Recreation Law Center: Is there a Duty to Respond to Medical Emergencies--or Not?

Lissa Brown, Individually and as Administrator, etc. v. Atlas-Kona Kai, 2009 Cal. App. Unpub. Lexis 2108 (Court of Appeal of California, Fourth Appellate District, Division One, March, 2009)

Michael Ponczocha collapsed in the hallway of a California health club operated by Atlas-Kona Kai (Kona Kai) and died of cardiac arrest one hour and twenty minutes later. Lissa Brown, his widow, sued the club for wrongful death, alleging negligence, premises liability and failure to warn. Brown pled, among other things, that her husband died because the club’s premises were unsafe (lacking safety equipment, including an automatic external defibrillator (AED) and trained personnel), and that the club failed to timely contact emergency services. The parties agreed that the club called 911 ‘about’ eleven minutes after the collapse—(Brown says “at least” eleven and the club asserts “at the most” eleven.) The paramedics arrived twenty two minutes after the collapse.

Brown asserted that although CPR was begun within a reasonable time, one staff member assisting did not know how to perform CPR. An expert testifying on behalf of Brown asserted that the club should have had an AED on hand. At the time of the death, California health clubs were not required to have AEDs or have staff trained in AED use available.

The lower court awarded summary judgment to Kona Kai before trial, finding that a business proprietor’s duty (of care) is limited to “coming to the aid of the injured invitee by promptly summoning emergency services.” The court found further that the summons was timely.

On appeal, Ms. Brown argued that the lower court was wrong in so narrowly defining the duty of care owed her husband, and that a jury should have been allowed to decide if the summons occurred within a reasonable time.

The Appeals Court began its opinion by observing that “no one is required to save another from a danger which is not of his making” (citing California legal authorities for the proposition) but noted that an exception to this rule lies in the “special relationship” which exists between a property owner or manager and his visitors. That owner or manager, the Court declared, has a duty to prevent foreseeable harm or to come to the visitor’s aid if there is ongoing or imminent harm threatened.

The Court noted another important rule, however, which is recognized in California and in a number of other states: so long as the operator of a sports facility does not enlarge the risks inherent in the sports activity, the injured party may not recover for his loss. This is the doctrine of primary assumption of risk, and it extends to sporting activities generally, in those states recognizing it, whether or not those activities are conducted in a “facility.”  

In support of its assertion of the primary assumption of risk doctrine in this context, the Court cited an earlier case decided by it, Rotolo v. San Jose Sports and Entertainment, LLC (2007) 151 Cal. App. 4th 307. Rotolo involved a heart attack in a gym. The Court ruled that the risk of a heart attack, and any other risk or danger associated with physical activity, had been assumed by the patron.  

Brown, however, focused not on the cardiac arrest of her husband, but rather, on the response of the club to it. Addressing that argument, the Court pointed out that the actions required by Brown (safety equipment and training) would have had to be in place before the collapse or they would not have been effective. Claims regarding these factors, the Court ruled, are barred by the doctrine of primary assumption of risk associated with the heart attack itself. If a person assumes the risk of an event inherent in the activity, the facility has no duty to prepare for that event. The missing equipment and training did not increase the risk of the heart attack suffered by Proczocha. (see also Carter v. Baldwin, 2009 Cal. App. Unpub. Lexis 529 for a similar holding).

The Appellate Court affirmed the ruling of the lower court regarding both the legal duty of care—to summon help promptly, only—and the promptness of the summons.

Discussion

Courts in other jurisdictions have taken a similar position regarding this limited duty of care when faced with a medical emergency: A Florida Court in 2008 found a duty to use “reasonable care,” based on a special relationship, when a patron of a fitness center became ill or injured while exercising on the premises. The Court found the fitness center’s duty was simply to summon medical help “within a reasonable time” and found no authority for that care extending to having CPR trained employees on hand. (LA Fitness v. Mayer, 2008 Fla App Lexis 5893).

