The NY legislature several years ago required larger gyms (500+ members)to have defibrillators posted through their facility as well as staff trained in their use. So a few years ago, when Eric Miglino Sr. died after suffering a heart attack in his gym playing racquetball, his son Eric Jr. sued Bally Total Fitness because none of their personnel tried to use the defibrillator to stop his heart attack. While club employees produced the defibrillator and a club employee who received American Heart Association-sanctioned training in using the device was present, the device was not employed. The trained club employee testified that he did not use it because a doctor and a medical student at the club the morning Miglino was stricken responded to a call for help and he deferred to their expertise.
Though Miglino won in the lower courts, the Court of Appeals, NY ‘s highest court, ruled this month that the law only requires gyms to have the devices on site, but that requirement does not force the employees to use them even though they are trained to do so. This is the result I predicted and talked about on this blog when the first case was reported. To hold otherwise would place a duty to act on employees where the statute does not do so.
Both the General Municipal Law and so-called Good Samaritan statute, Public Health Law §3000, which absolves emergency health care givers from liability except for gross negligence, use the words “volunteer” and “voluntarily” to describe revival efforts described in the statutes, Justice Susan Phillips Read wrote for the majority.That language evinces “the Legislature’s intent to protect health clubs and their employees from the risk of liability for ordinary negligence with respect to AEDs,” Read added. Without specific language in the law, the Court felt it could not impose this duty on gym owners.
The lone dissent was Judge Jonathan Lippman who stated “It should go without saying that the presence of an AED will be of no benefit whatsoever to a person in cardiac arrest unless, of course, it is actually used.” He said the General Business Law §627-a should be read in tandem with the Good Samaritan statute to impose such a duty on the health clubs, with the understanding that people offering voluntary, good faith emergency aid not be held liable for damages except if gross negligence is involved. Lippman said the law should be interpreted in a way that is “consistent with its spirit and benevolent aim.” “The majority opinion, however, does the opposite,” Lippman wrote. “As read by the majority, the Legislature enacted an essentially purposeless statute that requires health clubs to purchase AEDs and train employees to use them, but does not require that the devices be applied in any potentially life saving situation.”
But I disagree with Judge Lippman’s analysis. The law is not meaningless; it increases the presence of AEDs and of trained personnel. It makes it more likely that folks will volunteer to help someone afflicted and that they will have the requisite training to do so. But this decision is less about what’s right or wrong with respect to use of AEDs; it comes down to simple statutory construction. As I tell my first year law students, there is a Latin maxim regarding statutory construction which states inclusion unis est exclusion alteris “inclusion of one thing means the exclusion of another.” By placing a duty on gym owners to have AEDs and a duty to have trained personnel, they specifically excluded placing a duty to use the AEDs. Regardless of whether we or the Court think it would be sound public policy to place that duty on gym owners, it is for the Legislature to do so and not the Court. Let’s see if they react to the decision by amending the statute.