Good Samaritan Laws: The Shocking Truth

Paris Hotel and Casino  Las Vegas, Nevada

Good Samaritan Laws The Shocking Truth Presented by: Steven B. Tannenbaum, Esq.

Presenter Disclosure Information 1. No Faculty Memberships 2. Good Samaritan Laws: The Shocking Truth

3. No Commercial Interests 4. No relevant financial relationships exist.

Presenter Disclosure Information Steven B. Tannenbaum, Esq. Good Samaritan Laws: The Shocking Truth FINANCIAL DISCLOSURE:  No relationship with any commercial supporter UNLABELED/UNAPPROVED USES DISCLOSURE:

No unlabeled or unapproved uses will be discussed in this presentation

Good Samaritan Laws and AED Usage Liability: The Shocking Truth

• Steven B. Tannenbaum, Esq. • Board of Directors, Parent Heart Watch • Board of Directors, Louis J. Acompora Memorial Foundation • Board of Directors, Dominic A. Murray 21 Memorial Foundation • Past Board Chair, SCAA • Sudden Cardiac Arrest Survivor 5/6/09

My “Good Samaritans” • Dedicated to: • Paula Daskalakis • Sue Lippman • Nassau County Police Department • My “Angels”

CTV CALVARY

• Canada's emergency room doctors are speaking out about the responsibility of citizens when they encounter someone who is in cardiac arrest. • "It is now no longer socially or morally acceptable to do nothing in the face of cardiac arrest," said Dr. Christian Vaillancourt.

Our Organizations’ Goals

• • • • •

PRIMARY AND SECONDARY PREVENTION Public Education and Awareness and Heart Screenings Teach the Links in the Chain of Survival Teach and encourage the use of CPR Teach and encourage the use of AEDs Save lives!

This Has To Change!

CAUSES OF DEATH IN U.S.

Encouraging CPR Training in our Schools • As of 2010, 36 states had a law or curriculum standard encouraging CPR training in schools. • Training all secondary education students will add a million trained rescuers to the population every few years. • These students can save lives at home, at schools, malls, health clubs, etc.

The Effect of Bystander CPR • Currently, only about 30% of out of hospital SCA victims receive CPR. • Most untrained bystanders hesitate to help a cardiac arrest victim. • Research shows that bystanders, trained in CPR are much more likely to take action. • With activation of 911, early bystander CPR, rapid defibrillation, effective advanced life support and integrated post-resuscitation, survival rates following SCA can exceed 50%.

Barriers to our goals • • • • •

Public Apathy and lack of education. Bystander Reluctance-Fear of failure. “I can call 911.” “It’s not my responsibility.” “I work in a building where there are doctors” Disease transmission“yuck factor” despite no reported cases of HIV or hepatitis through CPR. • MISPLACED AND UNFOUNDED FEAR OF LITIGATION • IGNORANCE OF GOOD SAMARITAN LAWS

The Legislative Dilema • All states have passed legislation that protects lay rescuers, but • 1. There is no unified legislation on this issue; • 2. There is great variability of Good Samaritan protection from state to state, creating confusion and/or deterrence to lay rescuers; and • An excuse not to deploy AEDs!

Role of the Law • An organized society’s attempt to define an individual’s personal rights and his/her responsibilities towards others. • To further that society’s goals. • To deter inappropriate conduct. • To encourage appropriate conduct. • To establish reliable and enforceable guidelines to govern people’s conduct.

Legal Definitions • The Good Samaritan Rule is a doctrine of law which gives legal protection to a person who comes to the aid of an injured or ill person, without expectation of compensation, from being liable for negligence as long as the volunteer aid-giver acted with reasonable care. And without gross negligence. • The Good Samaritan doctrine is legislated to encourage Good Samaritans to come to the aid of others.

Purpose of The Good Samaritan Law • Reduce the reluctance of bystanders to help an injured or ill person for fear of being sued for causing death or injury. • Encourage people to come to the aid of others without concern for litigation. (No good deed goes unpunished!) • There is no duty, as a Good Samaritan to come to the aid of a sick or injured person in any State in our country.

The Good Samaritan Defense • The most common ingredients for successful invocation of the Good Samaritan doctrine are: • (1) the care rendered was performed voluntarily, as the result of the emergency, without expectation of compensation; • (2) the initial emergency or injury was not caused by the person invoking the defense, and • 3) the emergency care was not given in a grossly negligent or reckless manner.

Federal Cardiac Arrest Survival Act 2002 (CASA) • Conditional immunity from legal liability for harm resulting from AED use by lay responders in out of hospital settings. • CASA supersedes State law to the extent necessary to protect AED users or acquirers, but States can enact broader protection.

