Frequently Asked Questions
If a restaurant is certified to have an epi pen on premises, is there any additional liability?
There are instances where liability may be found. I can note that based on sections 3000-a and 3000-c of the New York Public Health Law (PHL), there is limited liability for entities and individuals who use the epinephrine auto-injector device (EpiPen) to render first aid or emergency treatment.
A person may be liable for damages when rendering aid only if their actions while rendering aid are found to be grossly negligent and result in injury or death to the person receiving aid (“Gross negligence means a failure to use even slight care, or conduct that is so careless as to show a complete disregard for the rights and safety of others”).
Note that if a restaurant “purchases, operates, facilitates implementation, or makes available” EpiPens, the restaurant may be held liable under section 3000-a(2) in instances where they have acted negligently, with grossly negligent, or engaged in intentional misconduct. A finding of negligence, gross negligent or intentional misconduct is case specific.
“Any person or entity that purchases, operates, facilitates implementation or makes available…an epinephrine auto-injector device as required by or pursuant to law or local law… shall not be liable for damages arising either from the use of that equipment by a person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or medical emergency, or from the use of defectively manufactured equipment; provided that this subdivision shall not limit the person’s or entity’s, the emergency health care provider’s, or other health care practitioner’s liability for his, her or its own negligence, gross negligence or intentional misconduct. ” 3000-a(2) of the PHL.
I guess this is the same rules with AED's at a gym?
Section 3000-a of the PHL broadly applies to “emergency medical treatment”, which includes AEDs and epinephrine auto-injector devices. The provisions regarding use and liability are generally the same, but there are additional requirements associated with the use of AEDs.
Who’s allowed to use it? is it only restaurant staff allowed to use it or can a parent/diner grab the epi pen to use it?
Technically, no one is permitted to use an EpiPen on behalf of a food service establishment unless he or she (1) has successfully completed an approved training course in the use of an EpiPen, (2) has been directed to do so by a health care practitioner, or (3) has a lawful patient-specific prescription (section 3000-c(2)(c)).
Nonetheless the provisions of section 3000-a(2) of the Public Health Law apply to “any person”. Therefore, anyone who voluntarily renders aid within a food service establishment (e.g., a patron of the establishment) shall not be liable for rendering aid as long as he or she did not act with gross negligence (“Gross negligence means a failure to use even slight care, or conduct that is so careless as to show a complete disregard for the rights and safety of others”). A finding of gross negligence is case specific. The standard of liability for the restaurant is “negligence, gross negligence or intentional misconduct.” Once again, such a finding is case specific.
“…any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.” 3000-a(1) of the PHL.