Claims Involving Automated External Defibrillators (AEDs)
According to the Center for Disease Control and Prevention, heart disease remains the leading cause of death in the U.S., despite COVID-19’s deadly impact. Furthermore, according to the American Heart Association, over 350,000 cardiac arrests occur outside the hospital each year and roughly 90% of them result in death. Unlike other illnesses, heart disease symptoms can be extremely difficult to identify. As a result, a person with heart disease may go undiagnosed until the moment that person suffers a heart attack. In the event of a heart attack, an automated external defibrillator (AED) may be utilized to deliver an electroshock to restore normal heart rhythm and ultimately prevent the heart attack from becoming fatal. In recognition of the vast life-saving applicability of AEDs, all 50 states and the District of Columbia have enacted at least one law to increase the availability of AEDs, limit civil liability for the use of an AED, and require AEDs in designated areas, including schools.
South Carolina established AED requirements in 1999 by enacting the South Carolina Automated External Defibrillator Act. 1999 S.C. S.B. 728. The essential purpose of this act was to encourage “greater acquisition, deployment, and use of automated external defibrillators in communities across the State.” Id. Additionally, acts amending and prescribing AED requirements were enacted in 2007 and 2015. See 2008 S.C. Acts 206, 2007 S.C. S.B. 71, 2007 S.C. R. 237; see 2016 S.C. ALS 152, 2016 S.C. Acts 152, 2015 S.C. H.B. 3265, 2015 S.C. R. 157. To view the codified language of these Acts, click here.
The 1999 AED Act began by defining an AED, a health care professional, and a designated AED user. Id. A designated AED user is “a person identified by the person or entity acquiring an AED who has received training in the use of an AED pursuant to this chapter.” Id. This language is now codified at S.C. Code Ann. § 44-76-20.
The law then requires a person or entity that acquires an AED to:
- require its designated AED users to have current training in CPR and AED use by the American Heart Association, American Red Cross, American Safety and Health Institute, or National Safety Council, or training from a program that meets or exceeds the training standards of these organizations;
- maintain and test the AED according to the manufacturer’s operational guidelines and keep written records of maintenance and testing;
- employ or obtain a health care professional to serve as its AED liaison;
- have in place an AED program approved by its AED liaison which includes CPR and AED training, AED protocol or guidelines, AED deployment strategies, and an AED equipment maintenance plan;
- include in its AED protocol or guidelines that a person who renders emergency care or treatment to a person in cardiac arrest caused by ventricular fibrillation/tachycardia by using an AED must activate the emergency medical services system or 911 as soon as possible; and
- report any clinical use of the AED to the AED liaison.
S.C. Code Ann. § 44-76-30.
To encourage the use of AEDs, South Carolina law provides a Good Samaritan defense, “Any person or entity acting in good faith and gratuitously shall be immune from civil liability for the application of an AED unless the person was grossly negligent in the application.” S.C. Code Ann. § 44-76-40. In the absence of gross negligence, designated AED users, AED liaisons, prescribing physicians, and people or entities following the requirements of S.C. Code Ann. § 44-76-30 are immune from civil liability. Id. Further, any person or entity, acting in good faith and gratuitously, that teaches CPR training which includes AED training is immune from civil liability for their training if the person providing the training acts in accordance with the guidelines and policies of a national training organization, the person is authorized to provide the training, and the training delivery was not grossly negligent. Id.
Accordingly, a person who is grossly negligent in the application of an AED will not be immune from civil liability. In South Carolina, “Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.” Bass v. S.C. Dep’t of Soc. Servs., 414 S.C. 558, 571, 780 S.E.2d 252, 258-59 (2015) (citing Etheredge v. Richland Sch. Dist. One, 341 S.C. 307, 310, 534 S.E.2d 275, 277 (2000)). However, “there is no gross negligence where slight care is exercised.” Self v. City of Gaffney, No. 2007-UP-313, 2007 S.C. App. Unpub. LEXIS 434, at *5 (Ct. App. June 12, 2007). If a person or entity acquires an AED, it may become incumbent upon that person or entity to apply an AED. Therefore, the failure to apply an AED when someone is experiencing symptoms of cardiac arrest may constitute gross negligence, giving rise to civil liability. On the other hand, calling 911 would most likely qualify as exercising slight care, potentially discharging the duty to apply an AED.