State Law • All 50 States have Good Samaritan Laws that match or supersede CASA regulations and generally address: • Good Samaritan Immunity • Medical oversight (PADs) • AED training and maintenance • Post event reporting

States with AED Mandates 1. Arizona: State Owned Buildings newly constructed or major renovation 2. California: Health Clubs 3. Nevada: Public Schools, Airports, Event Centers, State & County Buildings 4. Texas: Public Schools 5. Washington: Dental Offices

Additional related legislation • AEDS required in public schools • Pennsylvania, NY, Nevada, California, Florida, Maine, Mass., N.J., Rhode Island, Virginia, Delaware and others.

• AEDs in selected Health Clubs • Illinois, N.Y., Rhode Island, California, Louisiana, Arkansas. • AEDs in public buildings • Arizona, California, Nevada, New York, New Jersey.

Registration • 35 states require the registration of AEDs with local authorities. • This process is different in each state. • Process can be quite difficult and time-consuming. • Result: Confusion and Excuses not to purchase AEDs.

Current problems in the Law • Some states limit AED usage to trained responders only. 7 states, including N.Y. prohibit AED use by untrained operators. • Some states have Good Samaritan Laws protecting only trained responders. • Some states require physician supervision over AED owners

What is Negligence? • Negligence is the existence of a duty or obligation recognized by law. • It is a failure to conform to that duty or a failure to use reasonable care under the circumstances. • It can be the failure to do what a reasonable person would do under similar circumstances. • It can be doing something that a reasonable would not do under similar circumstances. • The negligence must be a proximate cause or substantial contributing factor to an injury or death. (How can that occur in a case of SCA?)

What is Gross Negligence? • Gross negligence is a conscious and voluntary disregard of the need to use reasonable care. • It is conduct which is likely to cause foreseeable grave injury or harm. • It is conduct that is extreme when compared with ordinary negligence, which is a mere failure to exercise reasonable care. • If you do what you have been taught to do in a CPR/AED course, you will not be deemed to have been grossly negligent if your attempt to give care to a person in distress fails. • You can’t cause further injury to a dead person!

New York Good Samaritan Act • NYS Public Health Law, Article 30 - Emergency Medical Services ;3000-a. …any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor's office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person. Nothing in this section shall be deemed or construed to relieve a licensed physician, dentist, nurse, physical therapist or registered physician's assistant from liability for damages for injuries or death caused by an act or omission on the part of such person while rendering professional services in the normal and ordinary course of his or her practice.

In N.Y. … • “No person may operate an AED unless the person has successfully completed a training course in the operation of an AED approved by a nationally recognized organization or the state emergency medical services council.” NY Public Health Law 3000-b.

Texas Good Samaritan Law • Section 74.002. • UNLICENSED MEDICAL PERSONNEL. • Persons not licensed in the healing arts who in good faith administer emergency care as emergency medical service personnel are not liable in civil damages for an act performed in administering the care unless the act is willfully or wantonly negligent. This section applies without regard to whether the care is provided for or in expectation of remuneration. • (V.A.C.S. Art. 1a (part).)

California CPR/AED Law • Section 1714.21 of the Civil Code. • A person who has completed a basic CPR and AED use course that complies with regulations adopted by the Emergency Medical Services (EMS) Authority and the standards of the American Heart Association or the American Red Cross for CPR and AED use, and who, in good faith and not for compensation, renders emergency care or treatment by the use of an AED at the scene of an emergency shall not be liable for any civil damages resulting from any acts or omissions in rendering the emergency care. A person or entity who provides CPR and AED training to a person who renders emergency care pursuant to subdivision (b) shall not be liable for any civil damages resulting from any acts or omissions of the person rendering the emergency care.

California AED Law • (d) A physician who is involved with the placement of an AED and any person or entity responsible for the site where an AED is located shall not be liable for any civil damages resulting from any acts or omissions of a person who renders emergency care • (e) The protections specified in this section shall not apply in the case of personal injury or wrongful death that results from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED.

Florida Good Samaritan Law Good Samaritan Act; immunity from civil liability.— 768.13 (2)(a) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

Mayer v. L.A. Fitness(Florida) April 2008 • Decedent died of SCA while exercising. • No Florida law requiring AEDs in gyms. • Trained employee did not perform CPR • No AED on the premises

Florida Court’s Rulings • Owner must only take minimal steps to safeguard patron, but no duty to perform medical rescue procedures. Must summon medical help within a reasonable time. • CPR or Heimlich is not in business owner’s duty to render aid. • Florida’s CASA does not require AEDs in any building or location nor a requirement to have persons trained in use of AEDs.

