NEW YORK, Dec 30 (Reuters) - New York health clubs have a
legal obligation to use automated external defibrillators on
members experiencing cardiac episodes, a unanimous New York
appeals court ruled.
The Appellate Division, Second Department, opinion
published Thursday is the first time the court has recognized
an affirmative duty for health clubs to use AEDs--which are
required to be on-site in New York health clubs, along with an
employee trained to use them--under New York's General Business
Law 627-a.
"Although the statute does not contain any provision that
specifically imposes an affirmative duty upon the facility to
make use of its required AEDs, it also does not contain any
provision stating there is no duty to act," Justice Sandra
Sgroi wrote for the unanimous four-judge panel. "Moreover, it
is illogical to conclude that no such duty exists."
The underlying case was filed in Suffolk County court in
2008 on behalf of Gregory Miglino, who collapsed after a game
of racquetball at a club in Lake Grove, N.Y., owned and
operated by Bally Total Fitness of Greater New York Inc.
According to the court record, another gym member alerted
the front desk, which immediately placed an emergency call to
911. Several Bally employees, including one trained in AED use,
arrived at the scene shortly after with the club's AED and
checked Miglino's pulse.
However, the court noted, the AED was never used on
Miglino. Several minutes later, an ambulance arrived and took
Miglino to nearby Stony Brook Hospital, where he was pronounced
dead.
It is unclear why Bally employees failed to use the AED,
the court wrote. It could be that they acted negligently, but
it also is possible that there was a good reason that they
didn't attempt to revive Miglino with the device, according to
the ruling.
SIMILAR FIRST DEPARTMENT CASE
Regardless, the court concluded that New York law "imposes
an inherent duty to make use of the statutorily required AED"
and the Miglino lawsuit "states a cognizable cause of action to
recover damages based upon Bally's failure to use its AED upon
the decedent."
The Appellate Division, First Department, tackled a similar
issue in its 2010 ruling in Digiulio v. Gran Inc., a case
involving a plaintiff who suffered an apparent heart attack
after exercising at a health club.
While that case involved a motion for summary judgment --
unlike the Miglino case, which involved a motion to dismiss for
failure to state a cause of action -- the First Department
found no viable cause of action against the club owner, ruling
that the "club's employees more than fulfilled their duty of
care by immediately calling 911 and performing CPR."
The New York Court of Appeals dismissed the challenge,
finding that the plaintiff had failed to establish that the
club owner had been grossly negligent in failing to access the
club's AED. But it left open the question of whether the
General Business Law set forth an affirmative duty to use the
AED that clubs are required to provide, the Second Department
noted.
Attorneys for the parties did not immediately return
requests for comment.
The case is Miglino v. Bally Total Fitness of Greater New
York Inc et al., in the Supreme Court of the State of New York,
Appellate Division, Second Judicial Department, No.
2010-06556.
For the plaintiff: Demi Sophocleous of Morrison Mahoney.
For the defendant: John Decolator.
(Reporting by Jessica Dye)
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