Undertaker doctrine tested in St. Louis

St. Louis Daily Record & St. Louis Countian, Oct 8, 2008 by Angela Riley

No law required St. Louis to install automatic external defibrillators throughout Lambert-St. Louis International Airport. But once it did, does the law make the city liable if the AEDs aren't used or aren't used correctly?

The so-called undertaker doctrine is at the center of a lawsuit filed recently over the death of a man in the East Terminal at Lambert.

Ted Satos was less than 20 yards away from an AED when he collapsed from a sudden cardiac arrest on May 27, 2005.

He was found by a maintenance worker, an employee of the city, who notified Southwest Airlines employees to call 911. A nearby traveler, a nurse, assisted the employee in CPR until paramedics were able to arrive about 10 minutes later, said Satos' daughter's attorney, Matthew Casey, of Casey & Devoti.

The employees failed to use any of the AEDs in the terminal to treat Satos.

Satos' daughter, Stavroula Tellios, sued the city, which owns and operates the airport, and Southwest for failing to alert staff to the AEDs and train employees on how to use them. The lawsuit was originally filed in the city but was transferred to St. Louis County Circuit Court under tort reform, which requires for a suit to be filed where the incident occurred.

"We're basing this case on the undertaker doctrine that is seen in other states," Casey said. "Essentially, if a business or a city undertakes a gratuitous activity, they have a duty to do it right. The city may not have a duty to get [AEDs], but once they did, they had a duty to tell employees, train them and put proper signage up. The [AED] could've saved Ted's life. We've seen statistics that if an AED is used within five minutes of a heart attack, 75 to 85 percent of those people survive."

The city was found to be the entity responsible for placing the AEDs in Lambert, not Southwest.

The city's attorney thinks the basis of the lawsuit is a stretch.

"There's no indication that [the defibrillator] would have made any difference," said the city's attorney, Jonathan Garside, of Fox Galvin. "They're being creative. Normally, if people come onto the city's property, the city has a duty to warn of or correct dangerous conditions, but it doesn't have to provide any emergency services. [The city] was going above and beyond when it installed the AEDs."

He also said broken-heart signs clearly marked the AEDs.

Representatives from Southwest Airlines declined to comment on pending litigation.

"The accusation that Southwest failed to properly train their employees is still in discovery," Casey said. "We're in the beginning of the investigation to determine if they did anything wrong."

The case is one of the many arising around the country over whether a business has a duty to install an AED or provide defibrillation to someone suffering a heart attack, but the result is mixed. Missouri courts have not addressed the issue.

"We continue to see mixed results," said attorney Richard Lazar, an expert of AED programs and AED law. "The first wave of AED lawsuits involved locations that didn't have them. Now, because more AEDs are employed, we're seeing suits about training, maintenance and failure to respond correctly. But because AED lawsuits are so new, the AED standards of care haven't evolved to a point that you can determine the standard of care."

Missouri does have a "Good Samaritan" law that tries to protect trained users who use the defibrillators in emergency situations from any civil damages incurred. But Lazar said the law will not protect someone in a lawsuit.

"Meaningful Good Samaritan laws protect conduct that is reasonable or in ordinary negligence," he said. "It does not protect conduct worse than that. The Missouri law only protects someone acting as a prudent person would. It doesn't protect against negligence. Essentially, it's a placebo law that does nothing to help someone in a lawsuit."

Other states also have laws requiring AEDs to be in health clubs and schools. Missouri does not. But AEDs are mandated on airplanes, and according to Casey, many airports have defibrillators because the anxiousness of flying can increase heart attacks.

Besides arguing that the city did not have a duty of care, Garside filed a motion to dismiss arguing that sovereign immunity protects the city.

"The only time that is waived is if there is a dangerous condition on the city's property or in an incident involving a city employee driving a motor vehicle," he said. "Neither of that is here."

Casey said he thinks the city has waived its immunity, citing that it has an insurance policy on the airport and also that caselaw has supported that airports are exempted from sovereign immunity because they are a business venture of the city.

The hearing on the defense's motion to dismiss will be heard Oct. 29 before Judge Melvyn Wiesman in St. Louis County Circuit Court.