Abramson v. Ritz Carlton (NJ) • Owner's duty was discharged when medical help was called. • New Jersey Good Samaritan Act immunizes those who provide gratuitous assistance. N.J. Stat. Ann.2A:62A-1 • Defendants did not have duty to have oxygen or AED on its premises.

Michigan House Bill Oct. 2011 • “I want every school to have at least one AED and I don’t want any hesitation by any coach or school personnel in using the device”. State Senator Rick Jones • Immunity from liability for school employees using an AED in the course of their employment or at an extracurricular school activity for damages resulting from an act or omission in that performance.

Evolution of New York Law? (As of 2012) • DiGiulio v. NY Health & Racquet Club • Mr. Digiulio collapses during a workout • CPR started within 2-3 minutes • Within 5 minutes paramedics use AED. • Pulse restored, but P died in hospital 4 months later.

Action/Inaction of Racquet Club • Employee began CPR almost immediately • Other employee trained to use AED did not attempt to access it because cabinet had a lock and he did not have key. • He never tried to open cabinet or break glass, but he searched for the key. • BUT, the cabinet was never locked!

Appellate Division Decision • No viable cause of action exists! • “The risk of cardiac failure is inherent when participating in intense sporting activity or exercise”.“ BLAME THE VICTIM! • The club could have fulfilled its duty by simply calling 911 and they did CPR. • Club was not under any legal duty to use AED despite law requiring it’s presence!

What about GBL 627-a(1)? • N.Y. requires gyms with more than 500 patrons to have an AED. • “..Court does not construe the law as imposing liability on health club which has an accessible AED on premises but whose employee exercises poor judgment in attempting to access or use it.” • In other words, no gross negligence!

Unanswered questions • Does New York’s General Business Law set forth an affirmative duty to use the AED that clubs are required to provide? • DiGiulio suddenly collapsed and EMS documented “full cardiac arrest” but the Court called it a “heart attack” and apparently didn’t know the difference. Why not?

Miglino v. Bally Fitness • P collapsed while playing racquetball. • Employee was trained in AED and CPR, but AED was not used. • EMS called at 6:59 and arrived 7:07am. • P found unconscious and unresponsive. • EMS reported V-fib and decedent was shocked, but could not be revived.

Court’s Rulings • The bill would ensure a higher level of safety for health club members. • There is an affirmative (inherent) duty for health clubs, pursuant to Statutory Law GBL 627-a, to use AEDs and to have an employee trained to use them. • It is illogical, in light of New York statutory law, to conclude that no such duty exists.

Effect of Good Samaritan Law in New York • The Good Samaritan Law still provides protection to those using AEDs unless there is gross negligence. • Where the case is based on the failure to use AED, where required by statute, the gross negligence standard is not applicable and defendant can be liable for ordinary negligence.

How Will Miglino Affect Other States? • Will the ruling encourage other states to mandate placement of AEDs in more locations? • Will this ruling create a new standard of care in terms of AED placement and usage? • Will the ruling encourage more use of AEDs because failure to use them is negligence?

What is the trend?

Standard of Care "AEDs are becoming an unofficial standard of care, the debate isn't about what happens if you have an AED and use it improperly, but what happens if you don't have an AED at all.“ Sandy Lovett, Senior AED associate with the American Red Cross. – 2005

The Court of Appeals Speaks: The Miglino Decision • D appeals from Appellate Division Order denying motion to dismiss complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. • A.D. certified to the Court of Appeals the following question: “Was the opinion and order … properly made with respect to the cause of action asserted against Bally?”

No Affirmative duty upon gyms to use AEDs where the law requires their presence! • …”the words ‘volunteer’ in GBL 627-a [1] and ‘voluntarily’ in GBL 627-a [3] evince Legislature’s intent to protect health clubs and their employees from the risk of liability for ordinary risk of negligence with respect to AEDs.”(Business is protected!) • What about the patrons who are vigorously exercising and are at increased risk for SCA? How are they protected?

The Court’s Rationale • Legislative enactments creating liability where none previously existed must be strictly construed (citing Digiulio). • Implied duty envisioned by the dissent would engender a whole new field of tort litigation saddling health clubs with new costs and generating uncertainty. • What about people suffering from SCA in gyms? Don’t they matter too?

More “Rationale” • “A law that mandates the presence of AEDs and trained individuals at health clubs is easy to obey and enforce.” • The Legislature is unlikely to have imposed such a new duty absent an express statement. • The minimal steps adequate to fulfill a health club’s limited duty (calling 911 and CPR) were undertaken.

