Effective Public Advocacy_ROSZAK

Effective Public Advocacy:How EMS and Community Champions

Can Work Together for Change

Andrew R. Roszak, JD, MPA, EMT-PSenior Health Policy CounselOffice of Special Health Affairs

Department of Health and Human ServicesHealth Resources and Services AdministrationAdvisor, Sudden Cardiac Arrest Foundation

• It is estimated thatapproximately250,000 to 450,000Americans die eachyear from sudden out-of-hospital cardiacarrest.

• 700 deaths per day,• an average of onedeath every twominutes.

Model AED Legislation

• General Principles:

• Laws that encourage only a select few or designatedresponders should be avoided ‒ AEDs are meant for publicuse. Time is of the essence, and treatment should not bedelayed to seek out certain individuals

• It is imperative that laws contain a maintenance provision ‒ adead AED is of no benefit

• AEDs should be readily available and not locked away incabinets or closets. The inclusion of criminal penalties ismeant to help reduce theft/tampering fears.

• Laws should encourage the training of employees inCPR/AED

Key Elements• Provide Good Samaritan Protection for all users of AEDs,

including both trained and untrained responders. Thisprotection should cover all good faith efforts ‒ but shouldnot cover willful and/or wanton conduct.

• Differentiate between Good Samaritan responders whoare providing assistance on a voluntary basis versustrained medical professionals who are providingassistance as part of their job description (i.e. getting paidto respond).

• Require the installation of AEDs at public buildings• Require the installation of AEDs at routinely serve as

venues for large populations ‒ such as churches,stadiums, movie theatres, concert halls, shopping malls

• Require the installation of AEDs at facilities with sportingevents, such as hockey arenas, fitness centers, gyms,swimming pools, baseball stadiums

Key Elements

• Require that the Director of Public Healthestablish guidelines on the appropriateplacement of AEDs within facilities

• Require that AEDs placed in locations identifiedin 3,4,5 above be available for public use (notlocked away) and their presence shall beidentified by not less than two conspicuouslyplaced signs.

• Signs designating the presence of an AEDshould be consistent with ISO 7010 and ISO3864-3. In addition to graphics, the signs shallfeature the letters “AED”.

Key Elements• Upon installation or removal of an AED, facilities

shall notify their local EMS Director. Thenotification shall include:

• The location of the AED• The type / manufacturer of the AED• Contact information for the facility ‒ including after-

hours information• A designated contact who is responsible for the

maintenance of the AED• Each local EMS Director shall maintain a registry

of AED locations and manufacturer.

Key Elements• Establish criminal penalties for any person who

intentionally or willfully tampers with, disables, or steals anAED ‒ there should be a proviso that distinguishes thecriminal damage of an AED from an AED which isinoperable due to neglect of the owner.

• Establishes civil penalties, including fines and loss oflicensure, for facilities that fail to maintain AEDs inaccordance with manufacturer’s recommendations.

• Each facility with an AED shall have on staff at least twopersonnel who are certified in CPR and AED.

Key Elements• Each facility with an AED shall ensure that the AED

is maintained and regularly tested in accordancewith the manufacturer’s recommendations.

• Each facility, at a minimum, shall ensure that theirAED is in good operable condition at least every 30days. Records of these checks shall be maintainedfor each AED located within the facility.

• Nothing set forth under these regulations shallprohibit a county or municipal government fromenacting, implementing and enforcing any localordinance that expands the requirements listedabove.

Recent Trends in Legislation

• Schools

• Litigation

• Sudden cardiac arrest is the leading causeof death in young

• On any given day, educational institutionshouse more 20 percent of the United Statespopulation.

• This figure includes more than 60 millionstudents, facility, and staff.

AEDs in Schools• Colorado

• C.R.S.A. §22-1-125• Florida

• FL. ST. § 1006.165• Illinois

• Public Act 093-0910• Maryland

• MD EDUC § 7-425• Michigan

• M.C.L.A. 388.1699d

• Nevada• N.R.S. 450B.600

• New York• NY EDUC § 917• A 8779 of 2002

• Ohio• R.C. § 3313.717

• Oregon• O.R.S. § 327.365

• Pennsylvania• 24 P.S. § 14-1423

Where has Litigation Focused?

