09 Apr Is Fear of Liability Why Your Condominium Community Does Not Have an Automated External Defibrillator (AED)?

According to the Centers for Disease Control and Prevention, approximately 785,000 Americans suffer their first heart attack every year, while another 470,000 experience their second. Unfortunately, the number of those who die from sudden cardiac arrest is equally disturbing.

Medical experts generally agree that the key to surviving a heart attack is timely implementation of the Chain of Survival, which is a metaphor often used to describe the elements of appropriate treatment in the case of a heart attack. An important link in this chain is defibrillation, which involves providing an electric shock to the victim’s heart.

Thousands of deaths could be prevented each year if heart attack victims receive prompt defibrillation. Automated external defibrillators, or AEDs, are designed to provide instant defibrillation to those in need. AEDs are portable devices that guide users through the process by audible or visual prompts without requiring any discretion or judgment.

Technological advances have increased access to AEDs, which are now found anywhere from the local gym to the neighborhood supermarket. Despite their benefit and increasing affordability, many condominiums do not purchase AEDs for fear of exposing their association to liability if something goes wrong. Though potential liability is always a legitimate concern, in the context of providing AEDs to condominium residents, various laws are in place to protect the condominium association.

In the Cardiac Arrest Survival Act of 2000, Congress found that limiting the liability of Good Samaritans and acquirers of AEDs in emergency situations may encourage their use and save lives. Since then, many states have enacted their own laws to protect those who use AEDs or otherwise make them available.

In Florida, civil immunity is available to those who cause harm when using or attempting to use an AED in a perceived medical emergency. Under certain circumstances, any person who acquired the device and makes it available for use, including condominium associations, may also be entitled to immunity. Additionally, Florida law provides that an association’s general liability insurance policy may not exclude damages resulting from the use of an AED.

Like Florida, Georgia provides civil immunity to those making AEDs available, and to those who provide emergency care or treatment with an AED. In North Carolina, a person providing care with an AED and the person responsible for the site where the AED is located are similarly immune from civil liability arising from the use of the AED.

Relying on these laws, condominium associations can provide the life-saving benefits afforded by AEDs without necessarily creating additional liability. However, the immunity afforded by these laws is not automatic or absolute. Rather, each state’s laws generally contain various, often unique requirements which must be met to enjoy the immunity.

For example, in Florida, immunity is only available if a qualifying AED is involved. To qualify for immunity in Florida, the AED must be a lifesaving defibrillator device that:

• Is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act;
• Is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of determining without intervention by the user of the device whether defibrillation should be performed; and
• Upon determining that defibrillation should be performed, is able to deliver an electrical shock to an individual.

In North Carolina, immunity is lost if the injury or death resulting from the use of an AED was caused by gross negligence, wanton conduct or intentional wrongdoing on the part of the person rendering the treatment. In Georgia, the emergency care must be rendered gratuitously, in good faith, and without objection of the person to whom care or treatment is rendered.

Despite similarities among many states’ statutes, there may be some very significant differences. Consequently, before electing to purchase an AED for their community, condominium associations must understand and ensure compliance with each and every applicable statutory requirement. Given the consequences of failure, condominium associations should consider seeking legal advice during the decision-making and implementation process.

Access to an AED may save a life. If a condominium association does not have an AED for fear of increased liability exposure, then a closer look at any applicable immunity laws should be considered. Despite these laws, however, condominium associations must maintain a healthy fear of liability to ensure compliance with any statutory requirements. Otherwise, the very immunity that initially compelled the purchase of an AED will be replaced with the liability exposure the condominium association always sought to avoid.

Clients of Setnor Byer’s Condominium Program enjoy access to various risk management services, such as Setnor Byer’s Risk Management Group and Unit Owners’ Report Line, as well as our affiliate’s Board Member Education Certification, which has been approved by the Division of Florida Condominiums, Timeshares, and Mobile Homes.

If you would like to learn more about controlling condominium association risks, or if you would like to discuss how we can serve you and your association, please contact us.