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.

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