Because 80% of sudden cardiac arrests occur at home, the Food and Drug Administration decided in September 2004 that consumers could buy a device called an automated external defibrillator ("AED") to jump-start hearts.
In 2006, Health and Safety Code § 104113 was passed into law which requires health studios throughout the state to acquire and maintain defibrillators. There has been a great deal of concern that this applies to gyms maintained by homeowners associations because health studies were broadly defined to include facilities that maintained body building equipment.
Benefits. Sudden cardiac arrests are deadly because death can occur within minutes. Each minute that passes without defibrillation decreases the victim's survival chances by 10%. Ten minutes after the sudden cardiac arrest, the patient has a 1% chance of survival. If an electrical shock from an AED can be delivered within 5 minutes of a sudden cardiac arrest, there is a 50% survival rate. Even though ambulances can often arrive within 9 minutes of a 911 call, it is usually too late to save the victim. These statistics have given rise to requests by owners that boards purchase AEDs and train employees to use them. Boards, managers and attorneys have been cautious about the devices for fear of potential liability.
Potential Liability. The purchase of AEDs by associations can create liability if the victim of a sudden cardiac arrest were to suffer brain damage or die because of alleged negligence by the association. Plaintiff's lawyers would likely claim the association induced their client to rely on the association's employees to save his life. They would allege that but for the inducements and the association's negligence their client would have taken other precautions to protect against a heart attack. The negligence alleged would include one or more of the following: (i) the association's employees were too slow to respond to the call for help, (ii) the association's employees failed to properly operate the AED and/or (iii) the AED malfunctioned because the association failed to properly maintain it.
Limited Protections. As provided for in Civil Code § 1714.21(b) organizations that use AEDs have immunity only if they comply with Health & Safety Code § 1797.196. The statute has a number of significant requirements that must be followed to the letter.
Opinion re Applicability to CIDs. On February 1, 2007, the Legislative Counsel of California issued an opinion that fitness facilities operated or maintained by common interest developments do NOT fall under this statute and were not required to maintain defibrillators.
Recommendation: Each association must decide for itself if the benefits of purchasing an AED outweigh the risks. Boards should consult legal counsel and the association's insurance carrier as part of their evaluation process. Refusal by the carrier to insure the use of AEDs would seem to preclude their use. If an association decides to purchase one or more AEDs, it must carefully and fully comply with all statutory requirements and manufacturing guidelines for using and maintaining them.
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