Today, all schools may choose to make automatic electronic defibrillators (AEDs) readily available, but what are the legal risks involved in using the devices? Should a school district be prepared to respond to legal challenges if its employees use the AEDs?
According to the American Heart Association, to date, no known judgments have been rendered against the operator of an AED for negligent or improper use. The Air & Space Lawyer (a publication of the American Bar Association) published an article opining the “liability claims associated with the negligent operation of AEDs are mitigated by the difficulty in establishing that the operator proximately caused harm to the victim….The AED operator is attempting to resuscitate an individual who, absent the AED, will likely remain dead.”
Ohio law provides qualified immunity for school district employees who are using an AED placed in the school (Ohio Revised Code (RC) 3313.717(C)). Also, Ohio’s long standing Good Samaritan Law (RC 2305.23) enables a range of non-traditional first responders to use AEDs for administering emergency care. Also, many AED manufacturers offer indemnification agreements to AED owners/ users in the event of product malfunction, although the terms vary by manufacturer. Finally, simply having an AED available isn’t enough. The AED must be tested and maintained with the batteries and pads replaced on a regular basis.
However, the possibility that liability claims may be successfully raised cannot be ruled out. For example, in 1996, Busch Gardens Theme Park was found negligent for not properly training its employees to provide emergency care and for failing to have essential medical equipment, including a defibrillator, on the premises. In that case, the plaintiff was awarded $500,000 in damages for the death of her teenage daughter at the amusement park. This is just one of many judgments that have been handed down as a result of not having equipment and properly trained individuals available in an emergency.
School districts must be aware that, in addition to having AEDs available, actually training (and re-training) employees in their proper use is equally important. RC 3313.6023 requires school districts who have chosen to make AEDs available in their schools to provide training in the use of AEDs to each person employed by the district. Training must be completed for all employees by July 1, 2018, and repeated once every five years thereafter.