Shock Value: How to Protect Your Company from a Negligence Lawsuit on Account of an AED (Automated External Defibrillator)
By Seyfarth Shaw LLP on May 17, 2018
POSTED IN WORKPLACE POLICIES AND PROCESSES, WORKPLACE SAFETY AND ENVIRONMENT
By Adam R. Young
Seyfarth Synopsis: Employers are widely installing AEDs to protect employees and visitors, but some states require strict compliance with AED regulations to insulate employers from tort liability.
Employers are Installing AEDs
Reports indicate that over 350,000 Americans suffer from sudden cardiac arrest each year, and approximately 95% of sudden cardiac arrest victims die before reaching the hospital. The majority who receive a defibrillation shock within four minutes of the event survive. Perhaps based in part on this data, federal and state laws have mandated the installation of Automated External Defibrillators (AEDs) in public and government buildings. Employers across the United States are installing AEDs to protect their employees, customers, and visitors. Many employers are promoting the business case for installing AED devices, particularly as key management employees across the workforce age and become statistically more likely to suffer such an event.
Plaintiffs’ lawyers consistently seek new ways to sue American businesses, especially with regard to novel tools for medical treatment. Adding AEDs at your workplace can have the unintended effect of new liabilities — tort liabilities based on an employees’ (1) failure to use the AED when an employee suffers a sudden cardiac arrest, or (2) failure to administer aid with the AED properly.
Imagine: your company has purchased an AED. A visiting customer suffers a cardiac arrest event and your employees scramble to retrieve the AED. Your employee calls 911 and uses the AED as he waits for paramedics to arrive. Unfortunately, the customer goes into a coma and passes away two days later. One year later, you learn that the late customer’s estate has sued the Company and you personally, alleging that you and the Company have been negligent in installing the AED and allowing an employee to operate it “improperly.”
Limited Civil Immunity
Most states have passed laws making employers immune for lawsuits related to the provision or omission of care with an AED. However, many of those laws, such as the Illinois AED Act, only provide immunity if the employer complies with each and every requirement in each statute’s laundry list of AED rules. Some examples of these mandatory rules include:
Training Requirements — anticipated rescuers need to be properly trained by certified instructors. Rescuers and instructors needs to be retrained periodically.
Settings and Maintenance — employers must select AEDs from an approved government list. AEDs must be set in the appropriate modes. They must be properly maintained and tested.
Notification — Employers must notify the proper authorities with specific data on their AEDs. After use in a medical emergency, employees must activate the emergency response system.
Limited Room for Error
The bullets above are examples of common requirements under state AED laws. Recent case law in Illinois, for instance, provides that if employers fail to comply with any single AED requirement, they could lose all immunity from negligence claims. Accordingly, courts have ruled that Illinois employers must comply with all training and notification requirements, or they face potential lawsuits related to employees’ misuse of AEDs.
All 50 states have their own requirements, which may vary considerably. Employers should consult with legal counsel to ensure that they comply with their state’s AED laws.