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Tuesday, May 22, 2018
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AED lawsuit threatens youth sports with liability overload

Few can know the pain felt by a parent whose child becomes permanently brain damaged — or even dies — as a result of suffering a cardiac arrhythmia while playing high school sports. Although these circumstances do not occur often, state law now requires public schools in Florida, and other public locations, to have an Automated External Defibrillator (AED) on hand for emergencies.

But does that mean the courts should hold public schools liable when they do not use the AED? State law doesn’t establish such liability, but the courts are being asked to legislate from the bench to create a new duty to use AEDs.

A lawsuit that seeks this result has been accepted by the Florida Supreme Court, and will be heard later this year.

The facts are heartbreaking. Abel Limones collapsed during a soccer game at a Lee County high school. Adults called 911 and performed CPR, but could not revive Abel. There was an AED on campus, but it wasn’t used. When emergency medical personnel arrived, they restarted Abel’s heart with a semi-automatic defibrillator and intravenous medication. He survived, but is severely brain-damaged, in a persistent vegetative state.

The family’s lawyers argue that the school district — at bottom, the taxpayers — should be held financially responsible.

It’s possible to feel for the family’s anguish without accepting the lawsuit’s arguments. Indeed, the trial court and state appeals court both sided with the school district. They acknowledged that, if a student is injured or becomes ill on school grounds, the school has a legal duty to take reasonable steps to help. But they also held that it is not for the judiciary to prescribe the use of specific devices such as an AED.

If the Florida Supreme Court were to rule otherwise, by inventing a new legal duty for public schools to use an AED in life-threatening situations, the impact won’t be confined to this case or to Lee County, or even to public schools. Potentially, every sports facility or program that is made available for youth athletics would be affected — whether operated by school districts, local or state government, parks departments, universities, even private property owners. They would all have to be prepared to use an AED if an athlete were to collapse — or face legal and financial liability.

Consider the implications for community-based organizations that offer sports activities for kids. Will volunteer coaches, referees, and parent organizers be required to learn when and how to use an AED — and face being sued for millions of dollars if something goes wrong?

If the state Supreme Court finds the Lee County School District at fault because an AED wasn’t used in this case, the operators of public and private sports facilities will have to worry about what comes next. What other medical devices will they have to acquire, and train to use, in order to avoid liability for some hypothetical future medical emergency on their property? As schools, cities, counties, businesses and other property owners struggle to discern what additional devices the courts might require, the price of liability insurance would rise — translating into higher costs for the programs they operate and the services they provide.

The Florida Supreme Court should not allow sympathy over a tragic event to distort the manner in which it interprets the law. It should not arbitrarily create a new duty to use an AED where none existed before. Such a decision might be well-intentioned, but it could have the unintended consequence of diminishing sports opportunities for young people in many ways and in many venues. Not just public schools, but all owners and operators of youth sports fields and facilities, would confront new expenses and uncertainties; and community youth leagues would see their volunteer base shrink — increasing the risks and costs for those who remain behind.

Mark Miller is managing attorney with the Florida office of Pacific Legal Foundation in Palm Beach Gardens. Deborah J. La Fetra is a principal attorney with PLF, which is preparing an amicus brief to the Florida Supreme Court supporting the Lee School District in the AED lawsuit.

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