What to Look For in AED LawsJuly 15th, 2013
AED Law Information Series – Part 1
WHAT TO LOOK FOR IN AED LAWS
The primary goal of AED programs is to save lives. But accurately understanding applicable AED laws is a key task for AED program managers if they are going to operate an effective program and take the right steps to manage legal liability risks. AED laws have been passed in one form or another in all states leading many to falsely believe sufficient immunity protection is available if needed. Read on as we dispel some of the myths surrounding AED laws and give you the facts to effectively navigate them.
While content varies widely from state to state, AED laws generally include two kinds of provisions, those that impose operational requirements on AED programs and those that describe who may qualify for Good Samaritan immunity protection and under what circumstances. This blog post focuses on the attributes of Good Samaritan immunity and the limited linkage that exists between immunity provisions and those relating to operational requirements.
Regardless of what AED laws say, the most important thing for AED program managers to focus on is getting and staying operationally ready to respond to sudden cardiac arrest (SCA) emergencies. This approach will save more lives and manage more risk than AED laws will.
People Who May Qualify for Immunity Protection
AED laws may offer immunity program to some, all, or none of the four groups involved in setting up and operating AED programs. Those AED program constituents who may be covered by an AED law include (various laws may use differing words to describe these constituents):
- People who own AEDs or are responsible for AED program sites
- AED users, which may include trained and/or untrained users
- AED trainers
- AED program medical directors
Not every law covers every constituent.
Degree of Misconduct That May Qualify for Immunity Protection
The degree of misconduct found in the world of negligence law can be characterized along a continuum ranging from non-negligent conduct to intentional misconduct. This continuum is shown in the following chart (different states sometimes use different words but the concept is the same):
By definition, Good Samaritan laws make it more difficult to sue those involved with AED programs by protecting certain levels of misconduct from liability. The level of protection varies widely from state to state. Meaningful immunity laws typically protect misconduct rising at least to the level of ordinary negligence. For example, a law may protect all but “acts of gross negligence or willful or wanton misconduct.” Laws that protect negligent misconduct (or worse) offer a helpful layer of risk management protection if all other attributes of the law are met.
An example of ordinary negligence might be a bystander’s failure to use an AED because an SCA victim is wrongly believed to have a pulse. An example of gross negligence might be the removal of an AED battery because a person nearby is bothered by the device’s audible alerts signaling the battery is in need of replacement.
While some states offer meaningful immunity protection, others offer only “fictional immunity” that applies only to those who act “as an ordinary, reasonably prudent person would have acted under the same or similar circumstances.” Thus, only reasonable – or non-negligent – conduct is protected in these states. Levels of misconduct, including ordinary negligence and beyond, are not protected at all. These types of laws create the perception that immunity protection is available, though in reality it is not.
The statutory language in a number of states is unclear creating uncertainty about the degree of misconduct that may qualify for immunity protection. In these states, it will take lawyers, juries, and judges to decide the scope of immunity coverage only after a lawsuit happens.
AED Program Activities That May Qualify for Immunity Protection
Many activities take place within an AED program long before an AED is ever retrieved for use in an actual SCA emergency. Examples include deciding how many AEDs to buy, putting AEDs in various placement locations, maintaining equipment, training, developing policies, and many more. Some of these activities will influence or impact how an organization responds during SCA events. Yet, most state AED laws appear to cover only actions related to the use of an AED. AED program preparation and response activities not involving the use of an AED appear to be excluded from coverage. This approach creates a huge gap in AED program immunity protection.
Operational Requirements Specified in AED Laws
Most state AED laws impose operational requirements on AED programs and their constituents. Types of requirements may include:
- Agency notification
- Medical direction
Some states require compliance with these operational requirements as a condition of immunity (that is, immunity is only available if the AED program has done those things a law requires). For example, some AED laws require that AED programs notify a local emergency medical services agency that it has AEDs and where they are. Immunity protection may not be available if the AED program fails to comply with this notification requirement even if the agency does nothing with the information (as is the case almost everywhere).
How You Can Effectively Navigate Your State’s AED Laws
- Find out if meaningful Good Samaritan immunity protection is available in your state(s). You can subscribe to ReadiSource where we provide current AED laws for all states along with informative profiles and AED Law Report Cards that will help you quickly find this information.
- Thoughtfully design your AED program to match the type and size of your organization, and fully document your AED program design and operating policies.
- Ensure that you have an operationally ready AED program as that is the best risk management strategy. By achieving AED program operational excellence, you will hopefully never have to worry about lawsuits or immunity. In fact, if Good Samaritan immunity is needed by your lawyers as a defense to a negligence lawsuit, it is already too late.
Watch for Part 2 of our AED Law Information Series coming soon to this blog.