BILL ANALYSIS
SB 127
Page 1
SENATE THIRD READING
SB 127 (Ron Calderon)
As Amended June 1, 2010
Majority vote
SENATE VOTE :Vote not relevant
JUDICIARY 10-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Hagman, Huffman, | | |
| |Jones, Knight, Monning, | | |
| |Saldana | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Seeks to provide that a health studio that allows its
members access to its facilities during operating hours when
employees trained in the use of automatic external
defibrillators (AEDs) are not on the facility premises, waives
the normal exemption from liability for civil damages as well as
the affirmative defense of primary assumption of the risk,
whether express or implied, as to a claim arising out of the
absence of trained staff.
EXISTING LAW :
1)Provides immunity from civil liability to any person who
completes a designated CPR course and who, in good faith,
renders emergency CPR at the scene of an emergency, without
the expectation of receiving compensation for providing the
emergency care.
2)Exempts from civil liability any local agency, entity of state
or local government, or other public or private organization
which sponsors, authorizes, supports, finances, or supervises
the training of citizens in CPR.
3)Provides immunity from liability for certain trained persons
who in good faith and without compensation use an AED in
rendering emergency care or treatment at the scene of an
emergency. This qualified immunity does not apply in the case
of personal injury or wrongful death resulting from the AED
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operator's gross negligence or willful or wanton misconduct.
Nor does it apply to the manufacturer, designer, developer,
distributor, installer, or supplier of an AED or
defibrillator.
4)Substantially relaxed the requirement that building owners and
others who acquire AEDs must ensure that expected AED users
complete an accepted CPR and AED course as a condition of
immunizing that building owner from any liability arising from
the use of the acquired AED. Maintained the requirement that
any immunities from civil liabilities in this context would
not apply in cases of gross negligence or willful or wanton
misconduct.
5)For a five-year period beginning July 7, 2007, requires a
health studio, as defined, to acquire, maintain, and train
personnel in the use of AEDs, as specified. Requires health
studios to maintain AED-trained personnel on site during all
of their normal operating hours.
FISCAL EFFECT : None
COMMENTS : This bill, sponsored by Anytime Fitness,
Incorporated, seeks to clarify Health and Safety Code Section
104113 to require that all health studios ensure that a trained
staff member proficient in the use of an AED is available during
staffed operating hours. Absent this change, current law could
be construed to prevent health studios from allowing access to
clubs during periods when staff is not present. In support the
author states:
An AED is a medical device used to administer an electric shock
through the chest wall to the heart after someone suffers
cardiac arrest. Built-in computers assess the patient's heart
rhythm, determine whether the person is in cardiac arrest, and
signal whether to administer the shock. Audible cues guide the
user through the process. Portable AEDs are available upon a
prescription from a medical authority. Their general cost is
between $1,500 and $2,000 according to the American Heart
Association (AHA).
According to the AHA, cardiac arrest is a life-or-death
situation, and the patient has very little chance of survival
without defibrillation. However, the window of opportunity for
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saving lives through defibrillation is very small, being only
10-13 minutes even if CPR is administered correctly. According
to the AHA, in cases of sudden cardiac arrest, CPR is merely a
maintenance tool, and defibrillation must take place to "shock"
the patient's heart into a proper working rhythm. Thus, the
public would be better served, and lives could be saved, if
businesses and offices across California are encouraged to have
AEDs on-site.
According to the AHA, AEDs contain microcomputers to accurately
identify sudden cardiac arrests and make extensive use of
audible prompting and signals to provide operators with clear
and concise instruction, making their use uncomplicated,
intuitive, and nearly foolproof. Safeguards are built in to
protect both operator and victim and to ensure that the AED will
only deliver a shock if, in fact, the device affirmatively
determines that a victim is in sudden cardiac arrest. Further,
the device does not allow for manual overrides, in the event a
panicked operator tries to administer the shock even when the
device finds that the victim is not in cardiac arrest.
