By Nancy I. Sidoruk, Esq.
Some community association boards struggle with whether or not to install Automatic External Defibrillators (“AEDs”) in common area facilities. While possible AED advantages are evident—they can be instrumental in saving lives—boards are wise to consider potential liabilities involving their installation and use.
While California law contains a “Good Samaritan” type of shield from liability involving AEDs, not all associations can meet the conditions necessary to receive the law’s protection.
Immunity statutes also do not prevent lawsuits or claims involving AEDs from being brought, but simply protect against awards of damages. It is therefore important for an association with an AED to have sufficient insurance coverage for claims that could arise out of AED installation and use, including use by employees, agents and directors or other association volunteers.
Civil Code section 1714.21 provides immunity to persons who render emergency care by use of an AED and to persons or entities who acquire an AED for emergency use. However, Health and Safety Code section 1797.196 establishes multiple prerequisites for persons or entities who acquire AEDs to qualify for the immunity afforded under the Civil Code. Despite these statutes, liability could potentially result from negligence in AED installation, maintenance and operation, and from failure to strictly comply with the statutory requirements and their continuing obligations for regular maintenance, testing, training, reporting, recordkeeping and more. Volunteer turnover and other personnel changes can make compliance challenging. Before installing an AED, community association boards should become familiar with the details of these requirements and determine whether or not compliance is achievable.
In other words, users/operators of an AED would be immune from liability if the device were operated in a manner that was neither grossly negligent nor intended to cause harm. Note that if a doctor or nurse is going to be using the AED, they should check with their own malpractice insurance carrier as they may not have the same protections from liability as someone who is not a trained health care provider. The acquirer/provider of the device (the association) would likely also be immune if it complies with all of the statutory requirements in Health and Safety Code section 1797.196.
The burden of meeting those statutory requirements is a significant continuing obligation. Health and Safety Code section 1797.196(b)(1) provides, in pertinent part, that a person or entity that acquires an AED shall do all of the following:
- Comply with all regulations governing the placement of an AED.
- Notify an agent of the local EMS agency of the existence, location, and type of AED acquired.
- Ensure that the AED is maintained and tested according to the operation and maintenance guidelines set forth by the manufacturer.
- Ensure that the AED is tested at least biannually and after each use.
- Ensure that an inspection is made of all AEDs on the premises at least every 90 days for potential issues related to the operability of the device, including a blinking light or other obvious defect that may suggest tampering or that another problem has arisen with the functionality of the AED.
- Ensure that records of the maintenance and testing required pursuant to [Health and Safety Code section 1797.196] are maintained.
For an AED placed in a building, Health and Safety Code section 1797.196(b)(2) requires the building owner to do all of the following:
- At least once a year, notify the tenants as to the location of the AED units and provide information to tenants about who they can contact if they want to voluntarily take AED or CPR training.
- At least once a year, offer a demonstration to at least one person associated with the building so that the person can be walked through how to use an AED properly in an emergency. The building owner may arrange for the demonstration or partner with a nonprofit organization to do so.
- Next to the AED, post instructions, in no less than 14-point type, on how to use the AED.
Aside from statutory requirements, which are subject to change, AED manufacturers and installers also have their own requirements. Most require that persons on-site are trained in AED use, and some associations have removed AEDs because installers will not service an AED (not even installing new batteries) unless on-site persons are trained. This poses an additional challenge, especially for communities without on-site staff. Finally, if an association installs an AED and later removes it, removal should be done with clear, documented, advance notice to the membership, who may have built up an expectation that an AED is there and developed reliance upon its presence.
This discussion of potential liabilities involving AEDs is not exhaustive. Community association boards are encouraged to consult with their association’s legal counsel, insurance carrier(s) and potential AED supplier and maintenance provider to learn more. For additional information about case law and legal principles involving AEDs, also see “AED Requirements Under California Law.”