What Are the Obligations of Health Clubs to Use an Automated External Defibrillator [AED] When a Member Suffers a Heart Attack While Working Out?


What are the obligations of health clubs to use an automated external defibrillator [AED] when a member suffers a heart attack while working out?

This was the issue recently decided by the Court of Appeals in Miglino v. Bally Total Fitness of Greater N. Y., Inc. decided on February 7, 2013 [2013 NY Slip Op 00780].

This decision reconciled the differing opinions between the Appellate Divisions in the First and Second Departments with respect General Business Law (GBL) §627-a which provides that every health club, as defined in §3000-d(1)(b) of the Public Health Law (PHL), with a membership of 500 persons or more:

“have on premises at least one [AED] and [to] have in attendance, at all times during business hours, at least one individual performing employment or individual acting as authorized volunteer who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of [CPR] provide [sic] by a nationally recognized organization or association.” Miglino v. Bally Total Fitness, supra. (Emphasis added).

Appellate Division, First Department:

In Digiulio v. Gran, Inc., decided by the First Department on June 3, 2010 [2010 NY Slip Op 04704 (74 AD3d 450)], the appellate court affirmed the Supreme Court’s denial of the plaintiff’s motion for partial summary judgment and granted the defendant’s motion for dismissal of the complaint.

Digiulo had suffered a heart attack while running on a treadmill and collapsed on the floor. The front desk was immediately notified and the club’s assistant manager immediately called 911 and ran to the member’s side where he found another member applying CPR. At that point, the assistant manager went to where the AED was located. Believing that the glass case it was kept in was locked, and making attempting to open it, he panicked and began searching in various locations for the key. The glass case was, in fact, unlocked. He stopped looking for the key when the emergency medical services (EMS) arrived.

EMS found the member in full cardiac arrest and it was later determined that he suffered anoxic brain damage while stricken. He remained hospitalized for approximately five months before he died.

Prior to his death, Digiulo and his wife commenced a lawsuit alleging negligence and loss of consortium. They moved for partial summary judgment claiming that the defendants were liable for common law negligence and negligence per se for a violation of GBL §627-a which, as noted above requires the club to keep an AED on the premises to have someone present at all times who is trained to use it. Plaintiff-wife argued that had the assistant manager “used the AED when he first intended, her husband ‘almost certainly’ would have survived his heart attack and ‘most likely’ would have suffered no more than minor brain damage.”

In denying the motion for partial summary judgment and granting the cross motion to dismiss, the trial court found no common law duty to the decedent had been breached and the club had complied with the statute by keeping an AED on the premises in an unlocked case in an accessible location.

The Appellate Division agreed, stating that the club had no duty of care beyond immediately calling 911 and applying CPR. It had no common law duty to use the AED and could not be held liable for not doing so. Moreover, the deceased “assumed the inherent risk of a heart attack that attends intense exercise.”

The First Department held that “the common law does not recognize [the] duty [to use the AED], and to interpret section 627-a as implicitly creating a new duty would conflict with the rule that legislative enactments in derogation of common law, and especially those creating liability where none previously existed, must be strictly construed (citation omitted). The statutes limitation of the liability of health clubs and their agents when ‘voluntarily’ using AEDs to aid stricken persons (see §627-a[3]) indicates that its use is not obligatory. While the Legislature meant to require health clubs to make AEDs available and encourage their use in medical emergencies, it did not intend to impose liability on clubs for usage failure.”

Appellate Division, Second Department:

In Miglino v. Bally Total Fitness [NYLJ, 1/3/12, 18:1 (AD 2nd Dept.)], plaintiff’s father collapsed while playing racquet-ball at a gym owned and operated by Bally. In addition to calling 911, a personal trainer employed by Bally, certified in using an automated external defibrillator [AED], ran to the scene to observe the individual. Another employee brought the AED to the person’s side. Also on the scene were a medical doctor and a medical student. The AED was never used before the arrival of the EMS technicians, approximately eight minutes after the call was received. EMS rushed the unconscious and unresponsive individual to a nearby hospital where he was pronounced DOA.

Decedent’s son commenced a wrongful death action based on the ground of negligence for failure to utilize the AED. The defendant sought dismissal of the proceeding for failure to state a cause of action.

The Supreme Court denied the motion and the Appellate Division affirmed.

The “heart” of this case was whether the employees of the gym who were trained and certified in using the AED which the gym was required to have on location pursuant to GBL §627-a had a legal duty to use it.

The defendant argued that it had no affirmative duty to use the AED on the decedent after he collapsed and that it was immune from liability under the Good Samaritan Law (PHL §3000-a).

The Appellate Division disagreed with the defendant finding that “the issue at bar was not whether Bally was negligent in the course of its use of the AED” but whether the General Business Law [GBL] §627-a gives rise to a statutory cause of action in negligence based upon the failure to use the device”.

As the Appellate Division clearly stated, “…as there is no dispute that General Business Law §627-a requires certain health club facilities to provide an AED on the premises, as well as a person trained to use such device, it is anomalous to conclude that there is no duty to use the device should the need arise. Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?”

Confronted with these diametrically opposed interpretations, the Court of Appeals, in reviewing the applicable statutes, sided with the reasoning of the First Department. The Court discussed the purpose of the Good Samaritan Law “which protects volunteers who supply first aid or emergency treatment outside a medical facility from liability for injuries or death unless caused by their gross negligence. The broad goal of the Good Samaritan Law is to prompt aid by people under no duty to act who otherwise might be dissuaded by the prospect of ordinary tort liability.”

Citing GBL §627-a (3), the Court held that:

“Plaintiff contends (and the Second Department held) that section 627-a creates an affirmative duty for health clubs to use the AEDs which they are required to have available for a trained employee or authorized volunteer to employ in the event of a cardiac emergency. We do not agree. The provisions of section 627-a, read together with Public Health Law §§3000-a and 3000-b, to which they explicitly refer, and the words ‘volunteer’ (General Business Law §627-a[1]) and ‘voluntarily’ (General Business Law §627-a[3]) evince the Legislature’s intent to protect health clubs and their employees from the risk of liability for ordinary negligence with respect to AEDs.”

Quoting the reasoning of the First Department in Digiulo, supra, the Court “resolve[d] the issue” by “hold[ing] that General Business Law §627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained onsite.”

In a dissenting opinion that questioned the majority’s logic, Chief Judge Lippman “[did] not believe the statute should be interpreted in a way which renders it virtually meaningless. *** Indeed, the measure was meant to ‘ensure a higher level of safety for thousands of individuals who belong to health clubs (citation omitted). 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.

“In the absence of any explicit statement concerning whether or not the statute imposes a duty to use the AED, the statute should be interpreted in a way that is consistent with its spirit and benevolent aim (citation omitted). The majority opinion, however, does the opposite. 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 requires that the devices be applied in any potentially lifesaving situation. I cannot agree with an interpretation that is so plainly contrary to accomplishing the goal of the legislation. I would find that the plaintiff’s statutory claim states a sufficient cause of action.”

Simply put, Chief Judge Lippman’s dissent can be summed up with the five words so often used by my mother: “So what good is it?”