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Building Services Can Include Resuscitation Defibrillators Emerging as Requisite Standard of Care
September, 2008
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RISK CHECKLIST
Facility owners and managers should consider the following factors when deciding whether to purchase an automated external defibrillator (AED):
*Building demographics including age, number of occupiers and visitors, and risk factors of heart disease;
* The existence of an emergency response team already in place;
* The average emergency response time for first responders in the community (i.e. police, firefighters);
* Any on-site risk factors that may cause a sudden cardiac arrest such as electrical hazards and exposure to chemical asphyxiates; and
* Costs and number of AEDs needed to cover a site together with the cost of training materials, personnel coordination and implementation of the program.
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By Josée Virgo
Across Canada, emergency medical departments, independent paramedic associations and the Canadian Heart and Stroke Foundation are promoting the idea of public access defibrillation so that people are trained and ready to use automated external defibrillators (AEDs) in a variety of public spaces. AEDs can already be found in some residential, commercial and industrial buildings and complexes, and advocates contend that thousands of lives could be saved if AEDs were widely available in the public sphere.
Building owners and property managers may be reluctant to purchase AEDs because they fear that increased liability will come with owning such a device. However, provincial governments are introducing legislation to support public access to AEDs and encourage their use in order to save lives. For example, the Ontario government passed the Chase McEachern Act (Heart Defibrillator Civil Liability), 2007, to protect people from civil liability when attempting to save a life using a public AED.
As workplace AED programs become more commonplace, AEDs could soon become the unofficial standard of care for sudden cardiac arrest emergencies. Accordingly, it is important for building owners and property managers to consider the increasing risk of not having AEDs or AED programs at their facilities.
TECHNICAL & LEGISLATIVE SAFEGUARDS
An AED is a computerized device that analyses the heart rhythm of a person who has suffered a cardiac arrest and determines if the rhythm requires defibrillation. If required, it prompts the user to deliver an electric shock to restart a heart that has stopped beating.
The user cannot accidentally shock a heart that is in normal rhythm. The AED will only deliver a shock to the victim if it detects the cardiac rhythms that require defibrillation. If the victim is not in cardiac arrest, the AED will not deliver a shock.
In Ontario, the Chase McEachern Act protects:
* individuals from liability for damages that may occur as a result of their use of an AED to save a person's life at the immediate scene of an emergency, unless damages are caused by gross negligence;
* health care professionals from liability for damages that may occur as a result from their use of an AED to save a person's life at the immediate scene of an emergency, unless damages are caused by gross negligence and unless the AED is used in a hospital or other place having proper health care facilities and equipment for the purpose of defibrillation; and
*owners and occupiers of premises on which an AED is installed from liability for any harm that may occur as a result of the use of an AED, provided that the owner or occupier made the AED available for use in good faith without gross negligence and properly maintained the defibrillator. This protection does not apply to hospitals or other health care facilities.
AVOIDING LIABILITY
Establishing and maintaining an AED program is critical not only for the safety of building occupants, but also to legally protect facility executives. In order to avoid liability, persons having AEDs available in their facilities must confirm their AED programs provide proper training and ensure the AEDs are readily accessible and maintained in good working order.
An AED program should address the following issues in order to mitigate legal exposure through the use of AEDs:
(1) Designate a coordinator for the AED program. This individual will provide effective coordination of the program and communication with emergency services.
(2) Establish a working relationship with the local rescue service and a medical consultant with occupational, cardiac or emergency medical expertise. Practice protocols for training and using the AED should be developed in communication with the medical consultant and in keeping with provincial regulations.
(3) Establish training. Staff should be appropriately trained in the use of the AED. At least one on-duty staff member should be able to access the AED and be trained in its use at all times. This would avoid the potential situation of having the machine available without anyone being able to operate it.
(4) Only trained individuals can use the AED. While AEDs do appear to be relatively foolproof when used properly, an owner or property manager could attract liability if an employee who is not adequately trained fails to operate the AED properly or causes injury to the individual in distress.
(5) Carry out drills. Cardiac arrest drills provide hands-on practice for responders and an opportunity for the evaluation of company procedures.
(6) Easy access. The AEDs should be placed in an area that is readily accessible to the personnel who would use it. Minimizing the amount of time required to have the unit available for use would decrease any allegations that help was rendered too late.
(7) Good working order. The AEDs should always be kept in good working condition to avoid any claims that imply that the owner or property manager was negligently in possession of faulty equipment that otherwise could have been of assistance. Regular testing of the equipment is also recommended.
(8) Call 911. The use of an AED is supplemental to calling emergency authorities. The use of an AED should not preclude contacting an ambulance or other emergency service as usual. As soon as someone is in distress, one person should be calling 911 while another is fetching the AED.
(9) Ongoing treatment. Once personnel begin treatment of an injured person (i.e. defibrillation and CPR) they should continue such treatment until emergency services arrives. This would preclude any claim that a person discontinued assistance that could have perhaps saved the victim.
"All risks" property insurance should provide coverage in the event an owner is not covered by the Chase McEachern Act (i.e. the AED is not properly maintained, an employee is deemed grossly negligent in its use of an AED, etc.). Property owners considering purchasing an AED should obtain written confirmation to this effect from their insurance brokers.
Full public access to defibrillation will take many years. Nevertheless, building owners and property managers need to be mindful that AEDs are becoming what is considered a necessary standard of care.
Josée Virgo is an Associate practicing law with Borden Ladner Gervais LLP in Ottawa. For more information, see the web site at www.blgcanada.com.
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