The Dissent (More Sense!) • Legislative history demonstrates that intent behind requiring AEDs in gyms recognizes likelihood of increase in SCAs where people engage in physical exertion and there is a dramatic reduction in fatality rate with immediate use of AEDs and CPR. • The statute should be interpreted in a way that is consistent with its spirit and benevolent aim. (NYC Asbestos Litig. 82 NYS 2d 342)

Chief Judge Lippman • “As read by the majority, the Legislature enacted an essentially purposeless statute that requires health clubs to purchase AEDs and train employees to use them, but does not require that the devices be applied in any potentially life saving situation. I cannot agree with an interpretation that is so plainly contrary to accomplishing the goal of the legislation.”

What do we do now? • “In light of the majority opinion, the Legislature may wish to revisit the statute and make clear the health clubs are in fact under a duty to make use of AEDs they are required to have on their premises.” • Notify gym owners and other locations where AEDs are required by law (or even if not mandated) that they are protected by Good Samaritan Law when AEDs are used.

Effect of Good Samaritan Law • “Although some concerns remain over legal responsibility, these appear largely unfounded because there has never been, to our knowledge, a successful lawsuit against an individual who has purchased, used, or provided medical oversight for an AED” . The Automated External Defibrillator JAMA Feb, 2006

• • • •

Clinical Benefits and Legal Liability Hannah England, BA Paul S. Weinberg, JD N. A. Mark Estes III, MD

Is H.R. 3511 the Answer? • Introduced in the House of Representatives on Nov. 29, 2011 • “…to clarify liability protections regarding emergency use of automated external defibrillators.” • This Act may be cited as the “Cardiac Arrest Survival Act of 2011.”

Purpose of the Act • To establish national uniform protection from civil liability for persons who use AEDs or who own premises in which an AED is taken for use to encourage deployment of AEDs. (at a minimum level) Federal pre-emption of State Laws. • To address the current “patchwork” of State Good Sam Laws which are inconsistent and unpredictable.

Good Samaritan Protections • A person who uses or attempts to use an AED in a medical emergency, who is not the owner/acquirer of the device is immune from civil liability from any harm resulting from the use or attempted use of such device. • Similar protection to premises owner/lessee/manager.

Additional Protection • Protected regardless of whether user saw or complied with cautionary signage; • Regardless of whether user received any training in the use of AEDs; and • Regardless of whether user was assisted by another person, including but not limited to a licensed physician.

Inapplicability of Immunity • User’s willful or criminal misconduct, gross negligence, reckless misconduct caused harm to the victim; • Certified health professionals who used the AED within the scope of the license or certification of the professional and within the scope of the employment or agency of the professional;

Inapplicability (continued) • Harm is caused by an employee or agent of a hospital, clinic or other health care provider while acting within the scope of the employment; • Such person is the owner/acquirer of the AED who leased the AED to a health care entity and the harm is caused by employee of the entity who used the device in the course of employment.

Advice to gym owners • People who are performing vigorous physical exercise are at increased risk for Sudden Cardiac Arrest. • Do you want to be known as the gym where someone was saved or the gym where someone died? • Are you more concerned about non-existent liability or about protecting the lives of your members? • AED availability is becoming the standard of care. • The N.Y. Miglino case still extends Good Samaritan protection to gym owners/employees and they are only liable for gross negligence when using AEDs,

What about AHA Recommendations? • AHA “recommends” placement of AEDs. This is only advisory and does not have the force or effect of law. • Hopefully the AHA recommendations will have a significant influence on the “standard of care” in the future. • If a municipality or business owner places an AED, there must be compliance with Section 2150-D (a proper PAD program) which requires: • Training; • Maintenance and testing; • Physician consultation.

Some Reported AED Cases • California: Fitness Center lacking AED and employees failed to perform CPR. • Florida: Fitness Club failed to have AED. • Busch Gardens failed to have AED. • Maryland: Fitness club failed to have AED. • Swimming club failed to have AED. • Louisiana: Convention Center failed to call for available AED located 70 feet away. • Pennsylvania: Private college failed to provide AED to a lacrosse player on the practice field.

Limones and Verdugo Will we have an answer? • Limones v. School District of Lee County and School Board of Lee County • Is there a legal duty to use AEDs in Florida High School Athletic Association schools where the presence of AEDs has been mandated by the Legislature?

Facts of Limones Case • High School soccer players suffers SCA during a school game. • CPR administered by Coach • School’s AED on a golf cart parked near soccer field's end zone was never used! • Abel not defibrillated for 23 minutes with AED brought by Fire Department • Abel has severe brain damage.

