. 

In 1990, the American Heart Association challenged the medical device industry to develop a state-of-the-art automated external defibrillator (AED) capable of being used by virtually anyone. As the Wall Street Journal noted, the industry responded in a manner leading to significant advances in AED technology. Smaller, lighter, cheaper, easier, sturdier and more effective AEDs are now available. As a result, many businesses are now considering the benefits associated with the purchase of AEDs for use by trained individuals on site.

Despite technological progress, tort liability fears create impediments to the widespread deployment and use of these lifesaving machines within the commercial business environment. In other words, before AEDs can become "as common as fire extinguishers," legal concerns must be acknowledged, understood, and addressed.

AEDs in the Land of Torts 

One significant obstacle to large-scale AED distribution in the business world is fear of exposure to negligence liability lawsuits. Would-be AED purchasers appear to perceive heightened legal risk flowing from the acquisition, deployment, and use of the device.

Prudent businesses must certainly analyze relative risks and benefits when considering whether to adopt or not adopt AED programs. In this context, two recent jury verdicts suggest an evolving legal trend that may ultimately lead to higher risks for businesses that fail to purchase and use AEDs. A basic negligence primer helps explain why.

In order for a plaintiff to successfully sue an AED purchaser or user, four essential elements must be proven. These include duty, breach of duty, causation of injury, and legally recognized damages. The failure to prove any one of these elements is fatal to a plaintiffÂ’s case. The element of greatest import in the AED context is that of duty.

Duty in negligence law is defined as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." In the absence of a legal duty, no liability can be imposed. In other words, one cannot be successfully sued for failing to perform an act in the absence of a legally mandated obligation to perform the act in the first place.

In the context of duty, businesses contemplating the purchase of AEDs must consider whether a legal obligation to render medical aid to patrons exists and, if so, the scope of the obligation, In effect, this constitutes an analysis of legal risk.

While bystanders generally have no legal obligation to provide affirmative medical aid to ill or injured persons, the existence of certain relationships between a victim and one in a position to render aid may create a duty to provide assistance. Business sectors including common carriers (airlines, passenger rail lines, cruise ship lines, etc.), innkeepers (hotels, motels, etc.), and commercial business establishments open to the public (most other businesses) may be compelled by law to render a minimum level of first aid care and to timely summon outside emergency medical assistance. The scope of this duty is generally defined by appellate court case law, trial courts and juries.

Historically, appellate courts have been generally resistant to requiring common carriers, innkeepers, and commercial businesses faced with ill or injured patrons to do more than summon an ambulance. Two recent trial court verdicts, however, suggest an evolving trend toward higher standards requiring the protection of customer health and safety in the commercial business environment.

In June 1996, a Florida jury found Busch Gardens negligent for not properly training its employees to provide emergency care and for failing to have essential medical equipment, including a defibrillator, on the premises. The jury awarded the plaintiff $500,000 in damages for the resulting death of her 13-year-old daughter.

In another recent case, a federal judge found Lufthansa Airlines negligent for failing to timely provide treatment for a passenger suffering a cardiac emergency and awarded $2.7 million in damages. In light of this case and a variety of other factors, the Federal Aviation Administration is currently considering the mandatory deployment of AEDs on all commercial aircraft.

While it is unclear whether the Busch Gardens and Lufthansa verdicts will survive court appeals, modern advances in AED technology coupled with low cost and the proven ability of these devices to save lives may persuade more and more trial and appellate courts to sanction businesses that fail to adopt AED programs, Prudent businesses can avoid this legal risk by purchasing AEDs and training employees in their use.

Balancing Risks and Benefits 

Legal risks associated with adoption and implementation of business-based AED programs, while not zero, appear quite negligible, At least one industry believes greater risks flow from the failure to adopt such programs.

Airline industry observers also say they expect other U.S. airlines to follow American Airlines’ footsteps (American has announced a plan to equip all its foreign and domestic aircraft with portable defibrillators by the end of 1998) in hopes of avoiding potential lawsuits for negligence that might arise from a failure to provide appropriate medicines and equipment needed to treat a sick passenger in flight.

The following factors highlight why business-based AED programs generally constitute a low-risk endeavor: 

No lawsuits, verdicts, or appellate cases are identified involving the use of a defibrillator in the business environment to help a victim of sudden cardiac arrest (SCA).

SCA victims are, in effect, already dead. Use of an AED can only help, it cannot hurt.

Many if not most businesses carry liability insurance coverage protecting the business in the event of an AED related lawsuit.

Many states have laws limiting the types and scope of negligence lawsuits permissible against lay individuals rendering emergency medical care (tort limitation, Good Samaritan, and a variety of immunity laws).

In sum, increased liability risk, if any, associated with adoption of a business- based AED program is quite minimal. In contrast to limited risk, the benefits of AED program adoption are quite remarkable.

For example, published medical research suggests that persons suffering certain forms of SCA who are defibrillated in less than one minute have a 90 percent chance of surviving. For each minute of continued SCA, the likelihood of successful conversion decreases by approximately 10 percent. Thus, front a public health perspective, businesses adopting AED programs can actually increase the likelihood of saving lives.

From a public relations perspective, AED programs offer businesses the opportunity to distinguish themselves in the marketplace. American Airlines, emphasizing passenger welfare benefits, received significant positive media attention following its AED announcement.

Overall, the benefits of AED program adoption in the commercial business arena far outweigh any risks. As these benefits become better understood and disseminated within the business community, it is highly likely AEDs will, indeed, become as common as fire extinguishers.