JoAnn M. Eickhoff-Shemek, Ph.D., FACSM
President, Fitness Law Academy, LLC
Professor Emeritus, Exercise Science, University of South Florida
This following article was first published in the Fitness Law Academy’s newsletter in January 2021. It has been divided into two parts for our readers. It was written by Dr. JoAnn Eickhoff-Shemek, President of the Fitness Law Academy, LLC and Editor of its quarterly newsletter. Individuals can subscribe to this “free” newsletter by going to www.fitnesslawacademy.com.
All 50 states have Good Samaritan laws. These laws create an incentive for individuals, who voluntarily choose to render first aid to someone in peril, by providing immunity from civil liability. The option to render aid does not apply to individuals who have a legal obligation to do so as part of their job responsibilities. These laws vary by state. They generally protect volunteers from legal liability for accidental errors (ordinary negligence) causing further injury to the victim but not for acts that would be considered gross negligence or willful/wanton or reckless misconduct.
All 50 states have expanded Good Samaritan laws to provide similar civil liability protections for those who acquire or use an AED as part of a public access defibrillation program (1). In addition, at least 15 states* (listed at the end of this article) have enacted specific AED statutes requiring the placement of AEDs in fitness facilities (1). Definitions vary among these state statutes. For example, Illinois defines a “physical fitness facility” as serving 100 or more individuals and includes public indoor and outdoor facilities such as swimming pools, stadiums, and athletic fields or courts as well as indoor or outdoor facilities, whether public or private, that provide services or facilities focusing on cardiovascular exertion (2). New York defines “health club” as health spas, health studios, gymnasiums, weight control studios, martial arts and self-defense schools or any other commercial establishment offering a similar course of physical training with 500 or more members (3).
Immunity Provisions
The requirements, immunity provisions, and consequences for violations of these specific AED statutes also vary among states. For example, the Illinois statute (2) requires physical fitness facilities to:
(a) Have at least one AED (more depending on the size of the facility and number of users); for outdoor facilities, the AED must be in building within 300 feet of the activity/event being held
(b) Adopt and implement a written plan for responding to medical emergencies that complies with the Act; a copy of the plan must be filed with the Department of Public Health
(c) Provide training of facility staff on the role of CPR and the use of AEDs, e.g., completion of an ARC or AHA course
(d) Conduct proper testing and maintenance of every AED
The Illinois Act provides immunity, regarding the use or non-use of an AED, except for willful or wanton misconduct, provided the facility has met certain requirements of the Act. For example, if a facility did not provide staff training as required, the immunity provision will, likely, not protect the defendant (fitness facility). Penalties for violations of the Act include a written warning with the initial violation and fines of at least $1500 and $2000 for second and third violations, respectively.
In addition to fines for statutory violations, facility managers need to be aware of the many AED-related civil lawsuits (negligence and wrongful death) that have occurred. In a civil lawsuit, the plaintiff (injured party) has to prove that the defendant (e.g., fitness/sport facility) had a duty, breached that duty, and that the breach of duty caused the injury. If the plaintiff can prove all of these elements, the defendant may be found liable for monetary damages (compensatory damages) which, in some cases, are in the millions of dollars. If a defendant is found liable for gross negligence or willful/reckless misconduct, additional damages (punitive damages) can be awarded to the plaintiff on top of the compensatory damages.
In some of these civil lawsuits, the immunity provisions specified in the statute have protected defendants from liability. The New York statute, as in Illinois, provides immunity for non-use of an AED if certain requirements are met. In one New York case, Miglino v. Bally Total Fitness of Greater N.Y., Inc. (4), the court ruled there was no duty to use an AED although the statute required the health club to have one — it did not specify a requirement to use it. However, in another New York case, Diniro v. Aspen Athletic Club, LLC (5), the court agreed with the Miglino ruling that the statute did not require an AED be used during an emergency, but the statute required the facility to ensure that it had a working AED. In this case, the facility had two AEDs, both inoperable. The court stated, “the statute cannot be said to have been intended to insulate such clubs and employees from liability for the complete failure to have an operable AED available on site” (5, p. 1790).