• Entities that DO NOT have AEDs

• Entities that DO have AEDs

Entities that DO NOT have AEDs

• Overabundance of information

• Benefits v. Risks

• Proven Effectiveness

• Cost

Airlines Industry

• Aziz v Air India• Frankfurt Germany to Los Angeles• 658 F.Supp 2d 1144 (2009)

• Air India flight, plane landed at LAX and wastaxiing to gate

• Passenger collapsed ‒ not breathing• Passenger ended up dying• Wrongful death suit ‒ had the airplane beenequipped with an AED, the passenger wouldhave survived

• Governing Law ‒ Convention forthe Unification of Certain Rulesfor International Carriage by Air• Adopted May 28, 1999

• The United States Supreme Court hasinterpreted this treaty language as requiringthat, for a passenger to hold an airline carrierliable for any injury he or she sustains, thepassenger must establish that

• (1) there has been an "accident,"• (2) that caused the passenger's injury, and• (3) that said accident occurred while onboard the aircraft or in the course ofembarking or disembarking the aircraft.

• "accident" means "an unexpected or unusual eventor happening that is external to the passenger."

• for there to have been an "accident", the Azizfamily must show that the asserted act or omissionwas unexpected or an unusual event, that wasexternal to Aziz, and that actually caused hisdeath.

• the courts have held that the fact of a passengersuffering a heart attack or some other physicalailment, by itself, was not an "external" occurrenceunder the convention.

Regulations• FAA regulations which state that, "for treatment of injuries, medical events

or minor accidents that might occur during flight time[,] each airplane musthave the following equipment[:] . . . in airplanes for which a flight attendantis required and with a maximum payload capacity of more than 7,500pounds, an approved automated external defibrillator as of April 12, 2004."14 C.F.R. § 121.803.

• Office of the Director of Civil Aviation for the Indian governmentpromulgated a regulation in 2002 that mirrors the requirements containedin the FAA regulation quoted above. Specifically, the Indian regulationprovided that, effective April 12, 2004, "all scheduled airlines operatingtransport category aircraft capable of carrying more than 30 passengersincluding crew when engaged in commercial flights shall carry oneapproved automated external defibrillators to provide the option to treatany serious medical events during flight time.“ (This regulation wassubsequently withdrawn)

• Convention on International Civil Aviation Organization("ICAO")." 14 C.F.R. § 129.11. There are no operationspecifications requiring foreign air carriers to equip theiraircraft with AEDs.

• Part I Annex 6 of the ICAO requires that airplanes be"equipped with a) accessible and adequate medical suppliesappropriate to the number of passengers the aeroplane isauthorized to carry" and recommends that such "medicalsupplies" consist of "one or more first-aid kits, and a medicalkit, for the use of medical doctors or other qualified persons intreating in-flight medical emergencies for aeroplanesauthorized to carry more than 250 passengers."

Take Away Lessons

• Outside of the United States FAA regulationsmandating AEDs onboard domestic flights, noother governmental agency had made thepresence of such equipment "mandatory."

Absent a Legislative Mandate

• Do we have a duty to acquire anAED?• Answer: NO!

• Atcovitz v. Gulph Mills Tennis Club,Inc., Supreme Court ofPennsylvania (2002)

Entities that DO have AEDs

• Duty to Use

• Duty to Maintain

• Duty to Inform

What about a duty to use?

• Historically, courts have been reluctant toimpose a duty to aid a person in peril.

• Restatement (Second) of Torts § 314 A

• The standard of care requires only that thedefendant engage in a minimal affirmative action

• Calling 911 has been held to satisfy this standard

Special Relationship

• However, when some special relationship existsbetween the parties, or the bystander is under alegal obligation to attempt to rescue the person inperil, then social policy may justify the imposition ofa duty to assist or rescue the person in peril.

