Retailers do not have to keep a defibrillator on-site, court says

Retailers do not have to keep a defibrillator on-site, court says

Retail stores in California have no duty to keep defibrillators on hand in case a customer suffers heart failure, a federal appeals court said Tuesday, accepting the legal analysis of the state Supreme Court.

But one judge on the Ninth U.S. Circuit Court of Appeals said big-box stores like Target have at least a “moral obligation” to keep a defibrillator on site to treat stricken customers — and if they don’t act voluntarily, the Legislature should step in.

The devices are “inexpensive, nearly foolproof,” and “should be as common as first-aid kits,” said Judge Harry Pregerson, part of a three-member appeals court panel.

The court refused to reinstate a lawsuit by relatives of 49-year-old Mary Ann Verdugo, who suffered cardiac arrest while shopping in a Target store in the Los Angeles suburb of Pico Rivera in August 2008. She died before Fire Department paramedics, summoned by store employees, arrived at the scene.

Her family said a jolt from a defibrillator might have saved her life. According to an American Heart Association report last year, 360,000 Americans a year suffer cardiac arrest outside a hospital and fewer than 10 percent survive. A government report has estimated that a defibrillator would increase the survival rate to 30 percent. Pregerson, quoting a California legislative report, said survival rates are as high as 50 to 70 percent if the device is used within 3 to 5 minutes.

The state’s high court, asked by the federal court to interpret California law, declared unanimously in June that the law does not require retailers to keep defibrillators available for medical emergencies.

Businesses must take “reasonable care” of their customers and, in some circumstances, provide medical help for customers who suffer illnesses or injuries on the premises, Chief Justice Tani Cantil-Sakauye wrote. But she said a retail store that used a defibrillator to treat a customer would have to comply with a series of conditions to protect itself from potential negligence suits. The conditions include regularly testing the devices and training at least one employee, who would have to be available during business hours.

Imposing such a burden is a decision for the Legislature, not the courts or individual juries, said Cantil-Sakauye, whose court is the highest authority on California law.

While accepting the decision, Pregerson said it was troubling. Defibrillators, he said, are “crucial to the survival of sudden cardiac-arrest victims,” were formerly sold by Target for $1,200, and, according to one study, can be used effectively by untrained sixth-graders. He said on-site defibrillators are particularly useful in big-box stores, because of the time it would take for an outside medical crew to navigate the premises, and noted that Oregon requires large retailers to keep the devices available.

If retailers do not act voluntarily, “I hope that our California Legislature takes a hard look at this issue,” Pregerson said.

Target Corp. did not respond to Pregerson’s request to voluntarily have a defibrillator on hand. Instead, the company issued a statement saying that “the safety and security of our guests and team members is our top priority” and that it was pleased with the court’s decision.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: Twitter: @egelko