A new wave of defibrillator litigation is starting to attack businesses that have the devices but don’t use them – or don’t have plans in place to make sure they are used properly in an emergency.

Automated external defibrillators (AEDs) are used to treat individuals suffering sudden cardiac arrest.

In September 2004, the Food and Drug Administration approved over-the-counter sales of defibrillators, which some experts said would make it easier for plaintiffs’ attorneys to prove that businesses have a duty to have a defibrillator on their premises and breach that duty if they fail to do so.

In the wake of the FDA’s decision, more and more establishments – including ice rinks, schools and some retail businesses – have gradually begun to purchase AEDs. According to Jamie Froman, director of marketing for commercial AEDs for Philips Medical Systems in Seattle, a significant number of AEDs have also been installed in shopping malls. (Philips manufactures the HeartStart Home Defibrillator, the only AED that has been approved for over-the-counter use.)

Now a new breed of cases is emerging against these entities – when the devices aren’t used or aren’t used properly.

In March, a 17-year-old ice hockey player collapsed and died while playing at a San Jose, Calif. rink. The family sued the city and the team for wrongful death. The rink had a defibrillator, but allegedly no one who knew how to use it was nearby when the player collapsed, and no one told the EMTs who eventually arrived that a defibrillator was available.

And late last year, the parents of a 20-year-old University of Pittsburgh student sued after their daughter suffered brain damage after an irregular heart beat caused her to lose consciousness during class. Campus police who responded to the emergency didn’t have a defibrillator on hand.

According to the complaint, Erica Lynn Pratt had no previous heart problems, and although the university’s website indicates that all campus police carry a defibrillator, the two officers who responded in this case didn’t have them and failed to perform chest compressions on the student.

Richard Lazar, founder and CEO of AED Risk Insights, a Portland, Ore., company that provides risk management and legal information services related to AEDs, believes this second wave of litigation has only just begun.

“More than 90 percent of AED deployments are probably flawed,” he said.

In Lazar’s view, the key to avoiding these suits is to have a well-developed plan for deploying an AED in the event of an emergency.

“Comprehensive AED programs – not just AEDs – are required to reduce liability risks and improve the chances of saving lives,” he said.

Litigation Risks

The first round of defibrillator suits took on businesses that weren’t equipped with defibrillators. A big target of that litigation continues to be health clubs, which are required to have AEDs by an increasing number of states.

“The standard of care is evolving more quickly with respect to the health club industry,” said Lazar. “Health clubs are now at an increasing risk that they will be found liable” if they fail to deploy an AED.

San Mateo, Calif., attorney Mike Danko, a partner with O’Reilly, Danko & Yamane, agreed.

“It’s evidence of negligence if you’re not meeting the standard your competition has set,” said Danko, who recently filed a lawsuit for a family whose son died of sudden cardiac arrest at a 24 Hour Fitness, Inc. club that didn’t have an AED.

But businesses that have defibrillators can still expose themselves to potential litigation in a number of ways, Lazar said.

Problems arise if the devices and all of their components aren’t properly maintained.

Batteries typically expire within one to five years, and either have a date written on them or make a chirping noise when they are depleted. Electrodes have expiration dates written on their packages and last anywhere from one to three years.

In April, a passenger died of a heart attack at the Philadelphia International Airport after two AEDs failed because the batteries were dead.

And even if the machines are in working order, a site that has an AED could still be sued if the device isn’t easily accessible, leading to a longer response time. Lazar cited an example where a 14-year-old student at a Rhode Island high school died of sudden cardiac arrest during baseball practice because the only AED in the building was locked in the school nurse’s office – 1/5 of a mile from the baseball field. This case caused schools across the state to begin buying defibrillators.

Yet another litigation risk is when employees fail to use a device either because they lack awareness of it or haven’t been trained in its use.

Although “an untrained person can use an AED within about 90 seconds,” Lazar said, “training increases the comfort level” with using the device and thus increases the likelihood that someone will do so when needed.

While AEDs are widely regarded as easy to use, Lazar predicted suits over using the devices improperly will still be filed.

But Boston attorney Dean Nicastro of Pierce & Mandell noted that a suit based on the failure to use an AED would also require proof that in a given instance, the business had a duty to use it.

Designing a Program

To avoid litigation, Lazar recommended that companies develop a deployment program that quickly brings together the sudden cardiac arrest victim, an AED user and the AED.

A good program would have the following components:

• Short response time

Lazar suggested having enough AEDs present “to ensure one can be retrieved and used within about four minutes anywhere at the site.” Further, businesses must have a method for communicating that the AED is needed quickly enough for it to be useful. Lazar said this might include the use of an intercom system or any other quick method of contacting someone who can assist.

• Comprehensive policies

A business should have a policy that “authorizes any willing rescuer to use an AED,” Lazar said. “Restrictive policies that limit AED use to only trained operators create a risk it won’t be retrieved and used when needed.”

Although untrained persons should be authorized to use the device, companies should also have seminars to train as many workers as possible.

In addition, there should be procedures in place to check the device frequently to ensure that the batteries and electrodes haven’t expired.

• Signs and accessibility

Clear signs are essential to inform people where AEDs are located, Lazar noted.

In addition, an AED must be stored such that it can be “quickly retrieved,” rather than locked in an office or closet.

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