• Under this scenario nonfeasance would lead to liability.

• A restaurateur has no duty undercommon law to rescue acustomer who is choking on food

• Ship owners have a duty torescue passengers that falloverboard.

Does a Special Relationship Exist?

• A special relationship has been recognized:• To report suspected abuse or neglect of the student.• Between a teacher and a student (sexual relationcases)

• Between an university and a student.

• Courts have also held that a principal or viceprincipal has the samespecial relationship withstudents as a teacher.

• High school personnel have duty to exerciseordinary and reasonable care for safety ofstudent athletes under their authority• Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 553 (Ind.1987)

• School board owed duty to properlysupervise football practice as approvedschool activity in which school employeeshad authority to control behavior of students• Leahy v. Sch. Bd. of Hernando County, 450 So.2d 883, 885

(Fla.Dist.Ct.App.1984)

If we find a special relationship..

• The duty to render aid is defined as a duty touse reasonable care under thecircumstances.

• Normally, this requires the non-injured partyprovide such first aid as they reasonablycan, and also take reasonable steps to seethat medical assistance is obtained.

What is Reasonable Care?• In Thompson, a 15 year old student died in aschool.

• An AED was available but it was not used, partiallybecause the school had recently acquired the AED.• The principal stated “we did not feel AED use wasnecessary” partially because the device was new and “anunknown device to us”

• Minimum of 14 minutes before 9-1-1 was called• When paramedics arrived, the child wasdefibrillated

Thompson v. Rochester Community Schools, 2006 WL 3040137 (MIch. App.) (2006)

Standard of Care - Schools

• The Court allowed expert testimony of a riskmanagement expert regarding the standardof care applicable in emergency situations• Specifically procedures and policies for schooldistricts

• Expert opined that school breached standardof care by not using AED• Also stated that the decision was “nonsensical”


• Court also heard expert testimony from apediatric cardiac expert• Opined that the school did not act in areasonable manner

• Further testified that if AED would have beentimely used she was “reasonably certain” thatthe child’s heart beat would have beenrestored

• Also stated that child would have had agreater than 50% chance of survival had AEDand CPR been used


• Court held that summary judgment wasnot appropriate

• There was admissible evidence thatsupported a finding that the schools conductwas the ‘but for’ cause of the child’s death

• Court stated there was even evidence to show thatthe school’s conduct, and not the child’s medicalcondition, may have been the cause of death


Immunity

• Lots of confusion

• Statute or Administrative Rule

• Requirements Vary

• Knock it out early ‒ No trial

Immunity• A defense that can be raised to limit orabolish a persons, or entities, tort liability.At one time, governmental bodies hadabsolute immunity against suits.

• This absolute immunity stemmed fromboth Roman and English doctrine underwhich ‘a King could do no wrong’.

• The idea that a King could be dragged intocourt was inconsistent with the King’sabsolute sovereignty.

Immunity Today• It is important to note the limits of immunity.For example, Colorado, Indiana, New Jersey,Michigan, and Washington explicitly waiveimmunity for acts or omissions that amount togross negligence or willful misconduct.

• Comparatively, Illinois and Minnesota, denyimmunity for willful and wanton misconduct,but do not mention gross negligence in theirstatutes

• Immunity is provided for AED users at thestate level. In some states, many differentstatutes play a role in determining whatliability exposure, if any, the school and staffmembers would face.

• For example, in Illinois, at least four differentstatutes are relevant in determining whatliability protection is afforded to schoolpersonnel using an AED

Not Always Clear Cut

• Airlines Industry• AA ‒ Trip from Rhode Island toVegas with stop over in Chicago

• Tobin v AMR, American Airlines• July 8, 2009 Decided• 637 F. Supp 2d 406 (2009)

• The Illinois Automated External DefibrillatorAct ("the AED Act") provides that "[a]n AEDuser is not liable for civil damages as aresult of any act or omission involving theuse of an automated external defibrillator inan emergency situation, except for willful orwanton misconduct, if the requirements ofthis Act are met."

