Because 80% of sudden cardiac arrests occur at home, the Food and Drug Administration decided in September 2004 that consumers could buy an automated external defibrillator ("AED") to jump-start hearts.
In 2006, Health and Safety Code § 104113 was passed into law, requiring 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 could 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 maintain it properly.
Limited Protections. As provided for in Civil Code § 1714.21(d)(1), "A person or entity that acquires an AED for emergency use pursuant to this section is not liable for any civil damages resulting from any acts or omissions in the rendering of the emergency care by use of an AED if that person or entity has complied with subdivision (b) of Section 1797.196 of the Health and Safety Code." The statute has a number of requirements, such as:
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(b) (1) In order to ensure public safety, a person or entity that acquires an AED shall do all of the following:
(A) Comply with all regulations governing the placement of an AED.
(B) Notify an agent of the local EMS agency of the existence, location, and type of AED acquired.
(C) Ensure that the AED is maintained and tested according to the operation and maintenance guidelines set forth by the manufacturer.
(D) Ensure that the AED is tested at least biannually and after each use.
(E) Ensure that an inspection is made of all AEDs on the premises at least every 90 days for potential issues related to 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.
(F) Ensure that records of the maintenance and testing required pursuant to this paragraph are maintained.
(2) When an AED is placed in a building, the building owner shall do all of the following:
(A) 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.
(B) 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.
(C) Next to the AED, post instructions, in no less than 14-point type, on how to use the AED.
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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 whether 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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