October 25, 2013

No tort duty for businesses to provide AEDs

By Deborah J. La Fetra Senior Attorney

In Verdugo v. Target, the California Supreme Court will decide whether the common law requires businesses to purchase, maintain, and train employees to use Automatic External Defibrillators (AEDS) if a customer is stricken with a heart attack.  Today, Pacific Legal Foundation, along with the National Federation of Independent Business, Small Business Legal Center filed an amicus brief arguing that the common law imposes a duty on business owners to summon medical assistance (call 911), but not to provide treatment with a specified medical device.

Courts should not use the common law to dictate each specific kind of equipment that each specific kind of business must purchase, maintain, and train employees to use.  Under existing law, those decisions are made first by the businesses themselves, which use their own judgment to determine what risks are likely and what preventative steps are most appropriate; and second, by the Legislature, which may choose to standardize a particular duty of care.  The California Legislature, to the extent that it has codified public policy related to AEDs, imposes no statutory duty on businesses to purchase and maintain the devices.  Premises liability rules should apply only when the  property owner should have been aware of a particular likelihood of injury or the necessary preventative measures.

Any person may carry with her the risk of a heart attack as she moves through her days, in and out of a variety of businesses, homes, government buildings and streets.  Likewise, many people bear other significant risks, as a result of their genetic dispositions and or lifestyle choices, which might lead to a medical emergency wherever they might go. For example, many individuals have nut allergies and require an immediate injection of epinephrine (Epipens) upon contact with nuts. Asthmatics depend on immediate use of inhalers to restore their ability to breath. And diabetics may need an immediate injection of insulin or sugar with sudden changes in blood sugar.  In none of these situations, however, do courts place a duty on premises owners to provide these medical devices.  There is nothing inherent about Target—or any retail establishment—that makes its customers more likely to suffer a heart attack.  The proposed duty to purchase, maintain, and train employees in the use of AEDs is therefore nothing more than a tax on businesses to respond to a general social problem.  Businesses are not meant to be insurers.

Moreover, changes in biotechnology eventually will render a device-specific duty obsolete.  People suffering from cardiac arrest, for example, may be treated with drugs rather than a defibrillator.  And scientists at the Hohenstein Institute have developed an entirely different type of therapy for sudden cardiac arrest victims based on extremely rapid cooling down of the patient’s body.  Innovative cooling pads, which require no power source, induce “therapeutic hypothermia,” thus slowing circulation and allowing more time for the patient to receive critical care before suffering irreparable neurological damage. Even traditional cardiopulmonary resuscitation (CPR) has undergone changes due to biotechnological advances:  handheld mechanical devices now exist to provide more consistent and possibly more effective pumping action than a human being.

Construing the common law to demand the presence of one particular type of medical device opens the door for future plaintiffs to argue that business owners should have other types of medical devices on hand.  As businesses struggle to discern what potential medical devices might be retroactively demanded by the common law, their uncertainty translates into fear of lawsuits and higher prices and the cost of the anticipated litigation is factored into the price of goods and services.

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