Installing Defibrillators - Is It Worth the Risk?
This is the first of several articles that will specifically address laws adopted by the 2004 Florida Legislature which were summarized in our July 1, 2004 e-Lawyer.
According to the American Heart Association, the early defibrillation of a person in cardiac arrest increases that person’s possibility of survival by more than 50 percent. But what liability risks could an Association face upon installing a defibrillator on Association property?
Cardiac Arrest Survival Act
In 2001, the Florida Legislature enacted section 768.1325, Florida Statutes, named the 'Cardiac Arrest Survival Act.' In 2004, the Florida Legislature amended this law to add additional protection of the owner and users of Automated External Defibrillators (AED). Pursuant to this act, lay persons who use or attempt to use an AED, as well as the person or entity who acquired the device, are immune from liability as long as certain conditions are met. Immunity for Lay Persons Using the Device
As to lay persons who actually use an AED, subsection (3) of 768.1325 specifically provides that, with certain exceptions,
any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. (Emphasis added.)
Thus, we see that if there is a perceived emergency and the victim does not object, a person may use or attempt to use an AED on that victim without fear of civil liability for any harm that may actually result to the victim as a result of the AED use. There are some exceptions to this otherwise broad immunity, the most notable of which is that this statutory immunity will not protect a person using the AED if he causes harm through willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed. The other exceptions apply to health care professionals and manufacturers and generally would not apply to the association setting.
Immunity for Acquirers of the Device
In addition to providing immunity to persons actually using an AED, subsection (3) of 768.1325 provides that 'any person who acquires the device' is also immune from civil liability as long as the harm was not a result of a failure to
(a) Notify the local emergency medical services medical director of the most recent placement of the device within a reasonable period of time after the device was placed;
(b) Properly maintain and test the device; or
(c) Provide appropriate training in the use of the device to an employee or agent of the acquirer when the employee or agent was the person who used the device on the victim . . . .
As originally written in 2001, the subject statute protected 'any person who acquires the device,'. While it was generally assumed that this liability immunity would apply to an association which purchased an AED, the 2004 amendment (effective 10/1/04) settles this issue by specifically including both HOA’s and Condominium Associations within the category of 'any person who acquired the device.' Thus, there is no doubt that HOA’s and Condominium Associations which have installed or will install defibrillators will be protected from civil liability as long as the three requirements listed in (a) - (c) above are met.
In order for an association to be protected from civil liability in the use of an AED, it must provide appropriate training to its employees and agents in the use of the device. Unfortunately, section 768.1325 does not tell us what is meant by 'appropriate training.' However, based upon another Florida Statute which deals specifically with the use of AED’s (section 401.2915), an Association which acquires an AED, should:
(1) Offer a CPR or first aid course that includes instruction on the use of AED’s to the members, tenants, guests, etc., of the Association, any of whom could at some point need to use the AED; and
(2) Require that any employees or agents who might reasonably be anticipated to use the AED complete this same kind of 'appropriate training.'
Legislative Amendment Regarding Insurance
Although section 768.1325 is intended to protect associations from civil liability in the use of AED’s, associations must still have the necessary insurance coverage to protect themselves against any unfortunate damage or injury which might arise through the use of the device (for instance, where an association had failed to properly test and maintain the AED). Although the original version of 768.1325 did not include a provision dealing with insurance coverage, the new amended version does. Under the new amendment:
(1) An insurer will not be able to require an association to purchase medical malpractice liability insurance as a condition of issuing any other coverage carried by the association; and
(2) An insurer may not exclude damages resulting from the use of an AED from coverage under a general liability policy issued to an association.
Based upon this amendment language, even in a worst case scenario, an association faced with damages should be able to rely upon the coverage provided by its general liability policy. That being said, no AED should be purchased without first contacting your insurance agent to make sure that your insurance is properly in place and is in the limits necessary to protect the Association.
So long as an association which acquires an AED meets the statutory requirements of section 768.1325, Florida Statutes, it should be adequately protected from any civil liability arising from the use of an AED. Even in a situation, however, where the association has not met the statutory requirements and is liable for damages, the amended version of 768.1325, which goes into effect on 10/1/04, ensures that such damages should be covered by the Association’s general liability insurance policy. However, no AED should be purchased without first contacting your insurance agent to make sure that your insurance is properly in place and is in the limits necessary to protect the Association.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, Esq. and Sara Wilson, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2004 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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