In New York, General Business Law §627-a requires that an automated external defibrillator (AED) be present in health clubs with at least 500 members, along with a trained operator to use it. And now a NY Appellate Court has ruled that this statute also means that the operator has a duty to use the machine to save someone’s life.
Here are the facts of the case: In 2007, Gregory C. Miglino Sr., who was in his late 60s, collapsed while playing racquetball at Suffolk County Bally Total Fitness in Lake Grove. Kenneth LaGrega, a personal trainer qualified to use the AED, found Mr. Miglino lying on his back, breathing heavily and with a faint pulse but with normal color. Another Bally worker brought the AED to Mr. Miglino’s side, but apparently La Grega did not use the device; he says because there was a doctor and a medical student attending to the club member and he di not want to intervene. Mr. Miglino was pronounced dead after being taken to the hospital at 7:45 a.m.
In 2008, Gregory Miglino Jr. filed a wrongful death action against both Bally Total Fitness of Greater New York—the owner and operator of the club—and Bally Total Fitness Corporation.
Bally’s sought dismissal of the lawsuit under NY’s Good Samaritan” Law, Public Health Law §3000-a, which establishes immunity from suit for medical professionals and others who offer treatment in an emergency, including entities and individuals who make defibrillators available as long as they are not “grossly negligent.”
But the Second Department said that the General Business Law trumps the Good Samaritan Law:
“[W]hy statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?” Justice Sandra L. Sgroi (See Profile) asked rhetorically in Miglino v. Bally Total Fitness of Greater New York, 06556-2010.
The court upheld a lower courts refusal to dismiss the case which will now proceed to trial. At trial, a jury could still determine that the Bally’s employee acted reasonable under the circumstances, but would have to consider that the law placed an affirmative duty on him to act.
What makes this so troubling is that the First Department in a similar case granted a motion for summary judgment by a health club whose patron suffered a fatal heart attack when the club did not use an available AED. That court in Digiulio v. Gran, 74 AD3d 450, said that the club had no common law duty to use the defibrillator and “could not be held liable for not doing so.” It also rejected the plaintiff’s argument that General Business Law §627-a implicitly obligated the club to use the device. So, right now, in NY and the Bronx (First Dep’t) you don’t have to use the device but in Queens, Brooklyn, Staten Island, Long Island, Westchester, Rockland, Putnam and Orange (Second Dep’t) you do.
One of two things must now happen. Either the State Legislature needs to clarify whether it intended to place this duty to use the AED on gym owners when it passed GBL 627-a by amending it to make its position clear or the NY’s highest court, the Court of Appeals, will have to break the tie. The Court affirmed the First Dep’t but did not explicitly have to deal with the issue of whether 627-a created a duty to act.
I expect Bally’s to appeal, so the Court should decide this sometime in 2013. I don’t expect the NY State Legislature to act before then. In my opinion, the First Dep’t got it right because statutes that change the common law and place a duty where one never existed before are supposed to be very strictly construed. Since the statute specifically created a duty to house an AED but did not specifically create a duty to use it, I think the Court will say the law did not impose one. The Second Dep’t in discussing this issue stated:
[S]uch strict construction should not be utilized to eviscerate the very purpose for which the legislation was enacted.” Here, given the law’s undisputed requirements, it would be “anomalous to conclude that there is no duty to use the device should the need arise”
The court could not seem to find a reason why the law would require an AED to be present but not require its use. That’s easy – having AEDs around increases the chances that someone who is familiar with its use can use it.
I only know this – gym owners around the state are probably feeling that they could need to have that AED device around for themselves as I am sure this decision is going to give some of the them heart palpitations.