FEDERAL AED LAW

The following is a summary containing relevant portions of the law(s). This material is not intended as legal advice

and may contain inaccurate or incomplete statements.

Background

The One Hundred and Sixth Congress of the United States of America passed into law

the Public Health Improvement Act which contains the Cardiac Arrest Survival Act

(CASA). The Act was passed on October 26, 2000 and provides for placement of AEDs

in all federal public buildings. It also provides Good Samaritan immunity to apply to

those States without such coverage. It allocates $25 Million dollars for placement of

AEDs in rural areas, $4 Million Dollars for year 2001.

AED Definition

Not defined.

Use Compliance Requirements Summary

· The Secretary of HHS shall establish guidelines with respect to placing automated

external defibrillators (AEDs) in federal buildings.

· The Secretary shall publish in the Federal Register recommendations on the

implementation of placement of AEDs including:

1) Procedures for implementing appropriate training courses in the use of AEDs,

including the role of cardiopulmonary resuscitation (CPR);

2) Procedures for proper maintenance and testing of the devices;

3) Procedures coordinating with appropriate licensed professionals in the

oversight of training in AEDs

4) Procedures ensuring coordination with local emergency medical systems

regarding the placement and incidents of use of AEDs.

· The Secretary shall comply within 180 days of enactment.

CASA does not require that an AED be placed at any building nor does it create a new

cause of action

Use Compliance Text

Section 403, entitled "Recommendations and Guidelines of Secretary of Health and

Human Services Regarding Automated External Defibrillators for Federal Buildings

amends Part B of title II of the Public Health Service Act (42 U.S.C. 238 et seq) by

adding at the end the following:

‘‘Recommendations and Guidelines of Secretary of Health and Human Services

Regarding Automated External Defibrillators for Federal Buildings"

Traci S. Umberger ©6/14/01, Medtronic Physio-Control Corp.

‘‘SEC. 247. (a) GUIDELINES ON PLACEMENT.—The Secretary shall establish guidelines with

respect to placing automated external defibrillator devices in Federal buildings. Such guidelines shall

take into account the extent to which such devices may be used by lay persons, the typical number of

employees and visitors in the buildings, the extent of the need for security measures regarding the

buildings, buildings or portions of buildings in which there are special circumstances such as high

electrical voltage or extreme heat or cold, and such other factors as the Secretary determines to be

appropriate.

‘‘(b) RELATED RECOMMENDATIONS.—The Secretary shall publish in the Federal Register the

recommendations of the Secretary on the appropriate implementation of the placement of automated

external defibrillator devices under subsection (a), including procedures for the following:

‘‘(1) Implementing appropriate training courses in the use of such devices, including the role of

cardiopulmonary resuscitation.

‘‘(2) Proper maintenance and testing of the devices.

‘‘(3) Ensuring coordination with appropriate licensed professionals in the oversight of training of the

devices.

‘‘(4) Ensuring coordination with local emergency medical systems regarding the placement and

incidents of use of the devices.

Liability Summary

Good Samaritan Protections

· Persons using AEDs - any person who uses or attempts to use an AED on a victim

of a perceived medical emergency is immune from civil liability for any harm

resulting from the use or attempted use of the AED, including health care

professionals outside the scope of their license or certification.

· AED acquirers - any person who acquired the device is immune from such

liability, if the harm was not due to the failure of the acquirer: to notify local

emergency response personnel or other appropriate entities of the most recent

placement of the device within a reasonable period of time after the device was

placed; to properly maintain and test the device; or to provide appropriate training

in the use of the device to an employee or agent who used the device.

· Preemption - CASA preempts state law only where state statute does not provide

protection for a user or acquirer. Thus, all users and acquirers are covered--by

state law if state statute provides immunity, or by federal law if no state protection

exists. If state law protects only one of the two classes (user and acquirer), federal

law will fill the gap.

Inapplicability Of Immunity

· For willful or criminal misconduct, gross negligence, reckless misconduct or a

conscious, flagrant indifference to the rights or safety of the victim who was

harmed.

· For licensed or certified health professionals who used the AED within the scope

of their license or certification and within the scope of their employment or

agency.

Traci S. Umberger ©6/14/01, Medtronic Physio-Control Corp.

· For hospitals, clinics, or other entities whose purpose is providing health care to

patients, and the harm was caused by an employee or agent of the entity acting

within the scope of his employment or agency.

· For the acquirer who leased the device to a health care entity and the harm was

caused by an employee or agent of the entity who used the device while acting

within the scope of the employment or agency.

Good Samaritan Text

Section 404, entitled "Good Samaritan Protections Regarding Emergency Use of

Automated External defibrillators" is contained in Part B of title II of the Public Health

Service Act, as amended by section 403, and is amended by adding at the end the

following:

‘‘Liability Regarding Emergency Use of Automated External Defibrillators"

SEC. 248.

