Safety: One more reason to hit the gym

Posted: September 15, 2015    |   Cathy Wetherell

We may be the only AED company in the world that does not endorse statutory mandates that require businesses to acquire AEDs. While mandates don’t sit well with our free-market sensibilities, we also believe that they can be counter-productive for several reasons. Oftentimes, mandates discriminate against particular classes of business and place an additional burden without data to support doing so. In addition, the political process associated with imposing mandates can also result in legislation that creates ambiguities and / or sub-optimal standards. Last, mandate enactment (particularly for isolated business categories) can create a false sense of security that a problem has been solved when in fact the legislation has only addressed a small part of the issue.

All of this aside, AED mandates obviously do exist. So, what exactly do they mean? Viewing things through the lens of my role as CardioReady’s Fitness & Recreation Practice Leader, the following understandably focuses on the club sector, though many of the points apply more universally across a wide range of business types.

I find that second only to “How much does an AED cost?” (anywhere from $700 – $1,300, btw), fitness club owners and operators want to know “Am I required by law to have an AED in my gym?” and “If I am not legally required, is it okay to NOT have one?”. These questions give a glimpse into the dynamic and evolving legal world surrounding AEDs and give purpose to this post. Whether you are the Owner of a single location gym or the Director of Operations for a nationally recognized fitness company with thousands of locations, you need to know the AED legal (statute and case law) landscape in order to protect against risk – both financial and reputational.

While the specifics will vary based upon membership thresholds and other provisos, currently, fourteen states require AEDs in health clubs. This, of course, leaves the other states which do not mandate them. But, does this mean it’s okay to NOT have an AED at your fitness club if there is no statutory requirement? Ultimately, only an attorney (and I am not one) can give you a bright line answer to this question. Nevertheless, the following may provide a few useful points for consideration.

As a first step, let’s take a summary look at a somewhat older legal case. In 2005, 46 year-old Gary Fowler collapsed from sudden cardiac arrest at a Bally Total Fitness club in Gaithersburg, MD. This particular club did not have an AED onsite (no mandate at the time). In response, Bally employees responded, providing CPR and enacting the 911 emergency response system. Unfortunately, by the time EMS arrived and provided a shock from an AED, too much time had elapsed and Mr. Fowler died. The family filed a wrongful death lawsuit arguing that even though there was no statutory requirement for an AED, Bally still had a common law duty to provide one to its business invitees. Cutting to the chase, the court ultimately rejected Bally’s defenses, stating the “while Bally had no statutory obligation to do so, this Court cannot discern any logical reason why Bally would not deploy AEDs…”. The decision continued by stating that “Bally chose to consciously disregard this known risk. That strikes this Court as the very definition of gross negligence. As such, this court finds the allegations sufficient to support a gross negligence claim.”. While the ruling is interesting in its own right, what is more instructive is the logic that the court ruled to reach its decision. Sparing some of the more involved details, the court cited the following in rendering its opinion:

  • Fitness Club AED mandates in other states
  • The existence of Good Samaritan protection
  • The fact that Bally had implemented AEDs at a number of its other clubs
  • The relatively low cost (in the court’s eyes) of implementing AEDs
  • Bally’s own knowledge of other cardiac deaths in its clubs

Simply, the court held that Bally knew that there was a problem and that a (fiscally reasonable) solution existed, but chose not to act. Aside from the specific impact on Bally, the case also signaled a change to the “standard of care” for fitness clubs nationwide.
Since the ruling on the Bally case in January 2007, the landscape has continued to evolve. More states have mandates in place for fitness clubs. More / most clubs now have AEDs. AED prices have dropped. Public awareness and expectations around cardiac arrest and AEDs has increased. So, if other courts follow the line of reasoning utilized in the Bally case (and courts do tend to look at precedents set elsewhere), mounting a defense for not having an AED in a club is now more challenging than it has ever been. In our layperson’s view, this reality has created a “de facto mandate” for AEDs in fitness clubs.

While this may not be fair, particularly as it is not difficult to argue that cardiac arrest is equally if not more likely to strike in an array of other business settings, it is a reality for club owners and operators. So, it is quite likely that a lawsuit would follow a cardiac event in a club where there was no AED on-site (particularly if the incident has a negative outcome). Confirming this, CardioReady’s case law database shows that roughly 50% of lawsuits around AEDs are brought against defendants who did NOT have an AED – even where there was no mandate for them to have an AED.

I am not looking to get on a soap box and preach about the lifesaving value of AEDs (which is self-evident in the current day). What I am trying to do is offer some pragmatic business perspective beyond the (more important) human element of the equation. At this level, the decision is one about risks – direct litigation risk and brand risk. Understanding this, the answer to the question (absent input from your own legal advisors), depends on your risk tolerance, and even a modicum of risk aversion favors AED adoption.

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