A New Jersey court in a 1994 case (Lundy v. Carlino, 34 F3d 1173) involving a cardiac arrest in a casino, refused to extend the duty of care to “providing medical care or medical rescue services.” In that case, the casino actually had intubation equipment on the premises but refused to use it or make it available to medical doctors who were at the scene.

An Illinois court in 2004 found that a health club had no duty to have an AED on the premises, and Courts in Pennsylvania and Connecticut ruled similarly in cases involving, respectively, a tennis club and a racquetball club. (Salte v. YMCA, 814 SE2d 610).

In several cases involving incidents in restaurants, courts have found no duty to hire employees who are "trained to diagnose and provide medical services” (including, in one instance, the application of the Heimlich maneuver.)

Ruling differently, the court in Gateway Hotel Holdings, Inc., et al. v. Lexington Insurance Co., 2008 Mo. App. 1273 (Court of Appeals of Missouri, Eastern District, Division Two), ruled that boxing was an “inherently dangerous sport” and that as a result, the Hotel and promoter should reasonably have had an ambulance and medical assistance available for the event.

So, where does this leave us? We have some direction for those organizations—climbing gyms, and challenge courses for example—that operate from “premises” to which patrons are invited, and can realistically “summon” help. But what of those organizations that operate in environments such as remote field locations which are not so clearly under the control and management of the organization, where the inherent risks may be significantly greater, and far from urban or other medical response agencies?

With respect to this latter category of programs: a special relationship (and usually a contractual one) exists with the students and clients brought into the environment by the organization; and that relationship generally creates a legal duty of care, including responding in some manner to a medical emergency. The premises (gyms, restaurants, casino, health and sports clubs) cases do not appear logically to be restricted to “premises liability‘ situations; and so, the law generated by those cases might be applicable to remote operations. But does that law fit situations of expanded inherent risks, and remoteness from institutional care? Does the duty owed by an organization in remote places extend beyond merely stabilizing the patient and calling for care? We think so. Does it extend to the requirements of the Gateway Hotel case—having a medical team available? We do not think so.

The legal duty to provide emergency medical care in remote locations will be affected by at least the following:

1)   The level of medical care, if any, which the organization has caused or allowed the clients to believe will be available. In short, what does the client expect and pay for?

 2)   The training and medical devices and drugs (including any prescription drugs) carried by the organization, with the expectation of applying them in an emergency. 

 3)   The reasonably foreseeable medical risks, and the ease with which they can be managed (no organization would be expected to travel with a team of doctors and nurses, equipped with all the devices of an urban medical clinic).

And other considerations:

4)  Are the risks so great, and the means of managing those risks so extreme and impractical that the organization should withdraw from environments and activities that present those risks? But, are there some risks which simply cannot be avoided in any outdoor environment (a bee sting, for example)?

5)  Is an organization which has a legal duty of care to meet reasonably anticipated  emergencies (infection, severe pain, food and other allergies, for example) expected to be able to meet those emergencies even if it has to risk breaking the law to do so (by, for example, practicing medicine without a license, or using drugs not prescribed to the patient?)

6)  Does the inherency of the risks, as those increase in an outdoor environment, add to an argument that no duty, or a reduced duty, is owed?

7)  Has the organization clearly informed the client that no help beyond a described range of care will be available, emphasized the medical risks to the client and obtained the client’s assumption of those risks?

8)  Is the relationship of the client to a tripping organization more “special” than a relationship to a restaurant, casino, health club or gym? Consider the relative intimacy of that relationships, and the disparity of information, skills, dependence and control.

We have more questions than answers at this point, obviously, and must await clarification of these issues as the law, and lawsuits, catch up with the matter of medical emergencies in remote places. Consider the factors described above, however. These and others will affect the legal duty of care owed. And be mindful that we are considering here only the legal duty owed. There may be compelling ethical and other issues are at play in these matters which must be reconciled by the organization in relation with the law in its present state. Lawsuits can be brought both in situations where no action was taken and in situations where actions were taken.