The Question before the Court • “ Whether reasonably prudent post-injury efforts for Abel would have required making available, diagnosing the need for, or using an AED? • Section 1006.165 Florida Statutes(2008) requires the presence of an operational AED at FHSA schools and must ensure employees or volunteers thereat are trained in CPR and AED usage.

School’s Duty to Students • Schools must adequately supervise students. The school stands “partially in place of the student’s parents.” It must: • Provide adequate equipment; • Properly supervise the event; • Utilize appropriate post injury efforts to protect the injury against aggravation

The Court’s Ruling • “The School Board’s common law duty to use appropriate post-injury efforts to protect Abel’s injury against aggravation did not include a duty to maintain, make available or use an AED.” • “The School Board did not voluntarily undertake the duty to use an AED by acquiring one and providing training…as required by Section 100.165.”

The Court’s Ruling (Con’t) • School Board only required to have operational AED, register its location and provide appropriate training; • Neither Good Sam Act nor Cardiac Arrest Survival Act sets forth duty to use AED. • School Board has immunity under CASA because it acquired AED and made it available for use.

Parent Heart Watch’s Position • “…the enactment of laws requiring the presence of AEDs implies the intent of the legislature to create a duty to use AEDs.” • “Parent Heart Watch encourages Florida Supreme Court to take action to mandate AED use and save young lives.” • The availability of AEDs in schools and well practiced Emergency Action plans will save young lives!

Verdugo v. Target The Question Before the Court • “In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an Automatic External Defibrillator(“AED”)for cases of sudden cardiac arrest?” • Note: There is no duty in California, created by the legislature, for the owner to have an AED on its premises.

Verdugo, the Facts • Mary Ann Verdugo, age 49, was shopping at Target in Pico Rivera, California on August 31, 2008 and suffered an SCA • 911 was called and it took several minutes for paramedics to reach the store and several minutes to reach Ms. Verdugo inside. She was dead before they arrived. • Target did not have an AED in store.

What did Target know? • “Target sells AEDs on its website for approximately $1200.” • The court reported that “AEDs can be used by the untrained, as the devices provide oral instructions to users and “are designed not to allow a user to administer a shock until after the device has analyzed a victim’s heart rhythm and determined that an electric shock is required.”

The Argument of Target • TARGET: There is no legislation which may be construed as requiring a building owner or a building manager to acquire and have installed an AED in any building. The statutory scheme has “occupied the field,” and that imposing a common law duty here would “defeat the underlying legislative purpose.” • Duty discharged by calling 911.

The Argument of Verdugo • “… The thrust of California’s legislative scheme (Good Sam Laws) regarding AEDs is to encourage their availability by providing immunity for those who acquire them and comply with training and maintenance requirements.” • Any business required to install an AED under common law tort theory is entitled to statutory immunity from civil liability.

The Court’s Considerations • “there is under California law a special relationship between business owners and their invitees which creates a duty to provide “assistance [to]… customers who become ill or need medical attention.” • Would imposing a common law duty beyond calling 911 contradict California’s legislative scheme?

Is there a clear answer? • “In sum, given the uncertainty in the most applicable California precedents ... weighing the foreseeability of the harm suffered by Verdugo against the burden to be imposed on Target does not provide a clear answer to the question of whether Target had a duty under California law to purchase AEDs.”

What Have Other States Done? • “Some courts to have considered the matter have held that there is no duty on the part of business owners to provide AEDs to be used on their invitees…” • “Other courts, however, have allowed similar AED suits to go to the jury, concluding that the duty question turns on case-specific factual matters.” (What is the standard of care?)

The Result? • “Thus, neither California precedents nor cases from other courts provide us with sufficient guidance to answer the important question of California tort law presented by this case. We therefore respectfully ask the California Supreme Court for guidance and will follow that guidance once received.”

Questions Posed By The Court During Oral Argument • How would a store clerk know a customer was suffering from cardiac arrest? • Whether the device could be inappropriately used and cause more harm to a shopper suffering from another ailment? “It may very may well be that the good intentions could backfire and do more harm than good.” • “Where do we draw the line?

Verdugo’s Response • AEDs are easily administered even by lay people. • Simplicity of use! • AEDs issue voice commands. • AEDs come equipped come equipped with sensors that allow jolts of electricity only when necessary.

Question: Where Do We Stand? • In Florida, we do not know whether the Supreme Court will mandate the use of AEDs in those locations where the legislature mandates their presence. • In California, we do not know if the Supreme Court will establish a duty upon a commercial property owner to provide AEDs for its business invitees.

We Can Work It Out!

The result of using an AED!

And This T00!

Let’s Make More Memories