Court of Appeals Addresses Duty and Limits of Liability
This year, the Court of Appeals decided three cases involving duties of care in medically related contexts. Each of those decisions proved to be contentious, with no unanimity of opinion by the court in any of the cases. Those decisions, which involved claims of liability against health clubs, laboratories conducting drug testing, and municipal ambulance services, are the subject of this month's column.
In Miglino v. Bally Total Fitness of Greater New York, 20 N.Y.3d 342 (2013), the court held that a statute which requires health clubs to have defibrillators on the premises and personnel trained in their use, did not impose a concomitant duty on the club or its employee to use the device to save a stricken patron. The plaintiff's decedent collapsed while at the defendant's health club. A personal trainer employed by the club rushed to his side. Another employee called 911, made an announcement for assistance from someone with medical training, and then brought the club's automated external defibrillator (AED).
The trainer observed that the decedent was lying on his back, breathing heavily, had normal color and a faint pulse. Although certified to operate an AED and to administer CPR, the trainer did neither—he subsequently indicated it to be his understanding that those measures would be inappropriate when the person is breathing and has a detectable pulse. The trainer went to check on the 911 response and returned to find a doctor and a medical student administering CPR. He would later state that he felt that they were better suited than he was to render assistance. When the ambulance personnel arrived, they unsuccessfully attempted to revive the decedent with the AED.
The plaintiff asserted that the health club failed to provide a person properly certified to operate an AED or to perform CPR, as required by statute, and that the club's employees negligently failed to timely use the AED. The club moved to dismiss for failure to state a cause of action, primarily arguing that it was immune from liability under the Good Samaritan Law. In opposition, the plaintiff argued that the club had statutory and common law duties to use the AED, that the Good Samaritan Law did not apply because the trainer never rendered emergency medical care, and that timely use of the device would have significantly increased the decedent's chances of survival.
In affirming the Supreme Court's denial of the club's motion, the Second Department concluded that it had statutory and common law duties to use the equipment, and that the protections of the Good Samaritan Law were unavailable. Before turning to the Court of Appeals' decision, a brief review of the pertinent statutory provisions is warranted.
General Business Law §627-a  requires every health club with more than 500 members to have at least one AED, and to have at least one person certified to use the device and to administer CPR in attendance during business hours. Pursuant to §627-a  and , health clubs and their staff are public access defibrillation providers, subject to the requirements and limitations of Public Health Law §§3000-a and 3000-b. Public Health Law §3000-a (the Good Samaritan Law) limits liability for the voluntary provision of emergency medical treatment, including use of AEDs, to gross negligence. General Business Law §628 creates a private right of action for persons injured by a violation of this statute, and imposes treble damages and attorney fees.
The Second Department found an implied statutory duty to use the AED. Since §627-a requires the equipment and someone trained to use it, the court reasoned, it would be "anomalous to conclude that there is no duty to use the device should the need arise" 92 A.D.3d 148 (2d Dept. 2011). The court also found that since the trainer came to the decedent's aid, he assumed a duty of care, such that there could be liability at common law for failing to act with due care by employing the AED when required. It found the protections of the Good Samaritan Law inapplicable to claims based upon a failure to use the device at all, as differentiated from claims premised upon improper use of the device.
The Second Department's holding was in conflict with an earlier decision by the First Department in Digiulio v. Gran, 74 A.D.3d 450 (1st Dept. 2010), aff'd, 17 N.Y.3d 765 (2011). In that case, the health club employee trained to use the AED did not do so because he erroneously believed that the device was locked in its glass enclosure and he could not find the key.
The First Department affirmed summary judgment dismissing the action against the club, holding that: §627-a did not implicitly require use of the AED; there was no common law duty to use the device; the club fulfilled its common law obligations by calling 911 and performing CPR; and, any liability flowing from providing assistance would be limited to gross negligence, which did not exist. Without deciding whether the statute imposed a duty to use AEDs, the Court of Appeals affirmed the dismissal in DiGiulio, finding no issue of fact as to whether the failure to access the AED was gross negligence, and that there was no breach of a common law duty to render aid.
In Miglino the court, in a 4-1 decision, resolved that which it had left open in Digiulio, and adopted the First Department's view. In holding that §627-a does not require health clubs to use the AEDs it requires them to have, the majority found that reading it together with the other pertinent statutory provisions evinced "the legislature's intent to protect health clubs and their employees from the risk of liability for ordinary negligence with respect to AEDs." Citing the words "volunteer" and "voluntary" in the statutory provisions, the court concluded that the clubs were not obligated or required to use the devices and that the "legislature is unlikely to have imposed such a new duty absent an express statement, especially given the remedy of treble damages...."
With regard to the common law, the court found that health clubs owe "a limited duty of care to patrons struck down by a heart attack or cardiac arrest while engaged in athletic activities on premises." Citing three Appellate Division decisions, including DiGiulio, the court inferred that calling 911, administering CPR and relying on medical professionals on the scene satisfies that limited duty. However, given the procedural posture of the case, it concluded that dismissal of the common law claim was not warranted.