• 410 Ill. Comp. Stat. § 4/30 (d) (2005). Unlike the Sections discussed below, this portion of the AEDAct has not been amended.

(a) A person acquiring an automated external defibrillator shall take reasonablemeasures to ensure that:

(1) the automated external defibrillator is used only by trained AED users;(2) the automated external defibrillator is maintained and tested according to

the manufacturer's guidelines;(3) the automated external defibrillator is registered with the EMS system

hospital in the vicinity of where the automated external defibrillator willprimarily be located which shall oversee utilization of the automated externaldefibrillator and ensure that training and maintenance requirements are met;and

(4) any person who renders out-of-hospital emergency care or treatment to aperson in cardiac arrest by using an automated external defibrillatoractivates the EMS system as soon as possible and reports any clinical useof the automated external defibrillator.

(b) A person in possession of an automated external defibrillator shall notify anagent of the local emergency communications or vehicle dispatch center ofthe existence, location, and type of the automated external defibrillator.

410 Ill. Comp. Stat. § 4/20 (2000).

• Defendants have submitted no evidence that the Illinoislegislature intended to exempt airlines from the requirements ofthe statute, nor have they provided a basis for this Court toconclude that FAA requirements render portions of the statuteinapplicable to American Airlines. In the Court's view, neitherAluma Systems nor McClintock supports the conclusion thatsubstantial, but incomplete, compliance is sufficient for an entityto claim the benefits of an immunity statute. The Court thusdenies summary judgment for American Airlines under the May2007 version of the AED Act.

(a) A person acquiring an automated external defibrillator shall take reasonablemeasures to ensure that:

(1) (blank);(2) the automated external defibrillator is maintained and tested according to

the manufacturer's guidelines;(3) any person considered to be an anticipated rescuer or user will have

successfully completed a course of instruction in accordance with thestandards of a nationally recognized organization, such as the AmericanRed Cross or the American Heart Association, or a course of instruction inaccordance with existing rules under this Act to use an automated externaldefibrillator and to perform cardiovascular resuscitation (CPR); and

(4) any person who renders out‑of‑hospital emergency care or treatment to aperson in cardiac arrest by using an automated external defibrillatoractivates the EMS system as soon as possible and reports any clinical useof the automated external defibrillator.

(b) A person in possession of an automated external defibrillator shall notify anagent of the local emergency communications or vehicle dispatch center ofthe existence, location, and type of the automated external defibrillator.

(Source: P.A. 95‑447, eff. 8‑27‑07.)

• American Airlines asserts that it is entitled toimmunity under the most recent version of the AEDAct, which it claims should be applied retroactively.The AED Act's August 2007 amendments removedthe AED registration requirement, but retained thenotification requirement. Under Illinois law, astatutory amendment will only be given retroactiveeffect if the legislature has "expressly prescribedthe statute's temporal reach," and made itretroactive.

• American Airlines argues that it is entitled toimmunity under the Illinois Good SamaritanAct for claims arising from attempts byAmerican Airlines' agents to use CPR on Mr.Tobin

• Any person currently certified in basic cardiopulmonaryresuscitation who complies with generally recognizedstandards, and who in good faith, not for compensation,provides emergency cardiopulmonary resuscitation to aperson who is an apparent victim of acutecardiopulmonary insufficiency shall not, as the result ofhis or her acts or omissions in providing resuscitation, beliable for civil damages, unless the acts or omissionsconstitute willful and wanton misconduct.

• 745 Ill. Comp. Stat. § 49/10 (1998).

• On-duty flight attendants are required to receivetraining in emergency services, and are notpersons who "volunteer their time and talents."They are not "good Samaritans" as that term isused in the statute; rather, they are professionalsperforming services within their job duties. Theyperform such services for compensation, and thusare not entitled to immunity under the GoodSamaritan Act.

