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A negligence claim against a tennis club for not maintaining a defibrillator on its premises must fail, a majority of the Pennsylvania Supreme Court has ruled, because the club’s employees are not permitted by law to use such a device. The relevant statutes clearly illustrate the legislature’s desire to allow only those who are trained and licensed to operate an automated external defibrillator, the majority announced. “The legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an [automated external defibrillator], along with AED training requirements, are highly regulated,” the majority opinion author, Chief Justice Stephen A. Zappala, wrote. “Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this court must refrain from imposing additional requirements upon that legislation.” According to the opinion, one of the plaintiffs, Jerry Atcovitz, collapsed at Gulph Mills Tennis Club on Jan. 16, 1996. He suffered a stroke, secondary to a heart attack. Zappala said that within a minute of the heart attack, members of the club administered cardiopulmonary resuscitation and called for an ambulance. Emergency medical technicians arrived about 10 minutes later, Zappala said, and administered a series of defibrillation shocks with an AED and took Atcovitz to the hospital. Atcovitz survived, but, Zappala said, he suffered permanent injuries, including nervous system disorders and anoxic encephalopathy, a brain injury. Atcovitz allegedly cannot think or concentrate, walk or get out of bed unassisted, and he needs assistance with almost every activity, according to the opinion. Atcovitz and his wife, Roslyn, sued Gulph Mills for negligence, alleging that if it had an AED on the premises, Jerry Atcovitz’s injuries would have been significantly less, the opinion stated. In its defense, Gulph Mills argued that even if it did have a defibrillator, its employees would have been prohibited by law from using it. A Philadelphia Common Pleas Court judge granted a motion by Gulph Mills for summary judgment and dismissed the case, basing its decision on its opinion that under the Emergency Medical Services Act, Gulph Mills employees would have been precluded from using the AED. In the appeal, the Pennsylvania Superior Court reversed. It concluded that the trial court was wrong to rely on the EMS Act because it pertains only to trained professionals, not laymen such as the employees of Gulph Mills. The superior court also addressed the AED Good Samaritan Act, which places “Good Samaritan civil immunity” on an untrained individual who uses an AED, in good faith, in an emergency situation, as would a reasonable person under the same circumstances. The act was enacted after Atcovitz’s incident. However, the superior court said the act showed that the legislature was of an opinion that use of an AED should not be restricted to trained professionals. The superior court held the trial court erred by granting Gulph Mills’ motion for summary judgment. In the supreme court majority opinion, Zappala said the threshold issue in the case was one of duty. He cited the court’s 2000 opinion in Althaus v. Cohen, in which it created a five-part test to determine whether a common law duty of care exists. The court in Atcovitz focused on only one part of the test, the overall public interest in the proposed solution, and studied the implications of the EMS and AED Good Samaritan acts. Zappala said the majority disagreed with the superior court that the EMS Act was not relevant to the decision. He said the act is, in fact, relevant to show that use of an AED, and the training requirements of using that device, is highly regulated. The mere fact that the legislature excluded laymen from the act indicated that the legislature intended the act to preclude untrained professionals from using an AED in emergency situations, Zappala said. “We must infer that, under the doctrine of expressio unius est exclusio aterius, the inclusion of a specific matter in a statute implies the exclusion of other matters,” Zappala wrote. “It would be absurd for the governmental system charged with rendering effective emergency medical care to hinder the delivery of that care using AEDs through the system, while ordinary citizens would be duty-bound to acquire, maintain, and use AEDs free from any regulation by the Department of Health.” The majority also did not agree with the superior court’s interpretation of the AED Good Samaritan Act. Zappala explained that the act contains an exception to the general rule of providing civil immunity to trained users of an AED device. “Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual,” Zappala said. “Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to acquire, maintain, and use such a device on its premises.” Therefore, the majority found there was no duty under which Gulph Mills should have acquired and maintained an AED on its premises, and so the Atcovitzes could not prove their negligence claim. In a dissenting opinion joined by Justice Thomas G. Saylor, Justice Russell Nigro asserted that the issue of whether a tennis club owes a duty to maintain an AED on its premises was not the issue before the court. “The only issue that the superior court considered below was whether the Emergency Medical Services Act and the Department of Health regulations promulgated pursuant to that act specifically prohibited appellants from using an AED,” Nigro said. Nigro said he agreed with the superior court’s conclusion on that issue and would have affirmed and remanded to the trial court for a consideration of whether there was any basis on which to conclude that Gulph Mills owed a duty to the Atcovitzes. Justice Ralph Cappy issued a concurring statement that he agreed with the majority so far as it held that the court should balance the Althaus factors.

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