Good Samaritan Laws: The Shocking Truth

Paris Hotel and Casino  Las Vegas, Nevada
Good Samaritan Laws
The Shocking Truth
Presented by:
Steven B. Tannenbaum, Esq.
Presenter Disclosure
1. No Faculty Memberships
2. Good Samaritan Laws: The Shocking
3. No Commercial Interests
4. No relevant financial relationships exist.
Presenter Disclosure
Steven B. Tannenbaum, Esq.
Good Samaritan Laws: The Shocking Truth
 No relationship with any commercial supporter
No unlabeled or unapproved uses will be
discussed in this presentation
Good Samaritan Laws and AED Usage Liability:
The Shocking Truth
• Steven B. Tannenbaum, Esq.
• Board of Directors, Parent Heart Watch
• Board of Directors, Louis J. Acompora
Memorial Foundation
• Board of Directors, Dominic A. Murray 21
Memorial Foundation
• Past Board Chair, SCAA
• Sudden Cardiac Arrest Survivor 5/6/09
My “Good Samaritans”
• Dedicated to:
• Paula Daskalakis
• Sue Lippman
• Nassau County Police Department
• My “Angels”
• Canada's emergency room doctors
are speaking out about the
responsibility of citizens when they
encounter someone who is in cardiac
• "It is now no longer socially or
morally acceptable to do nothing in
the face of cardiac arrest," said Dr.
Christian Vaillancourt.
Our Organizations’ Goals
Public Education and Awareness and
Heart Screenings
Teach the Links in the Chain of Survival
Teach and encourage the use of CPR
Teach and encourage the use of AEDs
Save lives!
This Has To
Encouraging CPR Training in our
• As of 2010, 36 states had a law or
curriculum standard encouraging CPR
training in schools.
• Training all secondary education students
will add a million trained rescuers to the
population every few years.
• These students can save lives at home, at
schools, malls, health clubs, etc.
The Effect of Bystander CPR
• Currently, only about 30% of out of hospital SCA
victims receive CPR.
• Most untrained bystanders hesitate to help a
cardiac arrest victim.
• Research shows that bystanders, trained in CPR
are much more likely to take action.
• With activation of 911, early bystander CPR,
rapid defibrillation, effective advanced life
support and integrated post-resuscitation,
survival rates following SCA can exceed 50%.
Barriers to our goals
Public Apathy and lack of education.
Bystander Reluctance-Fear of failure.
“I can call 911.” “It’s not my responsibility.”
“I work in a building where there are doctors”
Disease transmission“yuck factor” despite no
reported cases of HIV or hepatitis through CPR.
The Legislative Dilema
• All states have passed legislation that
protects lay rescuers, but
• 1. There is no unified legislation on this
• 2. There is great variability of Good
Samaritan protection from state to state,
creating confusion and/or deterrence to lay
rescuers; and
• An excuse not to deploy AEDs!
Role of the Law
• An organized society’s attempt to define
an individual’s personal rights and his/her
responsibilities towards others.
• To further that society’s goals.
• To deter inappropriate conduct.
• To encourage appropriate conduct.
• To establish reliable and enforceable
guidelines to govern people’s conduct.
Legal Definitions
• The Good Samaritan Rule is a doctrine of law
which gives legal protection to a person who
comes to the aid of an injured or ill person,
without expectation of compensation, from being
liable for negligence as long as the volunteer
aid-giver acted with reasonable care. And
without gross negligence.
• The Good Samaritan doctrine is legislated to
encourage Good Samaritans to come to the aid
of others.
Purpose of The Good
Samaritan Law
• Reduce the reluctance of bystanders to help an
injured or ill person for fear of being sued for
causing death or injury.
• Encourage people to come to the aid of others
without concern for litigation. (No good deed
goes unpunished!)
• There is no duty, as a Good Samaritan to come
to the aid of a sick or injured person in any State
in our country.
The Good Samaritan Defense
• The most common ingredients for successful
invocation of the Good Samaritan doctrine are:
• (1) the care rendered was performed voluntarily,
as the result of the emergency, without
expectation of compensation;
• (2) the initial emergency or injury was not
caused by the person invoking the defense, and
• 3) the emergency care was not given in a
grossly negligent or reckless manner.
