One of the question we are increasingly being asked by our condominium clients is whether they should consider installing automated external heart defibrillators and, if so, what liability may be associated with the installation and use of such defibrillators.
It is well-known that the steps taken in the minutes following a cardiac arrest may make a difference between life and death. Defibrillators, if well maintained and properly used, can make a life-saving difference. The good news is that, in most cases, both the corporation and the user of a defibrillator will be protected against liability.
Study on surviving a cardiac arrest in high-rises
Earlier this year, the Canadian Medical Associate Journal published a study on the survival rate of patients presenting a cardiac arrest in high-rise buildings. The study was conducted in the City of Toronto and the Regional Municipality of Peel, which were selected because of their high population density. Sadly, the study concluded that the higher a patient was in a high-rise, the lower was the expected survival rate. The study concluded that this was due to the fact that high-rise buildings posed unique challenges for 911-initiated first responders, such as:
- Building access issues;
- Elevator delays; and,
- Extended distance between the emergency vehicle and the patient.
All of this contributes to longer times before the initiation of resuscitation manoeuvres.
The authors concluded that reducing barriers to 911-initiated first responders may help improve the response time. Some of the recommendations made by the author included granting paramedics with access to a universal elevator key (as fire departments). Another one was to implement a policy which resulted in alerting building staff before the arrival of the first responders to allow them to facilitate/accelerate the first-responders’ intervention. Finally, the author of the study recommended placing automated external defibrillators on specific floors, in the building lobbies or inside elevators to grant bystanders access to them.
Legal ramifications of installing a defibrillator in a condo
Under the Regulated Health Professions Act, the use of a defibrillator is a controlled act, which can only be performed by a health professional authorized to do so, unless is it performed in the context of rendering first aid or temporary assistance in the context of an emergency. Such an emergency situation is usually defined as a situation where an individual believes that another is experiencing a life-threatening event that requires the provision of immediate care.
Still, the question we often get is whether the decision to use (or not to use) a defibrillator attracts personal liability.
In Ontario, since 2007, the Chase McEachern Act (or the Heart Defibrillator Civil Liability Act) provides that someone, who in good faith, voluntarily and without reasonable expectation of compensation or reward uses a defibrillator on someone experiencing an emergency is not liable for damages that may result from this person’s negligence in acting or failing to act, unless it is established that the damages were caused as a result of gross negligence.
That answers the question of whether a bystander is protected following the decision to use or not use the defibrillator in an emergency situation. But what about the corporation’s decision to install a defibrillator?
The same legislation provides that, despite the Occupiers’ Liability Act, any person who owns or occupies premises where a defibrillator is made available for use (in this case, the condominium corporation) and who acts in good faith with respect to the availability or use of the defibrillator is exempt from civil liability for any harm or damage that may occur from the use of the defibrillator unless:
- the corporation acts with gross negligence with respect to making the defibrillator available; or,
- the corporation fails to properly maintain the defibrillator.
Prior to the adoption of the Chase McEachern Act (and in addition to it) the Good Samaritan Act applied similar protections to anyone who voluntarily and without reasonable expectation of compensation or reward provides emergency first aid assistance at the scene to a person who is ill, injured or unconscious as a result of an emergency.
There is likely no legal obligation on a condominium corporation’s part to install a defibrillator. Still, such a decision is an important one worthy of serious consideration. In the event a condominium corporation decides to install a defibrillator, the corporation should ensure it properly maintains it. The corporation and anyone using a defibrillator in good faith, in the context of an emergency, can expect to be protected from personal liability unless damages are caused as a result of gross negligence.