Corporate liability of having Automatic Electronic Defibrillator’s (AED) in the workplace
According to the Ottawa Paramedic Service, the concept of having an automated external defibrillator or AED in the workplace has been promoted by over 50 heart health organizations in Canada, including the Heart and Stroke Foundation. It is rapidly becoming a basic standard of emergency care, equivalent to the value of having a smoke alarm or a fire extinguisher. In fact, facilities that install AEDs are now reducing their liability by providing this potentially life-saving service.
So what is an AED?
An automated external defibrillator or AED is a portable electronic device that automatically diagnoses the potentially life threatening cardiac arrhythmias of ventricular fibrillation and ventricular tachycardia in a patient, and is able to treat them through defibrillation, the application of electrical therapy which stops the arrhythmia, allowing the heart to reestablish an effective rhythm.
With simple audio and visual commands, AEDs are designed to be simple to use for the layman, and the use of AEDs is taught in many first aid, first responder, and basic life support (BLS) level CPR classes.” (Source American Red Cross)
What does the legislation say?
In Canada, medical devices are regulated by Health Canada’s Therapeutic Products Directorate and are subject to the Medical Devices Regulations under the Food and Drugs Act. The goal of the Medical Devices Regulations is to ensure, to the extent possible, that devices offered for sale in Canada are safe, effective, and meet quality standards.
Currently there is no legislation or regulations that require employers to have AEDs. And, according to the Ottawa Paramedic Service, there is very little legal or liability risk for a person that uses an Automatic External Defibrillator in the workplace; and, no one in Canada, so far, has ever been sued for using an AED.
Using an AED is no different from performing any emergency care or first aid as required under Occupational Health and Safety or Workers’ Compensation legislation or regulations. If an AED operator performs as he or she is trained to perform, he or she is protected.
Furthermore, the federal Good Samaritan Act, 2001 (S.O.2001, Ch.2) will also protect workers.
This Act prevents a rescuer who has voluntarily helped a person in distress from being successfully held liable for any wrongdoing:
Despite the rules of common law, a person who voluntarily and without reasonable expectation of compensation or reward provides the services described in that subsection is not liable for damages that result from the person’s negligence in acting or failing to act while providing the services, unless it is established that the damages were caused by the gross negligence of the person.” 2001, c. 2, s. 2 (1)”
Along with the purchase of the AED, the employer must assure that operators are properly trained and that protocols for continued training, operation and equipment maintenance are in place.
Every province and territory in Canada — with the exception of New Brunswick and Nunavut — has Good Samaritan laws.
Although there is no OHS legislation or Regulations, some jurisdictions have provided guidelines or have other laws that protect the use of AEDs to provide emergency care.
- Alberta has issued a safety bulletin on AEDs in the workplace that indicates support for the use of AEDs at worksites provided that employers ensure that: a) AED use is integrated into the first aid program and emergency response plan; and b) AEDs can safely be used in the specific work environment
- British Colombia issued OHS guidelines on implementing an early defibrillation program
- Nova Scotia has issued a Guide to the First Aid Regulations that notes that the regulations don’t mention AEDs. But it does say that if employers want to have an AED, they should follow the manufacturer’s specifications for operating and maintaining the device and train their workers in its proper use
- Ontario doesn’t specifically address the use of AEDs in the workplace. But the Chase McEachern Act (Heart Defibrillator Civil Liability), 2007 (S.O.2007, Ch.10) specifically protects anyone who, in good faith, uses a defibrillator on a person in an emergency from liability, unless he or she is grossly negligent [Sec. 2(1)]. It also exempts from liability “any person who owns or occupies premises where a defibrillator is made available for use and who acts in good faith with respect to the availability or use of the defibrillator” [Sec. 3(1)].In addition, the Act mandates that the AED owner provides proper maintenance of the AED and that it is made available: “Subsection (1) does not exempt the person who owns or occupies the premises where a defibrillator is made available for use from civil liability if, (a) that person acts with gross negligence with respect to making the defibrillator available; (b) that person fails to properly maintain the defibrillator.”
- Quebec doesn’t specifically address the use of AEDs in the workplace. However, if a first responder or ambulance technician isn’t present, any person who has received training that meets the standards set by the American Heart Association guidelines may use an AED; (source: Regulation respecting the professional activities that may be engaged in within the framework of pre-hospital emergency services and care, Sec. 2).
AEDs are also designed to reduce the risk of operator misuse. For example, a shock cannot be administered if the defibrillator does not detect a heart rhythm that needs defibrillating.
Thus, corporate and individual liability is very minimal. To reiterate, the law protects corporations and individuals from liability for damages that may occur from their use of an AED to save someone’s life at the immediate scene of an emergency unless damages are caused by gross negligence.
First Reference Human Resources and Compliance Managing Editor
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