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LITIGATION AND LEGISLATION
You made my heart stop
Laurance JerroldJacksonville, Fla
Okay, you are employed as an associate in any typeof group practice you want to envision. One day,you are covering the office because the owner/
orthodontist is away, and you hear a commotion in thereception area. When you go to see what's happening,you find that Mr Eclair, the father of a patient in the of-fice, is lying on the floor with his eyes open; he is breath-ing heavily, and has a pale face and a faint pulse. Youimmediately tell the front desk to call 911 and askwhether there is an emergency kit in the office and, ifso, to bring it out; you also ask the others in the recep-tion area whether anyone there has medical training. Atthat point, an assistant brings the office emergency kitand the automated external defibrillator (AED).
As a licensed health care professional, you have beentrained in CPR as well as in the use of an AED. One thingthat you learned was that you don't begin CPR on some-one like Mr Eclair because, from your understanding ofall you have been taught, it is inappropriate for someonewho is breathing and has a detectable pulse. It turns outthat an adult patient in the treatment area is a retiredphysician, who is there with his granddaughter, anursing student. While they attend to Mr Eclair, yougo to check on the status of the ambulance. You decidenot to get involved with Mr Eclair's emergency carebecause, again, in your judgment, the physician andthe nursing student were in a better position to continuecaring for him until paramedics arrived. When you returnto the reception area, you note that the physician andthe nursing student are performing CPR on Mr Eclair.At that time, the EMTs arrive and continue to performCPR and attempt to shock Mr Eclair, but, unfortunately,he never revived. These are essentially the facts in Mi-glino v Bally Total Fitness of Greater N.Y., Inc., 20NY3d 342, 2013. The question is, do you owe a dutyof care to someone who is not a patient, and how fardoes that duty extend?
The deceased's family sued Bally (in our scenario, itwould be the owner of the practice) for wrongful death,
President, Orthodontic Consulting Group, LLC, Jacksonville, Fla.Am J Orthod Dentofacial Orthop 2013;144:479-800889-5406/$36.00Copyright � 2013 by the American Association of Orthodontists.http://dx.doi.org/10.1016/j.ajodo.2013.06.012
claiming that Bally (the owner/orthodontist in our factpattern) did not employ someone who could administerCPR and use the AED as required by state law (moststates I'm aware of require CPR certification for all healthcare professionals, and this training includes use of anAED). Bally argued that it was immune under the state'sGood Samaritan law because none of its employeesactually treated the deceased. The family counteredthat Bally owed the deceased a duty of care becausethe associate did evaluate him, and this evaluation wasnegligent in that the deceased did require CPR andadministration of shock with the AED, which the asso-ciate should have provided. Bally motioned for thecase to be dismissed. The family opposed, claimingthat they had a valid claim and should be allowed tohave their day in court. The case worked its way throughthe appellate courts until arriving at the Court of Ap-peals, New York's highest court.
In the end, the court decided that although it was ofthe opinion that the defendant did nothing wrong, thecase could not be dismissed because there was at leasta colorable argument that the associate covering the of-fice might have some exposure to liability, and thus itbecomes a matter for the jury to decide. The motionfor dismissal failed. However, some good guidelinescan be gleaned from the written opinion.
Like all Good Samaritan laws, the broad goal is toprompt people to act in an emergency situation byshielding them from liability sounding in negligencewhen their acts cause injury, death, or disability, unlessthe injury was caused by actions later to be consideredas gross negligence, or wanton or willful conduct. Thelaw requiring possession of an AED for certain types ofbusinesses does not require those businesses or their em-ployees to actually use it. The law was designed to ensurethe availability of AEDs for use by trained persons at lo-cations where there might be people at higher risk ofsudden cardiac arrest. On the other hand, common lawholds that when there is no duty imposed by law or aspecial relationship for person A to come to the aid ofperson B, and A decides to get involved, then A owesB a duty to provide the help in a reasonable manner.The reason for this is that once A becomes involvedwith helping B, person C, who might have helped B
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had A not acted, does not now feel the need to getinvolved because someone else is already doing it.
