I am assuming 24 hour has adequate liability coverage. Regardless of how many employees are working at one time, fully trained or not, when does a situation like this turn from a covered claim to an act of negligence or carelessness?
In my experience, the only time I have seen just one employee working at the 24 hour I attend is between the hours of 11pm – 3am. Should this be taken into consideration as well?
No, i would assume it shouldn’t be taken into account as its state law that fitness centers must have defibrillator on hand… not that it needs to be on hand from 8am-10pm.
What ever happened to personal responsibility. It is sad that the man died but how is his heart condition the responsibility of they gym?
Even though the law may require the presence of a defibrillator does that then require all staff to know how to use it? On top of that I have signed gym memberships and they all include use at your own risk language.
Um…in a word, yes. Not necessarily all staff, but presumably, if the law requires the defibrillator, someone should be scheduled at all times who knows how to use it. I’m sure they had all the requisite waivers signed by the client disclaiming liability for such circumstances, but how that holds up against poor risk management remains to be seen. And the family of the deceased most certainly didn’t sign any waivers. Is it a case of contributory negligence? Sounds like it just might be.
In Texas, such waivers are absolutely enforceable. And, if the waiver was drafted properly, the waiver extends to all other parties. The family only has those rights that the signer would have had. The best example is a case from Houston involving a paint ball park. But there was also one involving an injury from a treadmill at a fitness center. Its called assumption of risk.
A waiver will not remove negligence and in Oregon courts that will be a low threshold. The fact that they have a AED on hand is in compliance with the law. However, I would bet this employee has not been trained in the use of the AED and that in itself will create liability for the gym
Looks like there are rules regarding training and presence of a staff number that is trained. Not being an attorney, a little hard to determine exactly how all this applies to fitness centers.
Here’s what I believe to be the pertinent part of the OR law regarding this issue (irrelevant items deleted):
A person may not bring a cause of action against another person for damages for injury, death or loss that result from acts or omissions involving the use, attempted use or nonuse of an automated external defibrillator when the other person:
(a) Used or attempted to use an automated external defibrillator;
(b) Was present when an automated external defibrillator was used or should have been used;
(c) Provided training in the use of an automated external defibrillator;
or
(e) Possesses or controls one or more automated external defibrillators placed in a public setting and reasonably complied with the following requirements:
(A) ..
(B) Ensured that a sufficient number of employees received training in the use of an automated external defibrillator so that at least one trained employee may be reasonably expected to be present at the public setting during regular business hours.
(C) Stored the automated external defibrillator in a location from which the automated external defibrillator can be quickly retrieved during regular business hours.
(D) Clearly indicated the presence and location of each automated external defibrillator.
(E) Established a policy to call 9-1-1 to activate the emergency medical services system as soon as practicable after the potential need for the automated external defibrillator is recognized.
(3) The immunity provided by this section does not apply if:
(a) The person against whom the action is brought acted with gross negligence or with reckless, wanton or intentional misconduct;
(b) or
(c) The person against whom the action is brought possesses or controls one or more automated external defibrillators in a public setting and the person’s failure to reasonably comply with the requirements described in subsection (2)(e) of this section caused the alleged injury, death or loss.
Hard to say for sure which way it will go, but the circumstances described seem to suggest the possibility that the immunity provided by statute does not apply. Not sure if I would want to defend this in a jury trial.
Yes, use the equipment at your own risk. The man may not have had any preexisting conditions that would put him at risk for a heart attack. the fitness center is still responsible to assist their customers.. Namely by calling 911 immediately and following their state laws to have the defibrillator on hand with personnel that can use the equipment.
13 is not a lucky number. Does the Oregon law state that someone on staff at all times needs to know how to use the defibrillator, or just have one on hand? Further, most defibs have detailed instructions on how to use them. So since 13 is an unlucky number, my guess is the family will get policy limits at most.
“The lawsuit says another gym member searched for the employee to call 911”
Why isn’t this other gym member involved in the suit? It’s 2017 everyone has a cell phone, you don’t have to wait for an employee to know how to dial the phone to call. You just call 911 and start doing what they say.
Ummm, ……maybe the deceased shouldn’t have been on the tread mill in the first place ? Hopefully this suit will either be dismissed or plaintiffs will have it thrown back in their faces by the jury. Oregon….you never know.
I think they should have: Established a policy to call 9-1-1 to activate the emergency medical services system as soon as practicable after the potential need for the automated external defibrillator is recognized.
Also, It just makes sense that a reasonable person who would have a defibrillator know how to use it – after all – isn’t that the reason the defibrillator is on premises? Why have an AER but not be able to use it. Are the employees able trained on the exercise equipment? Do they know how to use that? I don’t see a difference -in fact, the AER might be the most important piece of equipment to know how to use.
Use at your own risk – yes understood.
But also use the AER. Isn’t that why you have it?
People don’t plan to have an attack. That’s the why there’s protocols for emergencies – especially in fitness centers where people have undiagnosed conditions or over exert themselves.
I am assuming 24 hour has adequate liability coverage. Regardless of how many employees are working at one time, fully trained or not, when does a situation like this turn from a covered claim to an act of negligence or carelessness?
