Verdugo v. Target: Does A Retailer Have A Common Law Duty to Have an AED Available?

California Supreme Court to rule whether the duty to provide ‘emergency first aid’ requires having external defibrillators

By Greg Slusser, greg@defibtech.com

A case on the California Supreme Court’s docket questions whether or not a common law duty requires retailers to have automated external defibrillators (AEDs) ready to use in stores to treat sudden cardiac arrest, which strikes about 380,000 Americans each year and is the leading cause of death in the U.S.

In Verdugo v. Target Corporation, a three-judge panel of the Ninth Circuit U.S. Court of Appeals voted 2-1 to certify this question to the California Supreme Court: "In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an AED for cases of sudden cardiac arrest?" Counsel have been filing briefs on the case. The dates for the upcoming oral arguments and decision have yet to be determined.

Mary Ann Verdugo suffered sudden cardiac arrest while shopping at a Target store in Pico Rivera, Calif., in 2008. No AED was available at the store. Paramedics took several minutes to arrive, and Verdugo died at the scene, according to a report in Courthouse News. The report also noted that Target sold AEDs on its website at the time of the incident but does not require them to be installed in its stores.

Verdugo’s mother and brother sued Target for wrongful death, but Target disputes it has a duty to install AEDs in its stores. After a Los Angeles federal judge ruled in favor of Target, the Verdugos appealed to the Ninth Circuit.

Mary Newman, president of the Sudden Cardiac Arrest Foundation, said her organization encourages workplaces, including retail establishments, to prepare for sudden cardiac arrest by educating employees in CPR and the use of AEDs, and by ensuring that AEDs can be retrieved quickly when SCA occurs. “Deploying AEDs in retail establishments can help reduce the time to treatment for victims of sudden cardiac arrest — something that can benefit employees and customers alike,” she said.

A retailer’s liability depends on how a court interprets standard of care
AED program expert Richard A. Lazar is the founder and president of Readiness Systems, which helps retailers and other organizations create and maintain operationally ready and risk-managed AED programs. He said the standard of care is most commonly determined by court decisions over time. These “common law” decisions use the concepts of “community expectations” and “reasonableness” to determine what the standard of care is in particular circumstances. Therefore, even though California has no statute requiring AEDs in retail establishments, the state’s supreme court may rule that having an AED is required to meet the standard of care for providing emergency first aid.

Lazar used the example of grocery stores having water or other kinds of liquid on the floor to explain how common law works. Over the years, people have slipped and fallen, have injured themselves, and have filed lawsuits as a result. The accumulation of court decisions in favor of the injured parties has created the current common law. Today, stores commonly place warning signs by spilled liquid and promptly clean it up because they clearly have a common law duty to do so.

Through the upcoming Verdugo v. Target decision, the California Supreme Court will decide whether the common law duty for commercial property owners to provide emergency first aid requires having an AED available. In the Ninth Circuit ruling on Verdugo v. Target, dissenting judge Judge Harry Pregerson wrote that he believed state law requires a store to meet the "insignificant burden" of acquiring an AED and training employees how to use it. "

How can a retailer determine what the standard of care is and meet it?
The California Supreme Court will hold Target accountable to a standard of care that is nebulous; the court will either rule that Target did or did not meet the standard, and that’s how common duty law works, Lazar said. It’s up to the retailer to determine what is reasonable and foreseeable according to community expectations. A retailer may assume that understanding and meeting the requirements of state and local statutes pertaining to AEDs is the best way to meet the standard of care, but Lazar warned that “(statutory) laws don’t determine what the standard of care is.”

Given this legal environment, Lazar said retailers must understand the risks involved in having, and not having, an AED program and make a decision knowing these facts. “The best standard of care is common sense,” he stated.

Retailers wishing to have an AED program should implement one that will be operationally ready over the long term and that manages risk effectively.

Trends point to continued demand for AEDs
Across the nation, AEDs are becoming required, encouraged or expected:

  • Oregon mandates AEDs in businesses of 50,000 sq. ft. or more with more than 25 visitors per day.
  • Retailers with chain-wide AED programs include London Drugs and LA Fitness. London Drugs has AEDs is 69 stores and has trained 1,100 employees. The LA Fitness AED program has saved 50 lives.
  • Amusement parks, airlines, fitness centers, transportation authorities and municipalities have been among the entities that have paid significant damages due to AEDs not being available to revive victims of sudden cardiac arrest.

Having an AED on the premises, rather than depending on EMS to travel to a retail store, is important because experts recognize “speed to shock” is the most important aspect of AED lifesaving. Up to 90% of sudden cardiac arrest victims receiving AED treatment within two minutes survive, but the chances of survival decrease with each passing minute. By 10 minutes, most die.

A Johns Hopkins study found that “speed is more important than training.” On average, early AED defibrillation before EMS arrival seems to nearly double a victim’s odds of survival after OHCA (out-of-hospital cardiac arrest),” the study’s authors wrote.

A well-designed and managed AED program increases rescuer confidence
Having a sudden cardiac arrest victim die in your store may result in a lawsuit, whether you have an AED program or not. The most common reasons why individuals with access to AEDs fail to save victims involve a lack of confidence — they are afraid, uncertain or don’t feel empowered to use the technology, Lazar said.

Technological improvements in AEDs aim to build user confidence by making them easier to use than ever. All provide real-time audio instructions for rescuers, and some others have added video and text instructions and training capabilities. For example, when the Defibtech VIEW AED’s audio says and text reads, “Place pads on patient’s chest,” the video shows exactly where to place the pads.

A survey by Defibtech and Harris Interactive found that an AED with video, audio and text instruction would be used with confidence by up to 97% of the respondents.

Today, most sudden cardiac arrest victims don’t have a chance to be saved because an AED is not available. There are 2.4 million AEDs in the United States right now, but 30 million are needed to significantly improve the sudden cardiac arrest survival rate of 8 percent, according to Lazar.

“We’re taking a therapeutic device ... and putting in the hands of lay people,” he said. Yes, there may be a mistake made — that can happen in an emergency, he stated. “The retail industry is grapping with the risk question right now. Their focus has to be on risk management — doing (an AED program) in the right way, with the right design, the right people and the right policies.”

Retailers who design an AED program correctly, Lazar said, will “typically do the right thing” when responding to a sudden cardiac arrest victim. He encouraged retail establishments to join the battle against sudden cardiac arrest by starting an AED program that’s operationally ready and that projects a culture of health and safety among its customers and employees. “If you want to have an AED program,” he said, “you can do it and you can do it well.”

Greg Slusser is a VP for Defibtech, the designer and manufacturer of the Lifeline and ReviveR  families of AEDs and related accessories. He can be reached at greg@defibtech.com.


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