Federal Cardiac Arrest
Survival Act 2002 (CASA)
• Conditional immunity from legal liability for
harm resulting from AED use by lay
responders in out of hospital settings.
• CASA supersedes State law to the extent
necessary to protect AED users or
acquirers, but States can enact broader
State Law
• All 50 States have Good Samaritan Laws
that match or supersede CASA regulations
and generally address:
• Good Samaritan Immunity
• Medical oversight (PADs)
• AED training and maintenance
• Post event reporting
States with AED Mandates
1. Arizona: State Owned Buildings newly
constructed or major renovation
2. California: Health Clubs
3. Nevada: Public Schools, Airports, Event
Centers, State & County Buildings
4. Texas: Public Schools
5. Washington: Dental Offices
Additional related legislation
• AEDS required in public schools
• Pennsylvania, NY, Nevada, California, Florida, Maine,
Mass., N.J., Rhode Island, Virginia, Delaware and
• AEDs in selected Health Clubs
• Illinois, N.Y., Rhode Island, California, Louisiana,
• AEDs in public buildings
• Arizona, California, Nevada, New York, New Jersey.
• 35 states require the registration of
AEDs with local authorities.
• This process is different in each state.
• Process can be quite difficult and
• Result: Confusion and Excuses not to
purchase AEDs.
Current problems in the Law
• Some states limit AED usage to trained
responders only. 7 states, including N.Y.
prohibit AED use by untrained operators.
• Some states have Good Samaritan Laws
protecting only trained responders.
• Some states require physician supervision
over AED owners
What is Negligence?
• Negligence is the existence of a duty or
obligation recognized by law.
• It is a failure to conform to that duty or a failure
to use reasonable care under the
• It can be the failure to do what a reasonable
person would do under similar circumstances.
• It can be doing something that a reasonable
would not do under similar circumstances.
• The negligence must be a proximate cause or
substantial contributing factor to an injury or
death. (How can that occur in a case of SCA?)
What is Gross Negligence?
• Gross negligence is a conscious and voluntary
disregard of the need to use reasonable care.
• It is conduct which is likely to cause foreseeable
grave injury or harm.
• It is conduct that is extreme when compared
with ordinary negligence, which is a mere failure
to exercise reasonable care.
• If you do what you have been taught to do in a
CPR/AED course, you will not be deemed to
have been grossly negligent if your attempt to
give care to a person in distress fails.
• You can’t cause further injury to a dead person!
New York Good Samaritan Act
• NYS Public Health Law, Article 30 - Emergency Medical
Services ;3000-a.
…any person who voluntarily and without expectation of monetary
compensation renders first aid or emergency treatment at the scene
of an accident or other emergency outside a hospital, doctor's office
or any other place having proper and necessary medical equipment,
to a person who is unconscious, ill, or injured, shall not be liable for
damages for injuries alleged to have been sustained by such person
or for damages for the death of such person alleged to have
occurred by reason of an act or omission in the rendering of such
emergency treatment unless it is established that such injuries were
or such death was caused by gross negligence on the part of such
person. Nothing in this section shall be deemed or construed to
relieve a licensed physician, dentist, nurse, physical therapist or
registered physician's assistant from liability for damages for injuries
or death caused by an act or omission on the part of such person
while rendering professional services in the normal and ordinary
course of his or her practice.
In N.Y. …
• “No person may operate an AED unless
the person has successfully completed a
training course in the operation of an AED
approved by a nationally recognized
organization or the state emergency
medical services council.” NY Public
Health Law 3000-b.
Texas Good Samaritan Law
• Section 74.002.
• Persons not licensed in the healing arts who in
good faith administer emergency care as
emergency medical service personnel are not
liable in civil damages for an act performed in
administering the care unless the act is willfully
or wantonly negligent. This section applies
without regard to whether the care is provided
for or in expectation of remuneration.
• (V.A.C.S. Art. 1a (part).)
California CPR/AED Law
• Section 1714.21 of the Civil Code.