Consequently, a person or entity may decline to acquire an AED to avoid assuming a risk of liability. An entity may not be immune from civil liability if one of the requirements listed in S.C. Code Ann. § 44-76-30 are not complied with. For example, a person serving as an entity’s AED liaison may lose their credentials and no longer qualify as a health care professional under the definition of the law. Likewise, a designated AED user’s CPR training certification may expire. By failing to renew the certification, a designated AED user’s omission may constitute gross negligence if it is deemed an intentional conscious failure to do something which it is incumbent upon the designated AED user to do.
Following the enactment of the 2007 act, each school district in South Carolina is required to develop and implement an AED program meeting the requirements of Chapter 76 of Title 44 of the 1976 Code for each high school in the district. See S.C. Code Ann. § 59-17-155. The program must include provisions that:
- require an operational automatic external defibrillator on the grounds of the high school;
- require all persons who are reasonably expected to use the device to obtain appropriate training, including completion of a course in cardiopulmonary resuscitation or a basic first aid course that includes cardiopulmonary resuscitation training and demonstrated proficiency in the use of an automated external defibrillator. The school district superintendent, or the superintendent’s designee, shall determine who is reasonably expected to use the device;
- establish guidelines for periodic inspections and maintenance of the defibrillators; and
- define the purpose of the program and the manner in which the program will operate.
S.C. Code Ann. § 59-17-155.
Since the 2017-18 school year, school districts in South Carolina have been required to provide instruction to students of grades nine through twelve in CPR, which must include awareness in the use of an AED, at least one time. See S.C. Code Ann. § 59-32-30. This law was codified following the enactment of Ronald Rouse’s Law. See 2016 S.C. ALS 152, 2016 S.C. Acts 152, 2015 S.C. H.B. 3265, 2015 S.C. R. 157. Ronald Rouse was a South Carolina high school football player who collapsed and died from a heart attack during the team’s homecoming game in 2012.
Even though the Good Samaritan defense provides civil immunity to people who apply an AED, a person or entity may not be entitled to civil immunity for negligently failing to acquire and make available an AED when required to do so by law. Further, a person or business who acquires an AED and fails to use it when a person is experiencing symptoms of cardiac arrest may not be entitled to civil immunity. The Supreme Court of Florida elaborated, “[A]cquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used. Limones v. Sch. Dist., 161 So. 3d 384, 393 (Fla. 2015).
Absent a statutory duty to acquire and make available an AED, a business owner will most likely not be liable for the failure to do so. While South Carolina courts have not addressed the issue directly, many states have. In 2014, the Supreme Court of California stated,
[T]o date every state appellate court that has confronted the legal question that is before us in this case—namely, whether a business’s common law duty to assist patrons who become ill on the business’s premises includes a duty to acquire and make available an AED—has concluded that the business’s common law duty does not impose such an obligation.
Verdugo v. Target Corp., 59 Cal. 4th 312, 343, 173 Cal. Rptr. 3d 662, 686, 327 P.3d 774, 794 (2014).
While there may not be a common law duty to acquire and make available an AED, some states have enacted statutes requiring certain types of businesses to ensure they have an operable AED on site. The New York Supreme Court, Appellate Division held that a health club “had an affirmative duty pursuant to General Business Law § 627-a to ensure that it had a working AED on site.” Diniro v. Aspen Athletic Club, LLC, 2019 NY Slip Op 04858, ¶ 1, 173 A.D.3d 1789, 1789-90, 104 N.Y.S.3d 808, 810 (App. Div.). When a business acquires and makes available an AED, that business should take reasonable steps to ensure the operability of the AED.
Although one could reasonably foresee a person at a health club or a nursing home experiencing symptoms of cardiac arrest, business owners in South Carolina are not required by law to acquire an AED. While creating a statutory duty for certain businesses to acquire an AED may save thousands of lives, the legislature is likely hesitant to impose a risk of civil liability upon business owners. If a business does have an AED, that business should contact an attorney experienced in premises liability to best determine how to mitigate unnecessary risks.
Contributor: Justin Lawlor.