Wrongful Death Litigation Involving Automated External Defibrillators

Did you know that Automated External Defibrillators (AEDs) are mandatory to be stationed in public places in Ontario? Manufacturers such as Cardiac Science, Medtronic, Zoll, Hewlett-Packard, and many others have produced lightweight, affordable AEDs for use in a variety of public and private settings.

AEDs have become more and more common in gyms, rinks, schools, TTC subway stations, police stations, community centres, pools, sports facilities, restaurants, airports, airplanes, and a vast number of other public venues as well.

The Defibrillator Registration and Public Access Act was enacted in 2020, yet it seems that the rules and regulations necessary for its full implementation have not been realized in Ontario. The Act can be found here: https://www.ontario.ca/laws/statute/s20008

Overview of the Act:

The Defibrillator Registration and Public Access Act, 2020, requires owners or operators of designated premises to install, maintain, and ensure easy access to AEDs. Key provisions of the Act include:

• Registration of AEDs within 30 days of installation or enforcement of the Act.
• Notification to the registrar in case of AED relocation or removal.
• Empowerment of inspectors to enforce compliance.
• Stipulation of penalties for non-compliance.
• Establishment of regulations governing AED registration, inspection procedures, and related matters.  (note: not fully implemented!)

Implementation Status in Ontario:

The enforcement of Act remains slow in Ontario.  However, some cities and municipalities are quick to implement it:

In Ontario, a separate AED centralized registry does not exist, however, Toronto has established its own AED registry. 

Moreover, in Ottawa, AEDs are widely available in municipal buildings, arenas, recreation centers, and police cars. It appears that Ottawa is quite far ahead in use of AED in public places.

There also exists AED Foundation of Ontario.  The AED Foundation of Ontario works with CARE to help people survive sudden cardiac arrests. They are a nonprofit group that wants to make AEDs easier to find and use. They have big plans, such as making a central list of AED locations and connecting it with 911 services. They also want to encourage more people to use AEDs through ads and media. They team up with others, do research, and teach people about AEDs in simple ways.

AED awareness and registration remains low across Ontario. This is very concerning in light of the fact that a person can have sudden cardiac arrest.

Sudden Cardiac Arrest

Sudden cardiac arrest is the leading cause of death in the United States, killing over 320,000 Americans each year. In Canada, 97 out of 100,000 Canadians died from major cardiovascular diseases. Sudden cardiac arrest kills more people than breast cancer, lung cancer, and HIV/AIDS combined. Use of an AED device is necessary when sudden cardiac arrest occurs.

A study conducted in 2010 estimated that only 8% of those who suffer an out-of-hospital sudden cardiac arrest will survive the event. However, medical studies indicate that a large percentage of these individuals could be saved by the timely application of an AED to restart the heart. A timely defibrillation will result in saving the victim’s life in a variety of situations.

The Cost of AEDs has Significantly Decreased and AEDs are Easy to Use

AED’s are inexpensive and have simple human body diagrams (which are located on the pads to be placed on the body) and the use of voice prompts. As such, these devices are so easy to use. Studies show that children as young as sixth graders can use them. Current AED models even administer the “shock” without human intervention or having to push a button when a shock is indicated. User error is extremely unlikely.

Common Facts and Litigation

There are several common fact patterns in these types of cases:

1. The first scenario is where no AED was present at the premises. The plaintiff may allege that there should have been an AED present under a common law duty. However, absent a statutory requirement, the case where there is no AED present is a very difficult case, as juries do not want to penalize businesses for not having a device if it was not required by law.
2. The second scenario is where an AED was present at the premises but the employees/staff did not know where it was or were improperly trained in its use. These cases are often successful, because a life saving device was purchased, was available, and was simply not used or not used correctly.
3. The third common scenario is where an AED malfunctioned, the battery was dead, or some other failure to maintain the device occurred. In these situations, the family of the deceased might become aware of potential liability because the failure is evident at the scene.

In general, the public does not usually think “lawsuit” when a loved one dies of sudden cardiac arrest. However, the question of “did they have an AED?” is now becoming more common when a person dies in a public place. In addition, public information campaigns by AED manufacturers, lawyers, and organizations such as the Heart & Stroke Foundation have increased the public’s awareness of the need for AEDs in public places.

The Elements of Civil Litigation: Duty, Breach, Causation, and Damages

Duty and Breach: Even absent a requirement under statute or ordinance, experts in the standard of care will often testify that an AED should have been present at certain public places, thus allowing the plaintiff’s attorney to defeat summary judgment or a motion to dismiss on the issue of duty.

Causation: Does the Medical Research Support Causation and Prevent-ability of Death? Whether timely use of an AED would have saved the victim is typically the area of greatest debate in litigation. Studies have long supported the premise that for every minute of delay in getting a person with a “shockable rhythm” adequate defibrillation, their chance of survival decreases by 7-10%. Thus, after about five minutes, the person’s chance of survival becomes less than 50%. The average EMS response time in Ontario is 13.1 minutes.

However, after ten minutes have elapsed from the moment of the sudden cardiac arrest, the patient has a less than a five percent chance of survival. Thus, survivability and prevent-ability of death is usually not difficult to prove through expert testimony from a qualified cardiologist. Cardiologists, electrophysiologists, and forensic pathologists can thus support, through medical evidence, an opinion that if an AED had been used on the right type of sudden cardiac arrest patient, then the patient could have been saved. For causation purposes, a timeline of events must be established.

In most cases, local EMS arrives at the scene within about ten minutes and administers their own defibrillator, which analyzes the victim’s heart rhythm. The EMS report will contain an EKG reading, which the plaintiff’s expert can then use to see if the particular heart rhythm was one that an AED could have successfully shocked back to normalcy. This EMS report can also establish the exact delay caused by the premises’ failure to have an AED or the failure to use the AED that was on the premises.

Once the precise time of the person’s cardiac arrest is established through witness testimony, the plaintiff can then establish how quickly the person could have been saved if an AED would have been immediately available. In addition, in most cases the dying person is taken to the hospital where another EKG is performed. These EKG strips can also identify the specific type of electrical disturbance, further assisting the expert(s) in their evaluation.

Damages: Most cases involving cardiac arrest involve either death or some sort of neurological injury caused by lack of blood flow to the brain. Thus, the damages in these cases are always significant. The author of this article has handled cases of victims ranging from ages 11 to those in their 90s.

Emerging Trends in Aed Legislation and Civil Litigation in the USA

In 1997, Lufthansa paid the first judgment in this area of law, after a federal judge awarded $2.4 million dollars to the plaintiff, who successfully argued, among other theories of liability, the failure of the defendant to have an AED on one of its airplanes.

After the Lufthansa case, litigation in this area of law has now become common, either for the failure of a premises owner to have an AED when required (under common law, state statute, or municipal/county ordinance), the negligent failure to properly find or use an AED when it is already present on the premises, or for a defect or malfunction in the device itself. Recent cases involving the deaths of individuals on airplanes, the deaths of Tim Russert, Michael Jackson, Carrie Fisher, and the deaths of professional athletes, have brought this area of law to the forefront in the last decade.

For a comparison of each state’s law, go to the National Conference of State Legislature’s website, which has a page where you can see each state’s Good Samaritan Act and its subsection regarding AEDs.

What Is the Future in This Area of Law?

By encouraging the widespread use of AEDs to save lives and bringing awareness to this issue and penalizing those who do not follow the law, we can all help establish a standard of care that encourages AED use in all settings.

Schedule a free and confidential case consultation today by calling us at (800) 715-1082 or by contacting us online today.