You made my heart stop

Okay, you are employed as an associate in any type of 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 the reception area. When you go to see what’s happening, you find that Mr Eclair, the father of a patient in the office, is lying on the floor with his eyes open; he is breathing heavily, and has a pale face and a faint pulse. You immediately tell the front desk to call 911 and ask whether there is an emergency kit in the office and, if so, to bring it out; you also ask the others in the reception area whether anyone there has medical training. At that point, an assistant brings the office emergency kit and the automated external defibrillator (AED).

As a licensed health care professional, you have been trained in CPR as well as in the use of an AED. One thing that you learned was that you don’t begin CPR on someone like Mr Eclair because, from your understanding of all you have been taught, it is inappropriate for someone who is breathing and has a detectable pulse. It turns out that an adult patient in the treatment area is a retired physician, who is there with his granddaughter, a nursing student. While they attend to Mr Eclair, you go to check on the status of the ambulance. You decide not to get involved with Mr Eclair’s emergency care because, again, in your judgment, the physician and the nursing student were in a better position to continue caring for him until paramedics arrived. When you return to the reception area, you note that the physician and the nursing student are performing CPR on Mr Eclair. At that time, the EMTs arrive and continue to perform CPR and attempt to shock Mr Eclair, but, unfortunately, he never revived. These are essentially the facts in Miglino v Bally Total Fitness of Greater N.Y., Inc. , 20 NY3d 342, 2013. The question is, do you owe a duty of care to someone who is not a patient, and how far does that duty extend?

The deceased’s family sued Bally (in our scenario, it would be the owner of the practice) for wrongful death, claiming that Bally (the owner/orthodontist in our fact pattern) did not employ someone who could administer CPR and use the AED as required by state law (most states I’m aware of require CPR certification for all health care professionals, and this training includes use of an AED). Bally argued that it was immune under the state’s Good Samaritan law because none of its employees actually treated the deceased. The family countered that Bally owed the deceased a duty of care because the associate did evaluate him, and this evaluation was negligent in that the deceased did require CPR and administration of shock with the AED, which the associate should have provided. Bally motioned for the case to be dismissed. The family opposed, claiming that they had a valid claim and should be allowed to have their day in court. The case worked its way through the appellate courts until arriving at the Court of Appeals, New York’s highest court.

In the end, the court decided that although it was of the opinion that the defendant did nothing wrong, the case could not be dismissed because there was at least a colorable argument that the associate covering the office might have some exposure to liability, and thus it becomes a matter for the jury to decide. The motion for dismissal failed. However, some good guidelines can be gleaned from the written opinion.

Like all Good Samaritan laws, the broad goal is to prompt people to act in an emergency situation by shielding them from liability sounding in negligence when their acts cause injury, death, or disability, unless the injury was caused by actions later to be considered as gross negligence, or wanton or willful conduct. The law requiring possession of an AED for certain types of businesses does not require those businesses or their employees to actually use it. The law was designed to ensure the availability of AEDs for use by trained persons at locations where there might be people at higher risk of sudden cardiac arrest. On the other hand, common law holds that when there is no duty imposed by law or a special relationship for person A to come to the aid of person B, and A decides to get involved, then A owes B a duty to provide the help in a reasonable manner. The reason for this is that once A becomes involved with helping B, person C, who might have helped B had A not acted, does not now feel the need to get involved because someone else is already doing it.

In a case that the court cited, a person suffered a heart attack during an aerobics class. The court concluded that the defendant business was entitled to summary judgment because its personnel deferred to the superior medical training and experience of a nurse who was on site; they called 911 immediately and sent someone to the first floor to direct emergency personnel to the decedent. In another case, the deceased suffered a coronary while playing racquetball. The court granted summary judgment to the defendant when it found that the club had not breached any duty owed to the decedent, since the entire staff was trained in CPR, it was administered properly, and 911 was immediately called. This is not television: CPR efforts do not always result in saving the patient’s life. In this instance, a person suffered an apparent heart attack, 911 was immediately called, and the defendant decided to rely on personnel with greater medical training and expertise. However, since the defendant initially went to the aid of the heat attack victim, it created a question of fact and, as such, was not amenable for a motion to dismiss.


I know, this case is unsatisfying. It doesn’t give us a black-or-white answer to our question of what duty, if any, we owe to nonpatients. Let’s try to answer this. We are a business. Our business is providing orthodontic health care. We invite our patients to come to our offices: they are business invitees. We owe business invitees a duty to provide a reasonably safe environment in which to conduct business. By statute, part of creating this safe environment is undergoing CPR training every few years and, for many of us, having an AED on the premises for those with more skill, knowledge, experience, expertise, and education (SKEEE). So far, no problem.

Take a scenario in which our patient needs some type of soft-tissue management (digging subgingivally for a buried separator, needing a laser gingivoplasty, inserting a miniscrew, whatever). We decide to administer local anesthesia and use epinephrine to control the bleeding to whatever degree. The patient experiences a cardiac arrest, maybe from the epinephrine, or maybe just because of his or her poor lifestyle and poorer health. As a matter of law, do we have a duty to administer whatever aid is required according to our training? You bet we do. The duty is based on that special relationship I alluded to earlier: the doctor-patient relationship. We gotta do what we gotta do, period. It’s now time to put into practice all that we learned when making out with Resusci Anne. But suppose it is someone in the waiting room (oops, I forgot—it’s now more politically correct to call it our “reception area,” since “waiting” has such negative connotations) who has the cardiac episode. Same duty? Maybe, maybe not.

One could argue that we have the same duty because we treat many children who often are transported to our place of public accommodation (our offices) by someone old enough to drive; therefore, isn’t it foreseeable that this older person could be a grandparent, and that grandparents might have a greater chance of suffering a cardiac event? We can argue this back and forth, but the point is that there are enough reasonable people out there, certainly at a minimum, a respectable minority, who would say that yes, there is a duty to provide the chauffeur with a safe environment to act as a seat warmer for the next patron until junior is finished with his appointment. The duty owed is to be able to perform CPR if it is required and to have on hand an AED for use by the emergency health care giver if it is required. Others would argue that no such duty exists; we only owe our patients this duty. Both sides would agree that at a minimum, we owe our patients and those accompanying them to our place of business the duty to call 911 and to get out of the way of anyone who has more SKEEE and is willing to help.

Most of the time in this column, I can provide answers; yet sometimes, all I can do is provide questions. Sometimes, the questions become more important than the answers because they force us to evaluate how we do what we do. When we have proactively developed policies and procedures after due deliberation, we can, with clear conscience, say that we have provided our business invitees with a relatively safe environment. In the end, isn’t this one of our duties owed?

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Apr 7, 2017 | Posted by in Orthodontics | Comments Off on You made my heart stop
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