Automated External Defibrillator Use and Liability – What’s Happening Now? - American Society of Employers - Michael Burns

Automated External Defibrillator Use and Liability – What’s Happening Now?

The number of companies choosing to install Automated External Defibrillators (AED) has grown considerably over the years. ASE’s 2017/18 Michigan Policies and Benefits Survey showed over 73% of employers have one or more AEDs on-site. AEDs are life savers. There are over 350,000 cardiac arrest incidents each year. OSHA reported that about 10,000 of these occurrences happened at work.  It is estimated that 95% of those persons die before reaching the hospital. However, if a person in cardiac arrest receives an AED shock within four minutes of the event, a majority are reported to survive.

The American workforce is aging and by many media accounts is not in very good shape. This demographic not only compels employers to invest in the acquisition of AEDs, but to also invest in training employees to properly respond to medical emergencies in general, which includes training on the proper use of an AED.

Federal law requires AEDs be put in public and government buildings but not private facilities. The Occupational Safety and Health Administration (OSHA) strongly encourages the use of AEDs, however they are not required in the workplace as of yet. What is required though, is first aid training for workers if the location of the worksite is not within a reasonable distance from a hospital. What is a reasonable distance? This has been interpreted by OSHA to mean just 4-5 minutes away. What does OSHA define as “first aid”?  This includes training in CPR but not AED use. In 2004 OSHA issued an Interpretation Letter that states AEDs and training are a necessary employer best practice. To date however, no formal OSHA rules require having AED devices and training.

A 2017 study conducted by the American Heart Association and Edelman Intelligence found:

  • More than half (55%) cannot get first-aid or CPR + AED training from their employer — and even if employers do offer this training, it's often either one or the other.

  • Half of all U.S. workers cannot locate the AED at work. In the hospitality industry, that number rises to two-thirds (66%).

  • Employees may be relying on their untrained peers in the event of an emergency, leaving employees with a false sense of security that someone in the workplace will be qualified and able to respond.

Several years ago, ASE’s EPTW reported on the prevalence of lawsuits where a business did not have an AED onsite and a visitor died of cardiac arrest before paramedics could arrive. The store where this happened ironically sold AED’s but did not have one ready for use or anyone trained to use it.

Today, lawsuits involve other issues:  1.)  when the victim dies, whether the person who used the available AED knew or should have known how to use it properly and 2.) failing to use the available AED when an employee suffers a sudden cardiac arrest. No good deed goes unpunished so the saying goes.  It’s also important to note, that not all cardiac events are treatable with a shock from an AED device.

In response to lawsuits arising out of good faith attempts to help, states have been shoring up their Good Samaritan laws extending immunity to the parties provided they comply with each and every requirement in the particular state’s statute. Most of the Good Samaritan laws addressing AED use require training, setting up and maintaining the AED, and following notification requirements.

As pertaining to AED use, Michigan’s Good Samaritan law which has been on its books since 1986 reads:

691.1504 Rendering of cardiopulmonary resuscitation; applicability of subsection (1) to civil actions; use of automated external defibrillator; applicability of subsections (3) and (4).

Sec. 4.

(1) Subject to subsection (2), an individual who having no duty to do so in good faith voluntarily renders cardiopulmonary resuscitation to another individual is not liable in a civil action for damages resulting from an act or omission in rendering the cardiopulmonary resuscitation, except an act or omission that constitutes gross negligence or willful and wanton misconduct.

(2) Subsection (1) applies only to a civil action that is filed or pending on or after May 1, 1986.

(3) Subject to subsection (5), an individual who having no duty to do so in good faith voluntarily renders emergency services to another individual using an automated external defibrillator is not liable in a civil action for damages resulting from an act or omission in rendering the emergency services using the automated external defibrillator, except an act or omission that constitutes gross negligence or willful and wanton misconduct.

(4) Subject to subsection (5), the following persons are not liable in a civil action for damages resulting from an act or omission of an individual rendering emergency services using an automated external defibrillator as described in subsection (3), except if the person's actions constitute gross negligence or willful and wanton misconduct:

(a) A physician who provides medical authorization for use of an automated external defibrillator.

(b) An individual who instructs others in the use of an automated external defibrillator.

(c) An individual or entity that owns, occupies, or manages the premises where an automated external defibrillator is located or used.

(5) Subsections (3) and (4) apply only to a civil action that is filed or pending on or after the effective date of the amendatory act that added this subsection.

As ASE wrote in 2014, Employers are advised by the American Heart Association (AHA) and OSHA that when considering implementing AEDs at work:

  • Place your AEDs in visible and accessible locations – AEDs should be placed where they can be accessed quickly and easily in order to provide a response within 3-5 minutes. That factor will determine how many AEDs the employer will need to purchase. According to the AHA, most AEDs cost between $1,500 and $2,000.

  • Develop a training plan The employer needs to designate and train all employees who would be responders.  OSHA guidelines recommend a four-hour training program in both using an AED and providing CPR.  Employers should expect to train approximately 10 people for each AED installed. Annual training for responders is recommended not only as a refresher but also to train new responders needed as a result of employee turnover.

  • Implement an ongoing maintenance routine – Employers should implement a regular process, anywhere from weekly to monthly, to visually inspect the AEDs to ensure they are in working order.  This would supplement regularly scheduled, more detailed inspections recommend by the manufacturer. The manufacturer of the AED should provide information regarding software updates and/or upgrades.

 

  • Raise awareness of the program – After implementation of the program, employers should provide information to their employees detailing how the program works and who is a designated responder.  Communication should be an ongoing process to continually raise awareness of the program for both new and existing employees.

 

Sources: 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; CCH Benchmark: Preparedness for cardiac emergencies in the workplace; Will You Eventually Have to Keep Defibrillators on Site? Kristen Cifolelli (2014) Mondaq 5/29/14, OSHA 3185-09N 2003, American Heart Association Implementing an AED Program

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