Court: NY gyms don't have to use defibrillators

ALBANY, N.Y. (AP) - Even though state law requires New York health clubs to have defibrillators and staff trained in their operation, they aren't required to actually use them on a stricken patron, the state's highest court ruled Thursday.

The Court of Appeals ruling comes in a negligence lawsuit over the 2007 death of Gregory Miglino Sr., who collapsed in cardiac arrest at a Long Island health club owned by Bally Total Fitness of Greater New York.

Gym staff called 911, broadcast an in-house request for anyone with medical training and brought the club's Automatic External Defibrillator to Miglino's side, where a trainer detected breathing and a pulse and didn't use the AED, according to court affidavits. A doctor and medical student began cardio-pulmonary resuscitation, then paramedics arrived and shocked Miglino, but he died.

The court ruled the lawsuit can proceed but the gym's duty is limited. In the majority opinion, Judge Susan Read wrote that the AED law "does not create a duty running from a health club to its members to use an AED." Judges Victoria Graffeo, Robert Smith and Eugene Pigott Jr. agreed.

"A law that mandates the presence of AEDs and trained individuals at health clubs is easy to obey and enforce," Read wrote. Any "implied duty" would be neither, according to Read.

"Such a duty would engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty," Read wrote.

In his dissent, Chief Judge Jonathan Lippman wrote that as a public access provider of a defibrillator, health clubs are subject to liability only under the state's "Good Samaritan" law. That shields the clubs and staff from liability for providing first aid except in cases of gross negligence.

However, Lippman said the law should be interpreted "consistent with its spirit and benevolent aim," requiring the AEDs are used in any potentially life-saving situation. He suggested the Legislature revisit the law to clarify that clubs have a duty to use them.

Scott Charnas, attorney for Miglino's family, said they agree with Lippman that it doesn't make sense to require the equipment and training and not use it. They intend to proceed with the case, challenging the club's affidavits and bringing out all the facts. "We believe we have a good chance to establish liability under the common law," he said.

"You are much more likely to have a sudden cardiac arrest at a health club than any other single place because of the strenuous exercise people engage in," Charnas said. AEDs at gyms give people a false sense of security, he said, because nowhere in the U.S. are they mandated to use them.

Brian Heermance, representing Bally's, said the majority's interpretation is consistent with use of the words "volunteer" and "voluntarily" in the statute on defibrillators. The club's staff took immediate steps trying to help Miglino, and he's certain Bally's met its common law obligations and will have the case resolved in its favor, he said.