• A person who has completed a basic CPR and AED use
course that complies with regulations adopted by the
Emergency Medical Services (EMS) Authority and the
standards of the American Heart Association or the American
Red Cross for CPR and AED use, and who, in good faith and
not for compensation, renders emergency care or treatment
by the use of an AED at the scene of an emergency shall not
be liable for any civil damages resulting from any acts or
omissions in rendering the emergency care.
A person or entity who provides CPR and AED training to
a person who renders emergency care pursuant to
subdivision (b) shall not be liable for any civil damages
resulting from any acts or omissions of the person rendering
the emergency care.
California AED Law
• (d) A physician who is involved with the
placement of an AED and any person or entity
responsible for the site where an AED is
located shall not be liable for any civil damages
resulting from any acts or omissions of a person
who renders emergency care
• (e) The protections specified in this section shall
not apply in the case of personal injury or
wrongful death that results from the gross
negligence or willful or wanton misconduct of the
person who renders emergency care or
treatment by the use of an AED.
Florida Good Samaritan Law
Good Samaritan Act; immunity from civil liability.—
(2)(a) Any person, including those licensed to practice
medicine, who gratuitously and in good faith renders
emergency care or treatment either in direct response to
emergency situations at the scene of an emergency
outside of a hospital, doctor's office, or other place
having proper medical equipment, without objection of
the injured victim or victims thereof, shall not be held
liable for any civil damages as a result of such care or
treatment or as a result of any act or failure to act in
providing or arranging further medical treatment where
the person acts as an ordinary reasonably prudent
person would have acted under the same or similar
Mayer v. L.A. Fitness(Florida)
April 2008
• Decedent died of SCA while
• No Florida law requiring AEDs in
• Trained employee did not perform
• No AED on the premises
Florida Court’s Rulings
• Owner must only take minimal steps to
safeguard patron, but no duty to perform
medical rescue procedures. Must summon
medical help within a reasonable time.
• CPR or Heimlich is not in business
owner’s duty to render aid.
• Florida’s CASA does not require AEDs in
any building or location nor a requirement
to have persons trained in use of AEDs.
Abramson v. Ritz Carlton (NJ)
• Owner's duty was discharged when
medical help was called.
• New Jersey Good Samaritan Act
immunizes those who provide
gratuitous assistance. N.J. Stat.
• Defendants did not have duty to have
oxygen or AED on its premises.
Michigan House Bill Oct. 2011
• “I want every school to have at least one
AED and I don’t want any hesitation by
any coach or school personnel in using the
device”. State Senator Rick Jones
• Immunity from liability for school
employees using an AED in the course of
their employment or at an extracurricular
school activity for damages resulting from
an act or omission in that performance.
Evolution of New York Law?
(As of 2012)
• DiGiulio v. NY Health & Racquet Club
• Mr. Digiulio collapses during a
• CPR started within 2-3 minutes
• Within 5 minutes paramedics use
• Pulse restored, but P died in hospital
4 months later.
Action/Inaction of Racquet Club
• Employee began CPR almost immediately
• Other employee trained to use AED did
not attempt to access it because cabinet
had a lock and he did not have key.
• He never tried to open cabinet or break
glass, but he searched for the key.
• BUT, the cabinet was never locked!
Appellate Division Decision
• No viable cause of action exists!
• “The risk of cardiac failure is inherent
when participating in intense sporting
activity or exercise”.“ BLAME THE
• The club could have fulfilled its duty by
simply calling 911 and they did CPR.
• Club was not under any legal duty to use
AED despite law requiring it’s presence!
What about GBL 627-a(1)?
• N.Y. requires gyms with more than 500
patrons to have an AED.
• “..Court does not construe the law as
imposing liability on health club which has
an accessible AED on premises but whose
employee exercises poor judgment in
attempting to access or use it.”
• In other words, no gross negligence!
Unanswered questions
• Does New York’s General Business Law
set forth an affirmative duty to use the
AED that clubs are required to provide?
• DiGiulio suddenly collapsed and EMS
documented “full cardiac arrest” but the
Court called it a “heart attack” and
apparently didn’t know the difference. Why
Miglino v. Bally Fitness
• P collapsed while playing racquetball.
• Employee was trained in AED and CPR,
but AED was not used.