Lessons Learned from Tobin

• Legislatures need to craft immunityprotections carefully

• Retroactive fixes will not always apply,unless specified

• Good Samaritan immunity may not be asinclusive as commonly thought

Maintenance

Maintenance

• Some commentators have opined that in thefuture AEDs will become as common as otherpublic safety/life saving devices, such as fireextinguishers and smoke In an interesting

• Approximately 16 million homes contain smokedetectors that are inoperable because of deador missing batteries.

• Courts have historically held that once afire extinguisher is provided, the owner isthen under an obligation to maintain theextinguisher.

• Indiana has statutorily addressed thisissue, and has mandated an affirmativeduty on the AED owner to both maintainand test the device in accordance with themanufacture’s guidelines

Maintenance Issues

• A motorist suffered SCA, called 9-1-1• When the FDNY EMTs sought to shockpatient, AED gave a reading of "SERVICEMANDATORY" and failed to function.

• 2 batteries on ambulance• 10 years old and 6 years old (off brand)

• City tried to escape liability

• Asserted the AED was defective

• Raised immunity as a defense

• Municipality is immune from negligence claims arising out ofthe performance of its governmental functions

• unless the injured person establishes a special relationship with themunicipality which would create a special duty of protection.

.

• Court stated that when the EMTs undertookaffirmative action to treat the patient theywere required to do so with due care.

• Court also stated that triable issues of factexisted regarding if the EMTs departed fromproper practice in using a defibrillator thatwas not capable of producing a shock.

Lesson

• Be sure to follow themanufacturers recommendationswhen servicing the AED.• This includes purchasing thebatteries recommended by themanufacturer

Ongoing Cases

• Malofiy v Tri-Hampton RescueSquad and Upper SouthamptonPolice Department• Police officer attempted to use AED“Service Mandatory”

• Alleged negligent in storage andmaintenance

• Status: Forum Challenge ‒ Nov 15, 2010

Ongoing Cases

• Abramson v Ritz-Carlton Hotel• AED malfunction / lack of staff training• Largely been procedural in nature

• Last Action: October 6, 2010, focused on duty oftravel agent

• Hotel is in Jamaica

Duty to Inform?

Duty to Inform?• Parents of teenager who died of suddencardiac arrest while playing in an ice hockeygame brought wrongful death action againstoperators of facility, alleging that theoperators had duty to notify facility's users ofexistence and location of automatic externaldefibrillator (AED) at facility.

• ROTOLO et al., Plaintiffs and Appellants, v. SAN JOSE SPORTS AND ENTERTAINMENT• 151 Cal.App.4th 307, Court of Appeal, Sixth District, California.

Duty to Inform• At the time, No duty to installAED ‒ but if they did then theywould have immunity

• Here, no special relationshipexisted ‒ only duty (as alandlord/tenant) was to summon911

• “We have found no precedent in the casesdiscussing the special relationship of aproperty owner to those using the propertythat supports the imposition of a duty toprovide advance notice to invitees to theproperty that certain lifesaving equipment isavailable.” at 315.

• Fire Extinguishers, First Aid Kits, and Exits

• Parents argued• “common knowledge” that cardiac arrest is theleading cause of death among athletes

• Since they acquired AEDs, then must have“actual or constructive knowledge” of theeffectiveness of an AED

• Prior incident at another facility / same leaguewhere AED was successful

• The court rejected these arguments statingthat “Here respondents, who provide a venuefor those who wish to participate in sportsevents, are not subject to the sameheightened duty of care to protect invitees asare bar proprietors, common carriers, orschool districts”

Duty to Inform

• In other words, although a plaintiffprimarily assumes the “risks inherent inthe sport itself,” defendants also have a“duty to use due care not to increasethe risks to a participant over andabove those inherent in the sport.”• Assumption of Risk Doctrine

• Creating that such a duty would further thepurpose of the statutes, namely toencourage the use of AEDs to save lives.