In a case that the court cited, a person suffered aheart attack during an aerobics class. The courtconcluded that the defendant business was entitled tosummary judgment because its personnel deferred tothe superior medical training and experience of a nursewho was on site; they called 911 immediately and sentsomeone to the first floor to direct emergency personnelto the decedent. In another case, the deceased suffered acoronary while playing racquetball. The court grantedsummary judgment to the defendant when it foundthat the club had not breached any duty owed to thedecedent, since the entire staff was trained in CPR, itwas administered properly, and 911 was immediatelycalled. This is not television: CPR efforts do not alwaysresult in saving the patient's life. In this instance, a per-son suffered an apparent heart attack, 911 was immedi-ately called, and the defendant decided to rely onpersonnel with greater medical training and expertise.However, since the defendant initially went to the aidof the heat attack victim, it created a question of factand, as such, was not amenable for a motion to dismiss.
COMMENTARY
I know, this case is unsatisfying. It doesn't give us ablack-or-white answer to our question of what duty, ifany, we owe to nonpatients. Let's try to answer this.We are a business. Our business is providing orthodontichealth care. We invite our patients to come to our of-fices: they are business invitees. We owe business invi-tees a duty to provide a reasonably safe environmentin which to conduct business. By statute, part of creatingthis safe environment is undergoing CPR training everyfew years and, for many of us, having an AED on the pre-mises for those with more skill, knowledge, experience,expertise, and education (SKEEE). So far, no problem.
Take a scenario in which our patient needs some typeof soft-tissue management (digging subgingivally for aburied separator, needing a laser gingivoplasty, insertinga miniscrew, whatever). We decide to administer localanesthesia and use epinephrine to control the bleedingto whatever degree. The patient experiences a cardiac
September 2013 � Vol 144 � Issue 3 American
arrest, maybe from the epinephrine, or maybe justbecause of his or her poor lifestyle and poorer health.As a matter of law, do we have a duty to administerwhatever aid is required according to our training?You bet we do. The duty is based on that special relation-ship I alluded to earlier: the doctor-patient relationship.We gotta do what we gotta do, period. It's now time toput into practice all that we learned when making outwith Resusci Anne. But suppose it is someone in thewaiting room (oops, I forgot—it's now more politicallycorrect to call it our “reception area,” since “waiting”has such negative connotations) who has the cardiacepisode. Same duty? Maybe, maybe not.
One could argue that we have the same duty becausewe treat many children who often are transported to ourplace of public accommodation (our offices) by someoneold enough to drive; therefore, isn't it foreseeable thatthis older person could be a grandparent, and thatgrandparents might have a greater chance of sufferinga cardiac event? We can argue this back and forth, butthe point is that there are enough reasonable peopleout there, certainly at a minimum, a respectable minor-ity, who would say that yes, there is a duty to provide thechauffeur with a safe environment to act as a seatwarmer for the next patron until junior is finished withhis appointment. The duty owed is to be able to performCPR if it is required and to have on hand an AED for useby the emergency health care giver if it is required.Others would argue that no such duty exists; we onlyowe our patients this duty. Both sides would agreethat at a minimum, we owe our patients and thoseaccompanying them to our place of business the dutyto call 911 and to get out of the way of anyone whohas more SKEEE and is willing to help.
Most of the time in this column, I can provide an-swers; yet sometimes, all I can do is provide questions.Sometimes, the questions become more importantthan the answers because they force us to evaluatehow we do what we do. When we have proactively devel-oped policies and procedures after due deliberation, wecan, with clear conscience, say that we have provided ourbusiness invitees with a relatively safe environment. Inthe end, isn't this one of our duties owed?
Journal of Orthodontics and Dentofacial Orthopedics