• EMS called at 6:59 and arrived 7:07am.
• P found unconscious and unresponsive.
• EMS reported V-fib and decedent was
shocked, but could not be revived.
Court’s Rulings
• The bill would ensure a higher level of
safety for health club members.
• There is an affirmative (inherent) duty for
health clubs, pursuant to Statutory Law
GBL 627-a, to use AEDs and to have an
employee trained to use them.
• It is illogical, in light of New York statutory
law, to conclude that no such duty exists.
Effect of Good Samaritan Law
in New York
• The Good Samaritan Law still provides
protection to those using AEDs unless
there is gross negligence.
• Where the case is based on the failure to
use AED, where required by statute, the
gross negligence standard is not
applicable and defendant can be liable for
ordinary negligence.
How Will Miglino Affect Other
• Will the ruling encourage other states to
mandate placement of AEDs in more
• Will this ruling create a new standard of
care in terms of AED placement and
• Will the ruling encourage more use of
AEDs because failure to use them is
What is the trend?
Standard of Care
"AEDs are becoming an unofficial
standard of care, the debate isn't about
what happens if you have an AED and use
it improperly, but what happens if you don't
have an AED at all.“
Sandy Lovett, Senior AED associate with
the American Red Cross. – 2005
The Court of Appeals Speaks:
The Miglino Decision
• D appeals from Appellate Division Order
denying motion to dismiss complaint
pursuant to CPLR 3211 (a) (7) for failure to
state a cause of action.
• A.D. certified to the Court of Appeals the
following question: “Was the opinion and
order … properly made with respect to the
cause of action asserted against Bally?”
No Affirmative duty upon gyms to use AEDs
where the law requires their presence!
• …”the words ‘volunteer’ in GBL 627-a [1]
and ‘voluntarily’ in GBL 627-a [3] evince
Legislature’s intent to protect health clubs
and their employees from the risk of
liability for ordinary risk of negligence with
respect to AEDs.”(Business is protected!)
• What about the patrons who are
vigorously exercising and are at increased
risk for SCA? How are they protected?
The Court’s Rationale
• Legislative enactments creating liability
where none previously existed must be
strictly construed (citing Digiulio).
• Implied duty envisioned by the dissent
would engender a whole new field of tort
litigation saddling health clubs with new
costs and generating uncertainty.
• What about people suffering from SCA in
gyms? Don’t they matter too?
More “Rationale”
• “A law that mandates the presence of
AEDs and trained individuals at health
clubs is easy to obey and enforce.”
• The Legislature is unlikely to have
imposed such a new duty absent an
express statement.
• The minimal steps adequate to fulfill a
health club’s limited duty (calling 911 and
CPR) were undertaken.
The Dissent (More Sense!)
• Legislative history demonstrates that intent
behind requiring AEDs in gyms recognizes
likelihood of increase in SCAs where people
engage in physical exertion and there is a
dramatic reduction in fatality rate with
immediate use of AEDs and CPR.
• The statute should be interpreted in a way
that is consistent with its spirit and
benevolent aim. (NYC Asbestos Litig. 82 NYS
2d 342)
Chief Judge Lippman
• “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. I cannot agree with an
interpretation that is so plainly contrary to
accomplishing the goal of the legislation.”
What do we do now?
• “In light of the majority opinion, the Legislature
may wish to revisit the statute and make clear
the health clubs are in fact under a duty to make
use of AEDs they are required to have on their
• Notify gym owners and other locations where
AEDs are required by law (or even if not
mandated) that they are protected by Good
Samaritan Law when AEDs are used.
Effect of Good Samaritan Law
• “Although some concerns remain over
legal responsibility, these appear largely
unfounded because there has never been,
to our knowledge, a successful lawsuit
against an individual who has purchased,
used, or provided medical oversight for an
. The Automated External Defibrillator JAMA Feb, 2006
Clinical Benefits and Legal Liability
Hannah England, BA
Paul S. Weinberg, JD
N. A. Mark Estes III, MD
Is H.R. 3511 the Answer?
