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Jan 03 2012

Court Rules Gym Owner Could Be Held Liable For Not Using AED

In New York, General Business Law §627-a requires that an automated external defibrillator (AED) be present in health clubs with at least 500 members, along with a trained operator to use it. And now a NY Appellate Court has ruled that this statute also means that the operator has a duty to use the machine to save someone’s life.

Here are the facts of the case: In 2007, Gregory C. Miglino Sr., who was in his late 60s, collapsed while playing racquetball at Suffolk County Bally Total Fitness in Lake Grove. Kenneth LaGrega, a personal trainer qualified to use the AED, found Mr. Miglino lying on his back, breathing heavily and with a faint pulse but with normal color. Another Bally worker brought the AED to Mr. Miglino’s side, but apparently La Grega did not use the device; he says because there was a doctor and a medical student attending to the club member and he di not want to intervene. Mr. Miglino was pronounced dead after being taken to the hospital at 7:45 a.m.

In 2008, Gregory Miglino Jr. filed a wrongful death action against both Bally Total Fitness of Greater New York—the owner and operator of the club—and Bally Total Fitness Corporation.

Bally’s sought dismissal of the lawsuit under NY’s Good Samaritan” Law, Public Health Law §3000-a, which establishes immunity from suit for medical professionals and others who offer treatment in an emergency, including entities and individuals who make defibrillators available as long as they are not “grossly negligent.”

But the Second Department said that the General Business Law trumps the Good Samaritan Law:

“[W]hy statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?” Justice Sandra L. Sgroi (See Profile) asked rhetorically in Miglino v. Bally Total Fitness of Greater New York, 06556-2010.

The court upheld a lower courts refusal to dismiss the case which will now proceed to trial. At trial, a jury could still determine that the Bally’s employee acted reasonable under the circumstances, but would have to consider that the law placed an affirmative duty on him to act.

What makes this so troubling is that the First Department in a similar case granted a motion for summary judgment by a health club whose patron suffered a fatal heart attack when the club did not use an available AED. That court in Digiulio v. Gran, 74 AD3d 450, said that the club had no common law duty to use the defibrillator and “could not be held liable for not doing so.” It also rejected the plaintiff’s argument that General Business Law §627-a implicitly obligated the club to use the device. So, right now, in NY and the Bronx (First Dep’t) you don’t have to use the device but in Queens, Brooklyn, Staten Island, Long Island, Westchester, Rockland, Putnam and Orange (Second Dep’t) you do.

One of two things must now happen. Either the State Legislature needs to clarify whether it intended to place this duty to use the AED on gym owners when it passed GBL 627-a by amending it to make its position clear or the NY’s highest court, the Court of Appeals, will have to break the tie. The Court affirmed the First Dep’t but did not explicitly have to deal with the issue of whether 627-a created a duty to act.

I expect Bally’s to appeal, so the Court should decide this sometime in 2013. I don’t expect the NY State Legislature to act before then. In my opinion, the First Dep’t got it right because statutes that change the common law and place a duty where one never existed before are supposed to be very strictly construed. Since the statute specifically created a duty to house an AED but did not specifically create a duty to use it, I think the Court will say the law did not impose one. The Second Dep’t in discussing this issue stated:

[S]uch strict construction should not be utilized to eviscerate the very purpose for which the legislation was enacted.” Here, given the law’s undisputed requirements, it would be “anomalous to conclude that there is no duty to use the device should the need arise”

The court could not seem to find a reason why the law would require an AED to be present but not require its use. That’s easy – having AEDs around increases the chances that someone who is familiar with its use can use it.

I only know this – gym owners around the state are probably feeling that they could need to have that AED device around for themselves as I am sure this decision is going to give some of the them heart palpitations.

4 comments

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  1. Gregory Miglino Jr.

    I read your post and strongly disagree. First some of your facts are wrong. My father just turned 60 and was in excellent health. He was still in a shock able rhythm 17 minutes into the event. This is significant considering the research and the importance of early defibulation in cases like this. That research is the reason that such a powerful tool has been put in the hands of the public. Second not only are gyms required to have AED’s if their membership is over 500, but they are also required to have someone there that is trained to use it. Unlike the case in the First Department where nobody took any affirmative action to intervene for the deceased in this case the manager got involved in the rescue from the beginning and then walked away from the care prior to following an established protocol.
    I agree average people in a different setting have no duty to act and also should be shielded if they do by the Good Samaritan act. That act though does not protect trained people that are being compensated to provide care. In this case in order to have his job the manager was required to be CPR AED trained. He went further in this action by getting involve in the rescue and then abandoning the patient and not providing the care he started and was trained in.
    In your post you mentioned that having a machine does not constitute a duty to act and that the law is silent. In facilities with a membership of fewer than 500 it is true that you may voluntarily have an AED and that nobody there is required to be able to operate it. If the law did not intend on placing an obligation on facilities with over 500 to use the machine in these cases then why did it set an arbitrary number of 500 for facilities to be mandated to have them. Why then at 500 did it now state someone must be available that is trained to operate the AED. Although silent on the specifics saying you must use it, it is clear that the law see larger facilities as being different than those serving smaller populations.
    If you get passed all of this there is a lot more that will go to court regarding this business and this incident. I believe the courts got it right. I also believe that if it is upheld the courts will have issued a common sense ruling that will save lives, which I believe was the intent of the law all along. This ruling should not in any way impact the application of the Good Samaritan Law. The two do not connect in this instance. If they did then the 70+ year old psychiatrist and the 24 year old first year med student would have been taken to task. Their actions right or wrong have never been addressed because they are covered by the Good Samaritan Act.

    1. Oscar Michelen

      Dear Mr. Miglino: Thank you for your thoughtful and informative post and I certainly feel that what happened to your father was tragic. Having coahced my 3 sons in baseball, soccer and basketball and being one of the AED coordinators at my church, I know and appreciate the value and importance of having AEDs at the ready near athletic fields and gyms. But I feel that the legislature is the entity that needs to clarify this language. The 500 member rule could just as easily be a recognition that a smaller gym may not have the money to spend to install and maintain AEDs. Having a requirement to have a certifed AED operator on site for larger gyms may also be a way to increase the likelihood that someone will use it should they want to, but to impose a new duty or obligation of this magnitude on gym owners without a clear direction from the legislature is wrong, in my opinion. Let’s hope that either the Court of Appeals or the NYS LEgislature clears this up so that gym operators can have an idea of what they are required to do.

  2. jameshopes (@jameshopes876)

    Truly AED must be compulsory for the gyms and fitness centers.As your report suggested that there is requirement of the AED for any emergency.Therefore it must be made necessary .

    http://healthcareinformed.com.au/nursing_homes.html

  3. Oscar Michelen

    The NY State Court of Appeals is expected to issue a decision on this topic sometime this year.

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