Friday, February 01, 2002
by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the February 2002 issue of the Journal
Question: I have purchased an automated external defibrillator. Does owning and operating this device create any special legal liability me?
>Answer: An automated external defibrillator (AED) is a device used to administer an electric shock through the chest wall to the heart. Built-in computers assess the patient's heart rhythm, judge whether defibrillation is needed and then administer the shock. Audible and/or visual prompts guide the user through the process.
The potential liability concerns have been addressed by the Michigan Legislature. MCLA 691.1504, effective Nov. 16, 1999, provides limited immunity to those who use and make available AEDs in Michigan. The act specifically provides that an individual who, having no duty to do so, in good faith voluntarily renders emergency services to another individual using an AED is not liable in a civil action for damages resulting from an act or omission in rendering the emergency services using the AED, except an act or omission that constitutes gross negligence or willful and wanton misconduct. The immunity also extends to the instructor on AED usage, and the owner, occupant, or manager of the property on which the AED is located or used. This is fairly extensive immunity legislation and should protect dental offices.
The exception of gross negligence or willful and wanton misconduct is not defined in the statute. These terms have, however, been defined in case law. "Gross negligence" essentially includes conduct that is "so reckless that it demonstrates a substantial lack of concern for whether an injury will result." "Willful" and "wanton" have been defined as being reckless to the point of actually intending harm. This is a very high standard and it is inconceivable that any dental office would lose immunity based on this exception.
Congress has also addressed the issue. Federal legislation provides immunity for persons providing or using the AEDs to the extent that those persons are not already protected under their own state's laws. The Michigan statutory immunity is broader than the immunity granted by the federal legislation.
Appellate court decisions regarding AEDs and liability exposure are sparse. This is due in part to the fact that the use of AEDs outside of the medical setting is a relatively new procedure, and appellate cases take years to flow through the system. The cases that have been reported, however, are based on liability for the absence of or failure to use an AED. In one case, an airline passenger suffered a heart attack and it was claimed that the passenger's death could have been avoided if the airline had an AED on board. This case preceded immunity legislation, and the court refused to dismiss the plaintiff's claim. Another case involved a club member who suffered a fatal heart attack while playing tennis. The lawsuit asserted that the failure by a club employee to use an AED led to the person's death. The court allowed the action to proceed.
Based on these cases, it appears that there is some judicial willingness to impose potential liability for failure to make AEDs available in certain settings. However, these cases are not precedent in Michigan. There are no known Michigan appellate court cases imposing liability for failure to have AEDs available.
Although anyone can file a lawsuit, the statutory immunity in Michigan, coupled with the public policy encouraging the use of AEDs, should provide strong support in defending any such claim.
It is only a matter of time before most health professionals have AEDs available in their offices and clinics to respond to life-threatening heart attacks.