• However, the court declined to “fill a voidthat the Legislature has failed to fill”• Reason: Separation of Powers

• No Super-Legislative• Detailed Scheme• Surely Discussed and Thought about

Advice / Location

Yamada v FriendSupreme Court of TexasDecember 17, 2010

• Suit against an emergencyphysician who advised a waterpark about safety proceduresand placement of defibrillators.

• Suit was brought after a 12 yearold girl died following hercollapse at the water park

• AED was not used following thecollapse of the 12 year old

• Texas Supreme Court dismissed thecharges against the physician, citing alack of patient/doctor relationship andthe fact that the Plaintiff did notpresent medical expert testimony, asis required in Texas.

• 12 year old died in July of 2004, thiscase was decided in December 2010.

• Balance to strike• GOAL: Protect and Encourage AED use

• Impose conditions after the fact then that scaresaway people from voluntarily getting the devices

• However, by not having the sign a life was arguablylost

HRSA ‒ Rural Access toEmergency Devices Program

• The purpose of the Rural Access to EmergencyDevices (RAED) Grant Program is to providefunding to rural community partnerships topurchase automated external defibrillators (AEDs)that have been approved, or cleared for marketingby the Food and Drug Administration; and providedefibrillator and basic life support training in AEDusage through the American Heart Association, theAmerican Red Cross, or other nationallyrecognized training courses. The legislation thatcreated this program states that awards will bemade to community partnerships.

HRSA ‒ Rural Access toEmergency Devices Program

In 2006, approximately 275AEDs were placed andapproximately 650 laypersons and first responderswere trained in theirutilization.

HRSA RAED Program

In FY 2008 we funded 13grantees, approximately700 new AEDs purchasedwith an additional 2,100persons trained;

FY 2007 levels: 675 AEDswere purchased and anestimated 2,000 personswere trained

• Rural Access to Emergency DevicesThe purpose of the Rural Access to Emergency Devices (RAED) GrantProgram is to provide funding to rural community partnerships to purchaseautomated external defibrillators (AEDs) that have been approved, orcleared for marketing by the Food and Drug Administration; and providedefibrillator and basic life support training in AED usage through theAmerican Heart Association, the American Red Cross, or other nationally-recognized training courses. A community partnership is composed oflocal emergency response entities such as community training facilities,local emergency responders, fire and rescue departments, police,community hospitals, and local non-profit entities and for-profit entities. Inthe past, AEDs have been placed in colleges, universities, communitycenters, local businesses, law enforcement and ambulance vehicles, firetrucks, 911 dispatch centers, and offices. The grant creates opportunitiesto educate the public on AEDs via advertisements, news media, schools,churches, shopping malls, restaurants, home owner associations,businesses, local government bodies, security firms, etc. The 13 currentRAED grantees are located in 12 States across the Nation (Alaska,Arizona, Delaware, Florida, Iowa, Illinois, Louisiana, New Jersey, Nevada,Pennsylvania, Texas and Utah).

HRSA RAED Program

Upcoming Opportunity:

$100,000 for up to three years• Up to 10 Awards

RFP Available in December 2010 / early January 2011Application due date February 2011

• Program Coordinator: Eileen Holloran [email protected]

HRSA ‒ Public Access to DefibrillationDemonstration Projects

• The purpose of the Public Access toDefibrillation Demonstration Project (PADDP) isto award grants to political subdivisions ofStates, Indian tribes and tribal organizations todevelop and implement innovative,community‐based programs that providecardiopulmonary resuscitation (CPR) andautomated external defibrillation (AED) tocardiac arrest victims, provide training tocommunity members in CPR and AED usage,and to maximize community access to AEDs.

• In FY 2006,approximately 475AEDs were placed andapproximately 559 laypersons and firstresponders weretrained to use them.

HRSA ‒ Public Access to DefibrillationDemonstration Projects

Contact Information

Andrew R. Roszak, JD, MPA, EMT-ParamedicSenior Public Health AnalystOffice of Special Health Affairs

Health Resources and Services AdministrationUS Department of Health and Human Services

[email protected]

Education

Effective Public Advocacy_ROSZAK