• Introduced in the House of
Representatives on Nov. 29, 2011
• “…to clarify liability protections regarding
emergency use of automated external
• This Act may be cited as the “Cardiac
Arrest Survival Act of 2011.”
Purpose of the Act
• To establish national uniform protection
from civil liability for persons who use
AEDs or who own premises in which an
AED is taken for use to encourage
deployment of AEDs. (at a minimum level)
Federal pre-emption of State Laws.
• To address the current “patchwork” of
State Good Sam Laws which are
inconsistent and unpredictable.
Good Samaritan Protections
• A person who uses or attempts to
use an AED in a medical emergency,
who is not the owner/acquirer of the
device is immune from civil liability
from any harm resulting from the use
or attempted use of such device.
• Similar protection to premises
Additional Protection
• Protected regardless of whether user
saw or complied with cautionary
• Regardless of whether user received
any training in the use of AEDs; and
• Regardless of whether user was
assisted by another person, including
but not limited to a licensed physician.
Inapplicability of Immunity
• User’s willful or criminal misconduct, gross
negligence, reckless misconduct caused
harm to the victim;
• Certified health professionals who used
the AED within the scope of the license or
certification of the professional and within
the scope of the employment or agency of
the professional;
Inapplicability (continued)
• Harm is caused by an employee or agent
of a hospital, clinic or other health care
provider while acting within the scope of
the employment;
• Such person is the owner/acquirer of the
AED who leased the AED to a health care
entity and the harm is caused by
employee of the entity who used the
device in the course of employment.
Advice to gym owners
• People who are performing vigorous physical exercise
are at increased risk for Sudden Cardiac Arrest.
• Do you want to be known as the gym where someone
was saved or the gym where someone died?
• Are you more concerned about non-existent liability or
about protecting the lives of your members?
• AED availability is becoming the standard of care.
• The N.Y. Miglino case still extends Good Samaritan
protection to gym owners/employees and they are only
liable for gross negligence when using AEDs,
What about AHA
• AHA “recommends” placement of AEDs. This is only
advisory and does not have the force or effect of law.
• Hopefully the AHA recommendations will have a
significant influence on the “standard of care” in the
• If a municipality or business owner places an AED, there
must be compliance with Section 2150-D (a proper PAD
program) which requires:
Maintenance and testing;
Physician consultation.
Some Reported AED Cases
• California: Fitness Center lacking AED and employees
failed to perform CPR.
• Florida: Fitness Club failed to have AED.
Busch Gardens failed to have AED.
• Maryland: Fitness club failed to have AED.
Swimming club failed to have AED.
• Louisiana: Convention Center failed to call for available
AED located 70 feet away.
• Pennsylvania: Private college failed to provide AED to a
lacrosse player on the practice field.
Limones and Verdugo
Will we have an answer?
• Limones v. School District of Lee County
and School Board of Lee County
• Is there a legal duty to use AEDs in Florida
High School Athletic Association schools
where the presence of AEDs has been
mandated by the Legislature?
Facts of Limones Case
• High School soccer players suffers SCA
during a school game.
• CPR administered by Coach
• School’s AED on a golf cart parked near
soccer field's end zone was never used!
• Abel not defibrillated for 23 minutes with
AED brought by Fire Department
• Abel has severe brain damage.
The Question before the Court
• “ Whether reasonably prudent post-injury
efforts for Abel would have required
making available, diagnosing the need for,
or using an AED?
• Section 1006.165 Florida Statutes(2008)
requires the presence of an operational
AED at FHSA schools and must ensure
employees or volunteers thereat are
trained in CPR and AED usage.
School’s Duty to Students
• Schools must adequately supervise
students. The school stands “partially in
place of the student’s parents.” It must:
• Provide adequate equipment;
• Properly supervise the event;
• Utilize appropriate post injury efforts to
protect the injury against aggravation
The Court’s Ruling
• “The School Board’s common law duty to
use appropriate post-injury efforts to
protect Abel’s injury against aggravation
did not include a duty to maintain, make
available or use an AED.”
• “The School Board did not voluntarily
undertake the duty to use an AED by
acquiring one and providing training…as
required by Section 100.165.”
