By: Richard A. Lazar
Copyright © Readiness Systems, LLC – All rights reserved
Legislation enacted in Minnesota (2014 legislative session) requires automated external defibrillator (AED) owners to register their devices with an AED registry. While I understand the desired objectives of this type of legislation, the unfortunate reality is that the Minnesota law will not result in greater AED deployment, more effective AED programs or more lives saved. Rather, the law will discourage organizations from buying AEDs and will dramatically increase liability risks for AED owners and users. Read on for a detailed explanation about why this new law is bad public policy.
Click here to view the text of the law which became effective August 1, 2014.
WHY THE REGISTRY MANDATE IS BAD PUBLIC POLICY
Each of these reasons is discussed in detail below.
It is not clear what problem the law is trying to solve
The law provides that “[a] person who purchases or obtains a public access AED shall register that device with an AED registry within 30 working days of receiving the AED.” But the purpose of this registration mandate is nowhere specified. As a general matter, reasons for registration could include: 1) making AED location data available to 911 dispatch agencies for real-time use during sudden cardiac arrest emergencies, or 2) promoting AED maintenance. The law hints at both but does not fully or understandably address either.
With regard to 911 integration, the law fails to specify whether or how AED registration information is to be used by any agency, and does not require or authorize AED registration information to be used by any agency for any purpose. With regard to AED maintenance, the law appears to dictate one specific method of tracking AED status among many available to AED owners. If the legislative objective of the law is to ensure the proper maintenance of AEDs, then an amendment to Minnesota Statutes section 604A.01 will better accomplish this goal. For example, a straightforward requirement that AED owners take reasonable steps to ensure AEDs are properly inspected and maintained is a less onerous and more effective approach than the registry mandate described in the law. Because industry standards already require proper AED inspection and maintenance, even this legislative change is not really necessary.
The law will increase liability risks for AED owners
The law imposes an AED registration mandate on AED owners but specifies no administrative sanctions for non-compliance. Thus, it is left to lawsuits to impose consequences for failing to register. Notwithstanding Subd. 11 of the law, lawyers suing AED owners will use any registration non-compliance as ammunition in negligence lawsuits whether or not such non-registration impacts the outcome of an underlying emergency response. (Note: Minnesota’s existing Good Samaritan immunity laws offer no liability protection to AED owners.)
Further, the law is very poorly crafted meaning the courts will be required to interpret what the statute means in the context of contentious negligence litigation. For example, as noted below, the definition of “AED registry” is impossible to comply with. The definition of “Maintenance program or package” can be interpreted to mean an AED registry (ill defined) or a manual program of replacing expiring AED accessories. The law mandates that certain information be provided to AED registries yet no purpose for or use of the information is specified. Critically, the law fails to require that accessory expiration dates be included in reported registry information, though this is the most essential data attribute needed if AED maintenance is indeed the objective of the law. These are but a few of many internal and definitional inconsistencies found in the law. Unfortunately, AED owners will suffer the consequences of the law’s drafting deficiencies in the form of increased liability risks with no corresponding public health or safety benefits.
Named registries do not meet the “AED registry” definition contained in the law
The law defines “AED registry” to mean “a registry of AEDs that requires a maintenance program or package.” Neither of the specifically named third-party “registries” found in the law meet this definition. Indeed, there is no situation in which an existing AED registry “requires a maintenance program or package.” While a legislature can impose specific maintenance requirements on AED owners (as Subd. 5 of the law purports to do), registries themselves do not impose such operational requirements (rather, they support them) and thus no registry is capable of meeting the definition found in law. Indeed, an Excel spreadsheet coupled with a corporate AED maintenance policy arguably meets the registry definition contained in the law.
Criteria for specific AED registry naming are not specified in the law
Atrus (which operates the Minnesota AED Registry and the National AED Registry) and the EMS Safety Foundation (which operates iRescU) are both effectively named in the law. When the law was passed, Atrus was a very small for-profit corporation based in Florida. The EMS Safety Foundation is a very small not-for-profit “Think-Tank” based in New York. iRescU is described by the EMS Safety Foundation as a proof of concept application. Neither organization offers comprehensive AED program services to AED owners. Legislative criteria justifying or explaining the naming of these organizations in the law is not specified and thus there is no way to judge whether these organizations, or others, meet intended legislative purposes, particularly as here where legislative objectives are unclear. Further, specifically naming third-party organizations in legislation creates significant risk since these organizations may or may not continue to operate in the future.
The better approach is to clearly define legislative objectives associated with the registry mandate, link these objectives to a precise AED registry definition, and then allow any qualifying registry system (known in the industry as tracking systems of which there are many) to provide these services to AED owners. Unfortunately, the law does not take this approach.
The law fails to address registry system limitations
As noted above, the purpose of the registry mandate contained in the law is unclear. As a general matter, the concept of registry systems aspirationally revolves around making AED registry data available to 911 dispatch agencies and populating mobile apps so that bystanders might be guided to nearby AEDs. While this sounds good in theory, in reality there are many reasons why it is not yet feasible for AED registries to meaningfully increase AED utilization or survival rates. Reasons include real-world data and AED program operational limitations, risk management and legal liability concerns of AED owners, counterproductive and poorly crafted AED immunity laws, and technology limitations, among others. The law does not appear to be targeted toward 911/bystander cardiac arrest response and, in any event, fails to address any of these limitations.
While I understand the desired objectives of this type of legislation, the unfortunate reality is that the law will not result in greater AED deployment, more effective AED programs or more lives saved. Rather, the law will discourage organizations from buying AEDs and will dramatically increase liability risks for AED owners and users. For these reasons, we downgraded Minnesota’s AED Law Report Card grade from “D” to “F”.