Gyms Get Pass on Failure to Defibrillate Members

ALBANY, N.Y. (CN) - Health clubs have no obligation to use the defibrillators that they are required to have on hand for heart attacks, New York's highest court ruled.

The Court of Appeals took up the case of Long Island man Gregory Miglino Sr. to resolve division over the issue at the appellate level.

Miglino had been playing racquetball early one morning in March 2007 at a Bally Total Fitness when he collapsed. A club employee, trained in cardiopulmonary resuscitation (CPR) and the use of a portable automated external defibrillator (AED), rushed to his side while others called 911 and broadcast an internal announcement summoning anyone with medical training to help.

The employee quickly evaluated Miglino and decided not to start CPR or use the AED because he was taught the procedures were "inappropriate in light of a breathing individual with detectable pulse," according to an affidavit in the case.

Two club members, a doctor and a medical student, soon offered assistance and began CPR. An ambulance crew then arrived and used an AED to try to shock Miglino's heart back into rhythm. He could not be revived and was pronounced dead on arrival at nearby Stony Brook Hospital.

His son, Gregory Miglino Jr. filed a wrongful-death lawsuit in early 2008, alleging the club and Bally Total Fitness Corp. failed to abide by state laws on CPR and AEDs.

Since 2005, New York has required health clubs, fitness studios, gyms, and martial arts and self-defense schools with 500 or more members to have an AED on the premises and someone trained to use the device and certified in CPR. An amendment in 2011 clarified application of the provisions to the staffed business hours of clubs.

While the Lake Grove club claimed that it was immune from liability under the state's Good Samaritan Law, the corporate parent claimed no ownership role in the club.

The young Miglino did not oppose dropping Bally Total Fitness Corp. from the action, but he argued the Good Samaritan Law did not apply. Whereas that law requires a showing of gross negligence to hold people liable for offering aid in an emergency, Miglino claims that no club staff actually provided treatment to his father.

A Suffolk County Supreme Court judge refused to dismiss either defendant, but the Appellate Division's Second Judicial Department cleared the corporate parent.

That 2011 ruling said state law mandating AEDs and trained personnel at health clubs "also imposes an affirmative duty of care upon the facility to use the device."

The Brooklyn-based panel reached its decision on the heels of similar case that went to New York's highest court, the Court of Appeals.

In Digiulio v. Gran Inc., the high court "left open the question" of whether the law "creates a duty upon a health club to use the AED which it is required to provide," according to Second Department's opinion.

Digiulio had gone to the Court of Appeals after the First Department cleared a New York Health & Racquet Club franchise of negligence claims after finding that the AED law "is silent as to the clubs' duty, if any, to use the devices."

Contradicting that finding, the Second Department had found it "illogical to conclude that no such duty exists."

They noted that lawmakers passed the statute, formally Section 627-a of general business law, to better protect members who exercise strenuously.

"Although the statute does not contain any provision that specifically imposes an affirmative duty upon the facility to make use of its required AEDs, it also does not contain any provision stating that there is no duty to act," the justices wrote.

The Court of Appeals affirmed on procedural grounds last week, but said "that General Business Law Section 627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained onsite."

The state Legislature "is unlikely to have imposed such a new duty absent an express statement," Judge Susan Read wrote for the majority.

This is especially true since "such a duty would engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty," she added.

In refusing to dismiss the claims against the Long Island club, the four-judge majority found that "Miglino has at least pleaded a viable cause of action at conmon law."

Though Chief Judge Jonathan Lippman agreed on that point, he insisted in a partial dissent that the majority's reading of 627-a "renders it virtually meaningless."

Absent a statement by the Legislature, "the statute should be interpreted in a way that is consistent with its spirit and benevolent aim," Lippman wrote.

"As read by the majority, the Legislature enacted an essentially purposeless statute that requires health clubs to purchase AEDs and train employees to use them, but does not require that the devices be applied in any potentially life-saving situation," he wrote. "I cannot agree with an interpretation that is so plainly contrary to accomplishing the goal of the legislation."

New York lawmakers should revisit the statute "and make clear that health clubs are in fact under a duty to make use of AEDs they are required to have on their premises," he added.

Brian Heermance of Morrison Mahoney in New York City argued for the club. John Decolator of Garden City represented Miglino Jr.

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