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.
Part 1 of this two-part article provided an overview of AED statutes applicable to fitness facilities. These statutes provide definitions, requirements (e.g., having an AED, staff training, and testing/maintenance of the AED), and immunity provisions. Several negligence cases were briefly described in which the court addressed these specifications within these statutes. Part 2 describes how courts determine duty, AED standards of practice published by professional organizations, and AED risk management strategies.
Courts Determine Duty
As evident from the cases described in Part 1, courts review requirements within AED statutes to determine “duties” of a facility. Statutes may specify no duty to use an AED, but other requirements within the statutes may reflect certain duties such as having an operable AED and training of staff members. In addition to duties specified in statutory laws, courts also examine the relationship between a plaintiff and the defendant to determine the duties of the defendant. Facility managers need to be aware of the court rulings in these cases, as demonstrated in a Florida case. In this case, the Florida Supreme Court ruled that a school district had a duty to use an AED because of the special relationship between a student-athlete and the school district. The Court also referenced a specific statute (F.S.A. 1006.165) requiring members of the Florida High School Athletic Association to have an operational AED on school property and to train employees or volunteers who are reasonably expected to use the device. This statute was amended with additional requirements, effective July 1, 2020 (10).
In this case (11), a high school student-athlete collapsed while playing in a soccer match. CPR was administered. An AED was on a golf cart at the far end of the field, but it was unbeknownst to coaches and others. Ten minutes after the athlete’s collapse, EMS arrived and used their own AED but to no avail. The athlete survived but suffered severe disabilities requiring life-long, 24-hour care. Regarding the special relationship that exists between schools and their students, the Court stated, “a school functions at least partially in the place of parents during the school day and school-sponsored activities” (p, 390). Given this special relationship, the Court stated that schools have a duty regarding the supervision of student athletes to “take appropriate measures after a student is injured to prevent aggravation of the injury” (p. 390) and that the school district failed to carry out this duty when it did not use the AED.
The Court then addressed whether the school district was statutorily immune from a civil lawsuit. The Court identified two classes protected from liability by Florida’s Good Samaritan statute: (a) users or attempted users, and (b) acquirers. Acquirers are immune from harm that may result only when an AED is actually used or attempted to be used. Therefore, the school district was not entitled to immunity because it did not use or attempt to use the AED. If they had simply used or attempted to use the AED, even if the student-athlete died, they might not have been found liable.
Published Standards of Practice
In addition to determining duties based on substantive law (statutory, administrative, and case law) and special relationships, courts may determine duties of defendants based on safety standards of practice (e.g., standards, guidelines, and position statements) published by professional organizations. Although these publications do not reflect laws, it is important to understand their potential legal impact. Most courts allow these types of publications to be introduced as admissible evidence (usually via expert testimony) and will consider them when determining duty. If the judge or jury accepts the expert testimony, then the published standards of practice become standards of care or duties.
As stated by an appellate court (12), industry safety standards are not substantive law but can be admitted as evidence to establish the standard of care (or duty) in civil lawsuits. Failing to follow these safety standards of practice can lead to facilities being liable for a plaintiff’s injury or death. Standards of practice related to AEDs, such as the ACSM/AHA joint position statement recommending AEDs in health clubs (13) and/or the ACSM’s Health/Fitness Facility Standards and Guidelines (14) have been introduced as evidence in court cases (15, 16, 17) by plaintiffs or a plaintiff’s expert witness.
Because such standards of practice can be admitted into evidence to help courts determine duty, it is important to follow them. For example, ACSM’s Health/Fitness Facility Standards and Guidelines (14) contains eight standards and two guidelines pertaining to emergency planning and policies. The standards describe several requirements, such as having (a) written emergency response policies and procedures, (b) an adequate number of AEDs located in the facility to allow a time of three-five minutes from collapse to defibrillation, (c) practice sessions at least every six months, and (d) a staff member who is trained and certified in CPR and AED on duty during all operating hours .
Regarding practice or training sessions, other professional organizations such as the NSCA(18) and Medical Fitness Association (19) recommend practice sessions four times per year. In these trainings, it is essential that fitness managers/supervisors assess the knowledge and skills of staff members to help ensure they can properly respond in a medical emergency. It is also wise to document training sessions. Documentation will help serve as evidence that trainings did take place if the facility is named as a defendant in lawsuit.
AED Risk Management Strategies
There are several risk management steps that fitness facility mangers and exercise professionals can take to save lives and help minimize legal liability associated with AEDs. These include:
- Know your state’s AED statute(s). (a) Go to: AED Defibrillator State Laws & Legislation – Learn AED Laws in Your Area! (aedbrands.com), (b) Select “Resource Center” and then “Requirements“, and (c) Click on your state on the map and scroll down to access the AED statutes. Note: This site appears to be up-to-date, but there is no guarantee.
- Consult with your lawyer. Your lawyer can interpret your state’s AED fitness facility statute and any related administrative codes as well as research other applicable AED laws. For example, Texas does not have a specific AED statute for fitness facilities, but as demonstrated in Boggus obo Casey, other AED statutes may be applicable to fitness facilities. Your lawyer can also research case law in your state to review the rulings of courts in AED cases. These rulings reflect the law that future courts will, likely, acknowledge.
- Know your AED standards of practice published by professional organizations.
- Develop written AED policies and procedures, as part of your facility’s Emergency Action Plan (EAP), that reflect AED statutory requirements and AED standards of practice published by professional organizations. Post a brief summary of the EAP in key locations within the facility.
- Provide high quality staff trainings (rehearsals) on a regular basis throughout the year to help ensure staff members have the knowledge/skills needed to respond in a medical emergency properly and quickly.
- Document all staff trainings (e.g., dates/times, content covered/practiced, names of staff members attending) as well as other requirements in statutes and standards of practice such as CPR/AED certifications of staff members.
- Wellbeing of Students Participating in Extracurricular Activities; Training. FL ST § 1006.165. July 1, 2020.
- Limones v. School District of Lee County, 161 So.3d 384 (Fla., 2015).
- Elledge v. Richland/Lexington School District Five, 341 S.C. 473 (S.C. Ct. App., 2000).
- American College of Sports Medicine and American Heart Association Joint Position Statement. Automated External Defibrillators in Health/Fitness Facilities. Medicine and Science in Sports and Exercise, 34(3), 561-564, 2002.
- ACSM’s Health/Fitness Facility Standards and Guidelines. Sanders ME. (ed). 5th Ed. Champaign, IL: Human Kinetics, 2019.
- Zihlman v. Wichita Falls YMCA, In: Herbert DL. New AED Case Filed Against YMCA in Texas. The Exercise Standards and Malpractice Reporter, 24(5), 74-79, 2010.
- Miglino v. Bally Total Fitness of Greater N.Y., Inc., 92 A.D.3d 148 (N.Y App. Div. 2011).
- L.A. Fitness International, LLC v. Mayer, 980 So. 2d 550 (Fla. Dist. Ct. App., 2008).
- NSCA Strength and Conditioning Professional Standards and Guidelines. Strength and Conditioning Journal, 39(6), 1-24, 2017. Available at: https://www.nsca.com/education/articles/nsca-strength-and-conditioning-professional-standards-and-guidelines/. Accessed November 5, 2018.
- Medical Fitness Association’s Standards & Guidelines for Medical Fitness Center Facilities, Roy B. (ed.). 2nd Ed. Monterey, CA: Healthy Learning, 2013.