A defibrillator, which most people are familiar with by watching people get shocked with paddles by the doctors on the television show ER, is the only device that can save a person in such a condition. It stops the chaotic electrical heart activity and allows the heart to return to a normal rhythm. An Automated External Defibrillator (AED) works through a built-in computer that assesses the heart rhythm. The computer judges whether defibrillation is needed and then administers the appropriate level of shock. The user is guided by audible and/or visual prompts. AEDs make it possible for non-medical personnel to administer the same vital services rendered by medical professionals using manual defibrillators without with risk of accidental shock. Anyone trained in CPR can be trained to use an AED and most AEDs are designed to be used by people with no medical background. An AED only treats a heart in ventricular fibrillation, however. It does not replace CPR, which is necessary to keep oxygen flowing to the brain. As such, AEDs can be used as part of CPR, not instead of it. The use of a defibrillator does not guarantee survival and will not save everyone.

According to the American Heart Association, as many as 40,000 lives could be saved each year if defibrillators were more widely available for use. For every minute that goes by for someone in sudden cardiac arrest, the chance of survival decreases by 7 to 10%. After 10 minutes, survival is unlikely. In many situations, the quick use of a defibrillator is the difference between life and death. Because of these statistics, the American Heart Association encourages the establishment of Public Access Defibrillation (PAD) programs for such places as large hotels, high-rise buildings, gated communities and remote sites. The elements of a PAD program include:

1. Training designated rescuers in CPR and AED use;
2. Having a physician oversee the program to ensure quality control;
3. Integrating the local emergency medical service system; and
4. Using and maintaining the AED according to the manufacturer’s specifications.
   

Because of the ease of use of AEDs and the potential benefit they provide, AEDs are showing up in many public places such as health clubs, shopping malls and airports. Many community associations are considering installing AEDs at clubhouses, pools, or other common areas. Before any community association purchases an AED, often at a cost of anywhere from $1,000 to $3,000, certain issues must be considered. First, the Federal Food and Drug Administration has declared AEDs a prescription device, which means that a prescription from a licensed physician is required in order to purchase an AED and put it into use.

More importantly, community associations must carefully consider their potential liability exposure from providing an AED for use within the community. What sort of risk does a community association run if the AED is used improperly and personal injury results?

Congress and most state legislatures, including Colorado, have enacted legislation encouraging the use of AEDs and limiting the liability for those acquiring and using them. Community associations are most concerned with how these laws protect the acquirers of the AEDs.

The federal law’s limitation on liability for acquirers is conditioned upon whether the acquirer satisfies the following criteria:

1. Notification of emergency personnel of the installation of the AED within a reasonable amount of time after the installation;
2. Proper maintenance and testing of the AED; and
3. Provision of proper training to persons reasonably expected to use the AED.

If the above criteria are not met and the failure to meet the criteria results in personal injury to a person receiving treatment, a community association, as the acquirer, is not shielded from liability. On the other hand, if the above are met and a personal injury results, the community association will be deemed to have acted reasonably and will be protected from liability. However, limited liability is not available if the harm was caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a flagrant indifference to the safety of the person who was harmed. Therefore, community associations could still be subject to risk if the AED is used in a reckless or grossly negligent manner.

Colorado law provides similar limited immunity to community associations that are responsible for the site where an AED is located. A community association that is responsible for the site where the AED is located, such as at the clubhouse or the swimming pool, is not liable for any civil damages for acts or omissions made in good faith, unless the acts or omissions were grossly negligent or willful and wanton. As with the federal statute, limited liability under Colorado law is also conditioned upon the community association meeting certain criteria as the acquirer of the AED. These criteria are:

1. Expected users of the AED must receive training in CPR and AED use;
2. The AED must be maintained and tested according to the manufacturer’s specifications;
3. A licensed physician must be involved to ensure compliance with the requirements for training, notification and maintenance;
4. A written plan, which has been reviewed and approved by a licensed physician, must be in place regarding the placement of the AED, training of personnel, pre-planned coordination with the emergency medial services system, medical oversight, AED maintenance, identification of personnel authorized to use the AED, and reporting of the AED’s use;
5. Any person who uses the AED must activate the emergency medical services system as soon as possible and report any clinical use of the AED to the licensed physician overseeing the program; and
6. The applicable emergency communications or vehicle dispatch center must be notified of the existence, location and type of AED.

As with the federal statute, under the Colorado law, a community association may still be subject to liability if the AED is used in a grossly negligent or willful and wanton manner.

Before any community association purchases an AED, the following recommendations should be followed:

1. Consult with the association’s attorney regarding the potential liability that may result from the installation of an AED;
2. Contact the association’s insurance agent to review insurance coverage and ensure there is adequate coverage for any potential claims that may arise as a result of the AED; and
3. Adopt and institute thorough training and other procedures to ensure that the association is and remains in compliance with the Colorado and federal laws providing limited liability.