United States: Decision Limiting Duties Regarding Automated External Defibrillators Does Not Shock The Conscience

Last Updated: January 6 2017
Article by Eric Alexander

Ponder the following: A man attends an exercise class at a facility run by a local religious institution. Assume that he belonged to this facility, wanted to attend an exercise class because his fitness was less than optimal, and was informed of the need to get medical advice before starting a new and potentially demanding exercise program. He had a heart attack and collapsed right after leaving the class. Assume that the heart attack was not a total surprise given his health, but that he had not had a heart attack before and had not informed the people running the class of any particular risk. The class instructor rushed to the man's aid while others called 911. The instructor was certified in cardiopulmonary resuscitation ("CPR") and did her best to help the man. When paramedics arrived, they assumed care of the man, but he died despite their best efforts.

Based on these facts and assumptions, answer this question:

Who should the man's estate sue over his death?

A) Nobody. B) The class instructor. C) The religious institution. D) The entities that operate the 911/EMT system.

If you answered other than "A," then you might need to examine your propensity to blame others.

Add in the following to the scenario presented above: The class instructor tending to the man did not utilize an automated external defibrillator ("AED") that she knew was present and was certified in using. She brought the AED to the man's side, but elected not to use it because, in her judgment, he was having a seizure and not a heart attack.

Based on these additional facts, answer these questions:

  1. Who should the man's estate sue over his death?

    A) Nobody. B) The class instructor. C) The religious institution. D) The entities that operate the 911/EMT system. E) The company that sold the AED and offered training to purchasers.
  2. If the man's estate already sued the religious institution over his death, who should the defendant bring in via third-party complaint?

    A) Nobody. B) The class instructor. C) The entities that operate the 911/EMT system. D) The company that sold the AED and offered training to purchasers.

In Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV, 2016 Tenn. LEXIS 920 (Tenn. Dec. 22, 2016), the estate sued the church that ran the gym and then both turned their attention to the seller of the medical device that was not used. It is often said that bad cases make bad law, but sometimes egregiously over-reaching cases can make good law. Ultimately, Wallis fits into the latter category. A contrary result, which would have allowed a negligence or contract claim against the seller of a device that was not used with the decedent, would have been bad, maybe bad enough to have been mentioned in our bottom ten post last week.

The facts of Wallis are pretty much like we have above and the assumptions are our own, based on what was and was not said in the opinion. Plaintiff's decedent had been using a church-run exercise facility for seven months when he had his fatal heart attack after a cycling class. Id. at *7. The instructor was certified in CPR and use of AED—but not trained by the company that sold AEDs to the church—and decided not to use the AED when she was trying to help the decedent, who she thought was having a seizure. Id. at *8. Two off-duty police officers in the building participated in the care of the decedent pending arrival of paramedics, but also did not use the AED that had been brought to the decedent's side. Id. at **8-9. One might think the actions of these third-parties in trying to help someone in medical distress are exactly what state law should encourage not discourage. Every state has its own Good Samaritan laws to encourage people to help without worrying about getting sued for your trouble. We think it is easy to see why imposing liability on the seller of a medical device that the instructor or police officers could have used, but did not use, in trying to help the decedent would be bad public policy.

The details of the procedural history that got this case up to the Tennessee Supreme Court are not too important to us. What is important is that the court was asked to answer pretty discrete questions of law about the existence of duties owed by the AED seller running directly or indirectly to the decedent, a business patron of the church's exercise facility. Id. at **22-23. Plaintiff was not permitted to add a new theory on appeal that liability could be imposed under section 324A of the Restatement (Second) of Torts, which Tennessee had endorsed. As we have explained before, this provision allows for the imposition of liability for physical harm created by less than reasonable care in trying to help a third-party even without compensation. Without a deep dive into contract law, whether the decedent was a third-party beneficiary of the contract hinges on what duties related to an AED that the facility owed him. So, this was largely an analysis of duties and not much about the facts of the case.

In Tennessee as in most places, "the law generally does not impose on individuals an affirmative duty to aid or protect others." Id. at *36 (citation omitted). A business owner, however, may owe a duty "to take reasonable action to protect or aid a patron who sustains injury or becomes ill on business premises." Id. at *37 (citations omitted). This is not triggered when the owner has "no reason to know [the patron] to be ill or injured," when the patron's "illness or injury does not appear to be serious or life-threatening," or where a competent person is already providing medical aid. Id. at 38 (citations omitted). The common law or Tennessee and everywhere else the court looked did not impose special rules requiring businesses to obtain and use AEDs. Most did not require an AED that had been acquired to be used and none had imposed liability on the seller of an AED for a business owner's failure to use it. Id. at 40.

In Tennessee as in most places, there were also statutes encouraging business owners to acquire AEDs and have them available for majority use. While some states require certain entities to acquire AEDs, id. at *33 n. 15, Tennessee only encourages AEDs and does not mandate their use once obtained. Id. at *33. To the contrary, the Tennessee statutes impose a number of post-acquisition steps before the AEDs can be used with immunity from mere negligence in their use or non-use. Id. at **35-36. Thus, there was no common law or statutory authority requiring the church to buy AEDs for its exercise facility, make them available for use, train employees on using them, or use them in situations where they might be useful.

Where the facility itself lacked any duties requiring that an AED have been used on plaintiff's decedent before the paramedics arrived and took over, there can be no liability against the company that sold the AED to the owner of the facility. The seller here was not the manufacturer of AEDs, but a local company that appears to have since closed up shop. We obviously do not know why it stopped selling AEDs or whether it was good at honoring its contracts when it was in business. We can speculate, however, that a legal environment where a seller of AEDs or other potentially life-saving medical equipment could be tagged for a purchaser's failure to use the product when they arguably should have would not make anyone want to sell such equipment. Similarly, a legal environment where a manufacturer of AEDs or other potentially life-saving medical equipment could be tagged for a distant purchaser's failure to use the product when they arguable should have would provide a big disincentive. The Wallis court's decision, while not explicitly based on public policy, gets it right where so many courts in cases with device manufacturers as defendants have gotten it wrong.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.