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LEGAL MATTERS: Defibrillators in MA’s Public Places

Wednesday, January 09, 2013

 

A controversial lawsuit in California may make Christmas shopping safer this December.

The lawsuit stems from a fatal heart attack a 49-year-old woman suffered at a Target store. Several of her relatives are suing Target arguing the store should have had an automatic external defibrillator (AED) on hand to save her life. If the California Supreme Court decides the store’s failure to have an AED was negligent, retailers across the country may rush to buy the $1,200 - $1,700 devices. The fear of lawsuits – not a government mandate – might force retailers to do more to protect their customers.

Negligence

Stores are negligent when they fail to take reasonable steps to protect their customers from reasonably foreseeable dangers. Sometimes the negligence is clear – like when they violate fire and building codes. Other times, juries have to decide what dangers are “foreseeable” and what stores should “reasonably” do to protect customers from them. That’s when things become murky and controversial.

AED’s undoubtedly save lives; 90% of the people who suffer sudden cardiac arrest die before they reach a hospital and AED’s could save 40,000 of them every year. But how many people have heart attacks at Target? And if it is reasonable to require Target stores to have AED’s, what about smaller stores like Restoration Hardware? Would it be different if AED’s cost $100? Or $5,000? More broadly, who should be answering these questions, a jury of 12 random people? Doctors? Elected officials?

In the Target case, there was no law requiring the store to have an AED but one federal judge still ruled Target was negligent. As the Courthouse News Service reported, Judge Harry Pregerson held: "Because of the reasonable foreseeability that a . . . Target customer could suffer sudden cardiac arrest, the insignificant burden of acquiring an AED and training employees on how to use the simple device, and the virtual certainty of death if an AED is not used within minutes of the onset of sudden cardiac arrest, . . . Target had a duty to have available an AED in its store."

It is unclear whether his decision was influenced by the fact that Target advertises AED’s on its web site.

Massachusetts Law

Massachusetts law only requires AED’s in health clubs. The local American Heart Association chapter is lobbying the state legislature to increase their availability in public places - especially in schools - but past attempt by others to require them in schools and elderly housing developments have failed.

Lawsuit verdicts in negligence cases – not laws - have held businesses responsible for having inadequate security lighting, for improperly screening employees resulting in reckless drivers working as bus drivers, and for designing pool drains with enough suction to trap small children. As a result, parking lots, buses and pools are now safer. It remains to be seen whether lawsuits - or laws - will make shopping safer by making AED’s the norm in Massachusetts department stores.  

 

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