Automated External Defibrillator (AED) Litigation
Automated External Defibrillators (AED’s) are magnificent portable devices that can and do save many lives every year. The devices automatically diagnose the potentially life threatening cardiac arrhythmias of ventricular fibrillation and ventricular tachycardia in a patient, and is able to treat them through defibrillation – the application of electrical therapy which stops the arrhythmia, allowing the heart to reestablish an effective rhythm. Most people do not realize, however, that the law generally does not require places that have the devices to actually use them!
Recently, and for the first time in the United States, an appellate court has ruled that a health club has an affirmative duty to use an Automated External Defibrillator or AED on a member suffering sudden cardiac arrest. The case, Miglino v. Bally Total Fitness of Greater New York, et al, 2011 NY Slip Op 09603, was handled by Attorney Scott Charnas of Charnas Law Firm, P.C., along with co-counsel John Decolator.
A New York statute (Gen. Bus. Law, Sec. 627-a) has long required health clubs with over 500 members to maintain an Automated External Defibrillator or AED on premises, along with a person trained in its use. But in the only prior decided case on the subject in New York State, the court found that a health club had no duty to actually use the device to try to save a member of the club. (See DiGuilio v. Gran, Inc., 74 AD3d 450, aff’d 17 NY3d 765).However, on December 27, 2011, New York’s Appellate Division, Second Department, in the Miglino case, held that a health club has an affirmative duty to actually use the Automated External Defibrillator or AED when one of its members is suffering sudden cardiac arrest.
Greg Miglino had been playing racquetball at his local Bally gym when he suddenly collapsed. Mr. Miglino’s family has alleged that an AED was quickly brought to his side by a Bally employee trained in its use; but the AED was never used, and by the time the EMT’s arrived and used their AED it was too late to save Mr. Miglino. * The court stated that “The risk of heart attacks following strenuous exercise is well recognized, and it has also been documented that the use of Automated External Defibrillators or AED devices in such instances can be particularly effective if defibrillation is administered in the first few minutes after the cardiac episode commences…” The court noted that sudden cardiac arrest strikes more than 1,000 Americans per day. The court went on ask, rhetorically, “…Why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?” The court went on the state that, in this case, there was also a common law duty to use the device.
The court’s decision has been appealed to the New York Court of Appeals. Hopefully, the court will issue a wakeup call to health clubs: Automated External Defibrillators / AED’s are not intended as mere props to make members falsely believe that they have some measure of protection.
* Bally’s claims that its employee deferred to a doctor and a medical student already treating the victim without an AED. Discovery in the case should determine what actually happened that day.