The Court’s Ruling (Con’t)
• School Board only required to have
operational AED, register its location and
provide appropriate training;
• Neither Good Sam Act nor Cardiac Arrest
Survival Act sets forth duty to use AED.
• School Board has immunity under CASA
because it acquired AED and made it
available for use.
Parent Heart Watch’s Position
• “…the enactment of laws requiring the
presence of AEDs implies the intent of the
legislature to create a duty to use AEDs.”
• “Parent Heart Watch encourages Florida
Supreme Court to take action to mandate
AED use and save young lives.”
• The availability of AEDs in schools and
well practiced Emergency Action plans will
save young lives!
Verdugo v. Target
The Question Before the Court
• “In what circumstances, if ever, does the
common law duty of a commercial
property owner to provide emergency first
aid to invitees require the availability of an
Automatic External Defibrillator(“AED”)for
cases of sudden cardiac arrest?”
• Note: There is no duty in California,
created by the legislature, for the owner to
have an AED on its premises.
Verdugo, the Facts
• Mary Ann Verdugo, age 49, was shopping
at Target in Pico Rivera, California on
August 31, 2008 and suffered an SCA
• 911 was called and it took several minutes
for paramedics to reach the store and
several minutes to reach Ms. Verdugo
inside. She was dead before they arrived.
• Target did not have an AED in store.
What did Target know?
• “Target sells AEDs on its website for
approximately $1200.”
• The court reported that “AEDs can be
used by the untrained, as the devices
provide oral instructions to users and “are
designed not to allow a user to administer
a shock until after the device has analyzed
a victim’s heart rhythm and determined
that an electric shock is required.”
The Argument of Target
• TARGET: There is no legislation which
may be construed as requiring a building
owner or a building manager to acquire
and have installed an AED in any building.
The statutory scheme has “occupied the
field,” and that imposing a common law
duty here would “defeat the underlying
legislative purpose.”
• Duty discharged by calling 911.
The Argument of Verdugo
• “… The thrust of California’s legislative
scheme (Good Sam Laws) regarding AEDs is
to encourage their availability by providing
immunity for those who acquire them and
comply with training and maintenance
• Any business required to install an AED
under common law tort theory is entitled to
statutory immunity from civil liability.
The Court’s Considerations
• “there is under California law a special
relationship between business owners and
their invitees which creates a duty to
provide “assistance [to]… customers who
become ill or need medical attention.”
• Would imposing a common law duty
beyond calling 911 contradict California’s
legislative scheme?
Is there a clear answer?
• “In sum, given the uncertainty in the most
applicable California precedents ...
weighing the foreseeability of the harm
suffered by Verdugo against the burden to
be imposed on Target does not provide a
clear answer to the question of whether
Target had a duty under California law to
purchase AEDs.”
What Have Other States Done?
• “Some courts to have considered the
matter have held that there is no duty on
the part of business owners to provide
AEDs to be used on their invitees…”
• “Other courts, however, have allowed
similar AED suits to go to the jury,
concluding that the duty question turns on
case-specific factual matters.” (What is the
standard of care?)
The Result?
• “Thus, neither California precedents nor
cases from other courts provide us with
sufficient guidance to answer the
important question of California tort law
presented by this case. We therefore
respectfully ask the California Supreme
Court for guidance and will follow that
guidance once received.”
Questions Posed By The Court
During Oral Argument
• How would a store clerk know a customer
was suffering from cardiac arrest?
• Whether the device could be
inappropriately used and cause more
harm to a shopper suffering from another
ailment? “It may very may well be that the
good intentions could backfire and do
more harm than good.”
• “Where do we draw the line?
Verdugo’s Response
• AEDs are easily administered even by lay
• Simplicity of use!
• AEDs issue voice commands.
• AEDs come equipped come equipped with
sensors that allow jolts of electricity
only when necessary.
Question: Where Do We Stand?
• In Florida, we do not know whether the
Supreme Court will mandate the use of
AEDs in those locations where the
legislature mandates their presence.
• In California, we do not know if the
Supreme Court will establish a duty upon
a commercial property owner to provide
AEDs for its business invitees.
We Can Work It Out!
The result of using an AED!
And This T00!
Let’s Make More Memories

similar documents