(a) GOOD SAMARITAN PROTECTIONS REGARDING AEDS.—Except as provided in subsection

(b), any person who uses or attempts to use an automated external defibrillator device on a victim of

a perceived medical emergency is immune from civil liability for any harm resulting from the use or

attempted use of such device; and in addition, any person who acquired the device is immune from

such liability, if the harm was not due to the failure of such acquirer of the device—

‘‘(1) to notify local emergency response personnel or other appropriate entities of the most recent

placement of the device within a reasonable period of time after the device was placed;

‘‘(2) to properly maintain and test the device; or

‘‘(3) to provide appropriate training in the use of the device to an employee or agent of the acquirer

when the employee or agent was the person who used the device on the victim, except that such

requirement of training does not apply if—

‘‘(A) the employee or agent was not an employee or agent who would have been reasonably expected

to use the device; or

‘‘(B) the period of time elapsing between the engagement of the person as an employee or agent and

the occurrence of the harm (or between the acquisition of the device and the occurrence of the harm,

in any case in which the device was acquired after such engagement of the person) was not a

reasonably sufficient period in which to provide the training.

(b) INAPPLICABILITY OF IMMUNITY.—Immunity under sub-section (a) does not apply to a

person if—

‘‘(1) the harm involved was caused by willful or criminal misconduct, gross negligence, reckless

misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was

harmed;

‘‘(2) the person is a licensed or certified health professional who used the automated external

defibrillator device while acting within the scope of the license or certification of the professional and

within the scope of the employment or agency of the professional;

‘‘(3) the person is a hospital, clinic, or other entity whose purpose is providing health care directly to

patients, and the harm was caused by an employee or agent of the entity who used the device while

acting within the scope of the employment or agency of the employee or agent; or

‘‘(4) the person is an acquirer of the device who leased the device to a health care entity (or who

otherwise provided the device to such entity for compensation without selling the device to the

entity), and the harm was caused by an employee or agent of the entity who used the device while

acting within the scope of the employment or agency of the employee or agent.

Other

‘‘(1) IN GENERAL.—The following applies with respect to this section:

‘‘(A) This section does not establish any cause of action, or require that an automated external

defibrillator device be placed at any building or other location.

‘‘(B) With respect to a class of persons for which this section provides immunity from civil liability,

this section supersedes the law of a State only to the extent that the State has no statute or regulations

that provide persons in such class with immunity for civil liability arising from the use by such

persons of automated external defibrillator devices in emergency situations (within the meaning of

the State law or regulation involved).

‘‘(C) This section does not waive any protection from liability for Federal officers or employees

under—

‘‘(i) section 224; or

‘‘(ii) sections 1346(b), 2672, and 2679 of title 28, United States Code, or under alternative benefits

pro-vided by the United States where the availability of such benefits precludes a remedy under

section 1346(b) of title 28.

‘‘(2) CIVIL ACTIONS UNDER FEDERAL LAW.—

‘‘(A) IN GENERAL.—The applicability of subsections (a) and (b) includes applicability to any action

for civil liability described in subsection (a) that arises under Federal law.

‘‘(B) FEDERAL AREAS ADOPTING STATE LAW.—If a geographic area is under Federal

jurisdiction and is located within a State but out of the jurisdiction of the State, and if, pursuant to

Federal law, the law of the State applies in such area regarding matters for which there is no

applicable Federal law, then an action for civil liability described in subsection (a) that in such area

arises under the law of the State is subject to subsections (a) through (c) in lieu of any related State

law that would apply in such area in the absence of this subparagraph.

‘‘(d) FEDERAL JURISDICTION.—In any civil action arising under State law, the courts of the

State involved have jurisdiction to apply the provisions of this section exclusive of the jurisdiction of

the courts of the United States.

‘‘(e) DEFINITIONS.—

‘‘(1) PERCEIVED MEDICAL EMERGENCY.—For purposes of this section, the term ‘perceived

medical emergency’ means circumstances in which the behavior of an individual leads a reasonable

person to believe that the individual is experiencing a life-threatening medical condition that requires

an immediate medical response regarding the heart or other cardiopulmonary functioning of the

individual.

‘‘(2) OTHER DEFINITIONS.—For purposes of this section:

‘‘(A) The term ‘automated external defibrillator device’ means a defibrillator device that—

‘‘(i) is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act;

‘‘(ii) is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of

determining without intervention by the user of the device whether defibrillation should be

performed;

‘‘(iii) upon determining that defibrillation should be performed, is able to deliver an electrical shock

to an individual; and

‘‘(iv) in the case of a defibrillator device that may be operated in either an automated or a manual

mode, is set to operate in the automated mode.

‘‘(B)(i) The term ‘harm’ includes physical, nonphysical, economic, and noneconomic losses.

‘‘(ii) The term ‘economic loss’ means any pecuniary loss resulting from harm (including the loss of

earnings or other benefits related to employment, medical expense loss, replacement services loss, loss

due to death, burial costs, and loss of business or employment opportunities) to the extent recovery

for such loss is allowed under applicable State law.

‘‘(iii) The term ‘noneconomic losses’ means losses for physical and emotional pain, suffering,

inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of

society and companionship, loss of consortium (other than loss of domestic service), hedonic damages,

injury to reputation and all other non-pecuniary losses of any kind or nature.’’.