May 30, 2014

Will the Florida Supreme Court rewrite the law, or leave that job to the legislature?

By Mark Miller Senior Attorney

An Automatic External Defribrillator (AED) is a portable device that checks the heart rhythm. If needed, it can send an electric shock to the heart to try to restore a normal rhythm. AEDs are used to treat sudden cardiac arrest (SCA) and Florida law, like many states, mandates that public schools have them on site to treat individuals suffering from an SCA.  AEDs can save lives. Of this, there is no doubt— as many news stories will tell you.

But should school employees, and school districts, be liable if the employees fail to use an AED when a student is suffering a cardiac arrest? The Florida Legislature has refused to allow for liability in this context, but that has not stopped enterprising attorneys from trying to convince the courts to re-write Florida law.

So far, Florida courts have refused that invitation— but now, the Florida Supreme Court is looking at the question anew.  The Court is deciding whether, in the absence of any law that allows a plaintiff to sue a school for failure to use an AED, the courts should allow the plaintiff to recover money from the school when the school does not use an AED on a youth when 20/20 hindsight allows for the possibility that an AED may have helped.

Pacific Legal Foundation filed a friend of the court brief this week urging the Court to refuse this invitation to open a Pandora’s Box of financial liability for schools, businesses, and anyone who provides sports fields for the youth of Florida. If the Florida Supreme Court invents a new legal duty for public schools to use an AED in life-threatening situations, the impact won’t be confined to this case, or even to public schools. Potentially, every sports facility or program that is made available for youth athletics would be affected— whether operated by school districts, local or state government, parks departments, universities, even private property owners. They would all have to be prepared to use an AED if an athlete were to collapse— or face legal and financial liability.

Consider the implications for community-based organizations that offer sports activities for kids. Will volunteer coaches, referees, and parent organizers be required to learn when and how to use an AED— and face being sued for millions of dollars if something goes wrong?  Moreover, what other medical devices will they have to acquire, and train to use, in order to avoid liability for some hypothetical future medical emergency on their property? As schools, cities, counties, businesses and other property owners struggle to discern what additional devices the courts might require, the price of liability insurance would rise— translating into higher costs for the programs they operate and the services they provide.  That would be a terrible unintended consequence of good intentions, and that is why the Court should leave the writing of new law to the Legislature.

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