In my experience, the only time I have seen just one employee working at the 24 hour I attend is between the hours of 11pm – 3am. Should this be taken into consideration as well?
No, i would assume it shouldn’t be taken into account as its state law that fitness centers must have defibrillator on hand… not that it needs to be on hand from 8am-10pm.
What ever happened to personal responsibility. It is sad that the man died but how is his heart condition the responsibility of they gym?
Even though the law may require the presence of a defibrillator does that then require all staff to know how to use it? On top of that I have signed gym memberships and they all include use at your own risk language.
Um…in a word, yes. Not necessarily all staff, but presumably, if the law requires the defibrillator, someone should be scheduled at all times who knows how to use it. I’m sure they had all the requisite waivers signed by the client disclaiming liability for such circumstances, but how that holds up against poor risk management remains to be seen. And the family of the deceased most certainly didn’t sign any waivers. Is it a case of contributory negligence? Sounds like it just might be.
In Texas, such waivers are absolutely enforceable. And, if the waiver was drafted properly, the waiver extends to all other parties. The family only has those rights that the signer would have had. The best example is a case from Houston involving a paint ball park. But there was also one involving an injury from a treadmill at a fitness center. Its called assumption of risk.
A waiver will not remove negligence and in Oregon courts that will be a low threshold. The fact that they have a AED on hand is in compliance with the law. However, I would bet this employee has not been trained in the use of the AED and that in itself will create liability for the gym
Here is a synopsis of Oregon AED laws:
https://www.aedbrands.com/resource-center/choose/aed-state-laws/oregon/
Looks like there are rules regarding training and presence of a staff number that is trained. Not being an attorney, a little hard to determine exactly how all this applies to fitness centers.
Here’s what I believe to be the pertinent part of the OR law regarding this issue (irrelevant items deleted):
A person may not bring a cause of action against another person for damages for injury, death or loss that result from acts or omissions involving the use, attempted use or nonuse of an automated external defibrillator when the other person:
(a) Used or attempted to use an automated external defibrillator;
(b) Was present when an automated external defibrillator was used or should have been used;
(c) Provided training in the use of an automated external defibrillator;
or
(e) Possesses or controls one or more automated external defibrillators placed in a public setting and reasonably complied with the following requirements:
(A) ..
(B) Ensured that a sufficient number of employees received training in the use of an automated external defibrillator so that at least one trained employee may be reasonably expected to be present at the public setting during regular business hours.
(C) Stored the automated external defibrillator in a location from which the automated external defibrillator can be quickly retrieved during regular business hours.
(D) Clearly indicated the presence and location of each automated external defibrillator.
(E) Established a policy to call 9-1-1 to activate the emergency medical services system as soon as practicable after the potential need for the automated external defibrillator is recognized.
(3) The immunity provided by this section does not apply if:
(a) The person against whom the action is brought acted with gross negligence or with reckless, wanton or intentional misconduct;
(b) or
(c) The person against whom the action is brought possesses or controls one or more automated external defibrillators in a public setting and the person’s failure to reasonably comply with the requirements described in subsection (2)(e) of this section caused the alleged injury, death or loss.
Hard to say for sure which way it will go, but the circumstances described seem to suggest the possibility that the immunity provided by statute does not apply. Not sure if I would want to defend this in a jury trial.
Yes, use the equipment at your own risk. The man may not have had any preexisting conditions that would put him at risk for a heart attack. the fitness center is still responsible to assist their customers.. Namely by calling 911 immediately and following their state laws to have the defibrillator on hand with personnel that can use the equipment.
13 is not a lucky number. Does the Oregon law state that someone on staff at all times needs to know how to use the defibrillator, or just have one on hand? Further, most defibs have detailed instructions on how to use them. So since 13 is an unlucky number, my guess is the family will get policy limits at most.
“The lawsuit says another gym member searched for the employee to call 911”
Why isn’t this other gym member involved in the suit? It’s 2017 everyone has a cell phone, you don’t have to wait for an employee to know how to dial the phone to call. You just call 911 and start doing what they say.
Ummm, ……maybe the deceased shouldn’t have been on the tread mill in the first place ? Hopefully this suit will either be dismissed or plaintiffs will have it thrown back in their faces by the jury. Oregon….you never know.
The employee was heard to say, “he doesn’t even lift bro”.
Hard to tell how this will end up but I’ll bet the attorneys will be going round and round on this one.
I think they should have: Established a policy to call 9-1-1 to activate the emergency medical services system as soon as practicable after the potential need for the automated external defibrillator is recognized.
Also, It just makes sense that a reasonable person who would have a defibrillator know how to use it – after all – isn’t that the reason the defibrillator is on premises? Why have an AER but not be able to use it. Are the employees able trained on the exercise equipment? Do they know how to use that? I don’t see a difference -in fact, the AER might be the most important piece of equipment to know how to use.
Use at your own risk – yes understood.
But also use the AER. Isn’t that why you have it?
People don’t plan to have an attack. That’s the why there’s protocols for emergencies – especially in fitness centers where people have undiagnosed conditions or over exert themselves.