In a procedurally complicated case resulting in a 30 page opinion, the California Supreme Court found that the statute governing immunity for acts or omissions in the rendering of emergency care by use of an automated external defibrillator (AED) did not create a duty for a business to have an AED available.

The case, initially filed in the Los Angeles County Superior Court, was removed to federal court by Target. Target filed a motion to dismiss on the grounds that the complaint failed to state a cognizable cause of action, and the court granted Target’s motion. Plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, arguing that the court should recognize that a duty to provide an AED exists under the common law. A three-judge panel of the Ninth Circuit certified a single question to the California Supreme Court. The question was “whether, under California law, the common law duty of reasonable care that defendant Target Corporation owes to its customers includes an obligation to obtain and make available on its business premises an automated external defibrillator for use in a medical emergency.”

On Aug. 31, 2008, 49-year-old Mary Ann Verdugo was shopping at a large Target store in Pico Rivera, Calif., with her mother and brother when she suffered a sudden cardiac arrest. Bystanders immediately called 9-1-1 and paramedics were dispatched from a nearby fire station. Resuscitation attempts failed. At the time, Target did not have an AED available in its store.

Plaintiffs, Verdugo’s mother and brother, filed the underlying lawsuit, alleging that Target breached the standard of care by failing to have an AED available. Initially, plaintiffs alleged that the AED was an essential element of the life-saving first aid that Target had an obligation to provide to its customers. The complaint alleged that, due to the 300,000 people who suffer sudden cardiac arrest in the U.S. and the large number of people who shop at Target stores, Target should have known it would take several minutes for 9-1-1 responders to arrive, making an AED a medical necessity. The complaint noted that AEDs are relatively inexpensive and that Target actually sold them over the Internet for approximately $1,200.00 The complaint stated that “[t]he inexpensive availability of AEDs and their ease of use with even minimal training have led us to on-site CPR and AED assistance to now be expected as part of first aid response.”

The court received extensive briefing from both sides. In its opinion, the court reviewed medical literature from the American Heart Association (AHA) stating that about 360,000 victims of sudden cardiac arrest die before they reach a hospital each year; less than 10% survive. The court noted that a common arrhythmia precipitating cardiac arrest is ventricular fibrillation, and that death follows unless a normal heart rhythm is restored within minutes. The court then reviewed the history of AEDs, how they were developed and what they do, along with the fact that in the mid-1990s the AHA began a national public health initiative to educate the public and lawmakers about the significant death rate from sudden cardiac arrest, and to promote the acquisition and use of AEDs. The court noted that between 1995 and 2000, 50 states passed immunity statutes, granting legal immunity under specified circumstances to nonmedical entities and lay rescuers who used AEDs.

The court then went into the specifics of the California AED immunity statute. The statute states that any person or entity that acquires an AED will not be liable for any civil damages resulting from any acts or omissions in the rendering of emergency care, if the person or entity complies with the statute. The statute requires that the AED be maintained and regularly tested, that it is rechecked for readiness after each use and at least once every 30 days, that the EMS system be notified as soon as possible, and that no less than one employee be trained in CPR and AED use for each AED acquired. The statute further requires a written plan describing the procedures to be followed, that tenants in a building in which an AED is placed be notified of the location of the AEDs annually, and that when an AED is placed in a public or private school, staff be notified of the AED locations. The statute specifically states that “Nothing in this section…may be construed to require a building owner or manager to acquire and install an AED in any building.”

Another section of the statute is specific to “health studios” and specifically requires health clubs and fitness centers to acquire and maintain AEDs. Health studio is defined as “a facility permitting use of the facilities and equipment to individuals or groups for physical exercise, body building, reducing, figure development, fitness training or any other similar purpose…” Health studios are the only type of nonmedical setting in which the statute requires AEDs.

Ultimately, the court concluded that there was no common law or statutory duty on Target to have AEDs available, stating that “there is nothing to suggest that the risk of death from cardiac arrest in a big-box store is any greater than the risk from cardiac arrest occurring at any other location that is equally or more distant from existing emergency medical services.” The court left the policy decision of whether AEDs should be required in businesses to the legislature.