Failure to Train Staff Members: A Potentially Costly Mistake
The failure to train staff members has been an issue in negligence lawsuits as demonstrated in Boggus obo Casey v. Texas Racquet & Spa, Inc. (6). In this case, the facility failed to meet the training requirements as specified in a Texas AED statute (Chapter 779 of the Texas Health and Safety Code) that states, in part:
(a) A person or entity that acquires an automated external defibrillator shall ensure that:
(1) each user of the automated external defibrillator receives training given or approved by the Department of State Health Services in:
(A) cardiopulmonary resuscitation; and
(B) use of the automated external defibrillator; and
(2) a licensed physician is involved in the training program to ensure compliance with the requirements of this chapter.
(b) The executive commissioner of the Health and Human Services Commission shall adopt rules establishing the minimum requirements for the training required by this section…” (p. 4).
The rules adopted under § 779.002 included: A person acquiring and/or using an AED shall successfully complete a training course in CPR and AED operation in accordance with the guidelines established by the device’s manufacturer and as approved by the American Heart Association, the American Red Cross, other nationally recognized associations, or the medical director of the local emergency medical services provider.
In this case, one of the club’s two owners testified that she was not aware of the training requirement, that she did not require training of any club employees, and that she did “nothing” to ensure that employees would use an AED when needed except “put them on the wall.” The court concluded that the club did not provide any evidence to show that it complied with Chapter 779’s AED training requirement. Thus, the club failed to meet its summary judgment burden to negate the breach of an applicable duty as a matter of law.
In a recent $13 million Oregon lawsuit, the widow of David L. Rutledge claimed that the gym failed to adequately train its lone employee who was working the morning of her husband’s death (7). He died while running on a treadmill at a 24 Hour Fitness facility. It appeared that the employee did not call EMS right away and had no idea where to find the AED. Oregon has a statute that requires a health club to have an AED (8) and another statute (9) that provides immunity provisions for health clubs that states, in part:
A person may not bring a cause of action against another person for damages for injury, death or loss that result from acts or omissions involving the use, attempted use or nonuse of an automated external defibrillator when the other person:
(a) Used or attempted to use an automated external defibrillator;
(b) Was present when an automated external defibrillator was used or should have been used;
(c) Provided training in the use of an automated external defibrillator;
If the employee had used or attempted to use the AED and if the facility had provided staff training on its use, these immunity provisions would likely protect 24 Hour Fitness from liability. However, given these failures, it is likely the facility may be liable for Mr. Rutledge’s death. This case is pending.
*15 States (with AED statutes for fitness facilities): Arkansas, California, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Oregon, Pennsylvania, and Rode Island
Part 2 of this article will describe how courts determine duty, AED standards of practice published by professional organizations, and AED risk management strategies including a website where you can access your state’s AED statutes. Check this site in 2 weeks.
References
1. AED State Laws. AED Brands. Available at:
https://www.aedbrands.com/resource-center/choose/aed- state-laws/. Accessed January 27, 2021.
- Physical Fitness Facility Medical Emergency Preparedness Act, 210 ILCS 74/1 – 74/45, 2005.
- Automated External Defibrillator Requirements. NY Gen Bus § 627-a.
- Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342 (2013).
- Diniro v. Aspen Athletic Club, LLC, 173 A.D.3d 1789 (N.Y. App. 4th, 2019).
- 6. Boggus obo Casey v. Texas Racquet & Spa, Inc. 2018 WL 3911090 (Tex. App;, 2018).
- Miller JR. Gym Hit with $13M Lawsuit after Engineer Died on Treadmill – One Day Before Retirement. January 25, 2019. Available at: 24 Hour Fitness hit with $13M suit after man’s death (nypost.com) Accessed January 27, 2021.
- Health Clubs; Automated External Defibrillators; Requirements; Exceptions. O.R.S. § 431A.450.
- Automated External Defibrillator; Use in Public Setting; Immunity from Liability. O.S.R. § 30.802.
Photo Credit: Thanks to Leon Brocard via Flickr.