According to staff research, the move in the last few years to
increase the number of AEDs available to first responder units
such as police and fire, as well as in high-traffic areas, such
as airports and casinos, has been met with overwhelming
community support. A survey of worldwide news sources indicates
that AEDs have been responsible for many saved lives after
cardiac arrest incidents and that AEDs are in such high demand
that schools and local communities have taken to outside
fundraising to purchase the equipment. A high school student in
New York State had a heart attack after competing in a wrestling
match. A bystander trained in both CPR and AED use came to his
aid and attempted CPR but did not get a response. She then
called for the AED, which are mandated by New York Law in every
school, and was able to bring the young man back. As of January
22, 2006, in New York, everyone who is trained in CPR will also
have to be trained to use AEDs as well. In Georgia, one
neighborhood raised funds to purchase an AED after a boy was
struck by a baseball while playing and could not be
resuscitated. Local fire departments in Georgia are pushing for
communities to pool funds and purchase the units for
neighborhood use.
The AEDs have been used successfully in such places as
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California's Ontario Airport, and Connecticut's Foxwoods Casino.
According to a Foxwoods' security director, the casino has 15
AEDs on the property and has used them more than 40 times in the
last four years, and more than 300 security personnel and
emergency medical technicians at the casino are trained to use
the machines. In the Minneapolis Airport, passengers waiting
for flights can receive basic training on how to use the machine
in about 5 minutes. The passengers are trained by firefighters
at stations in the airport and the program is funded by
Medtronic which makes AEDs. The goal of all these programs is
to make AEDs as familiar as fire extinguishers and as readily
available to the general public. The FDA has even approved of
their over-the-counter purchase without a prescription.
A search of the Lexis Nexis database continues to reveal no news
articles, or successful federal or state cases, suing for
liability against users of AEDs. Judiciary Committee staff
research indicates that these devices are virtually "fail-safe"
and easy enough for a child to use (although this is not
generally recommended). No negative reaction has been found
regarding the use of the AEDs, or any suit filed against someone
using the AEDs. This is most likely due to the design
programming that will not allow the user to administer an
electric shock needlessly, therefore creating little chance of
user-error in administering the AED. The only possible negative
comment was that, hypothetically speaking, someone with a living
will/Do Not Resuscitate (DNR) order may be in public and suffer
a cardiac episode. A bystander, unable to know the person has a
DNR, or what his/her specific medical wishes are, may administer
the AED against his/her wishes.
As noted above, this measure clarifies that a health club waives
the affirmative defense of primary assumption of the risk,
whether express or implied, as to a claim arising out of the
absence of AED-trained staff at its facility. The issue of
assumption of risk involves the existence and scope of a
defendant's duty of care, which is a legal question that depends
on the nature of the activity involved and the parties'
relationship to that activity. The doctrine of assumption of
risk in negligence cases embodies two components: 1) primary
assumption of risk-where the defendant owes no duty to the
plaintiff to protect him or her from the particular risk; and,
2) secondary assumption of risk-where the defendant owes the
plaintiff a duty, but the plaintiff knowingly encounters a risk
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created by the breach of that duty. (Knight v. Jewett, 3
Cal.4th 296, 308 (1992).) Primary assumption of risk operates
as a complete bar to a plaintiff's cause of action, while the
doctrine of secondary assumption of risks is part of the
comparative fault scheme, where the trier of fact considers the
relative responsibility of the parties in apportioning the loss.
(Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 at
p. 132.) Before concluding that a case comes within the
doctrine of primary assumption of risk, a court must not only
examine the nature of the activity, but also the " 'defendant's
role in, or relationship to" [that activity.] " (Knight, supra,
3 Cal.4th at p. 317.) Indeed, the scope of the legal duty owed
by the defendant will frequently depend on such role or
relationship. The Knight court noted that many courts, in
analyzing the duty of the owner of a sports facility or ski
resort, had defined "the risks inherent in the sport not only by
virtue of the nature of the sport itself, but also by reference
to the steps the sponsoring business entity reasonably should be
obligated to take in order to minimize the risks without
altering the nature of the sport." (Id. at p. 317, italics
added.) The court concluded "that in the sports setting, as
elsewhere, the nature of the applicable duty or standard of care
frequently varies with the role of the defendant whose conduct
is at issue in a given case." (Id. at p. 318.)
This measure thus clarifies that a health club appropriately
waives the affirmative defense of primary assumption of the
risk, whether express or implied, as to any claim arising out of
the absence of AED-trained staff at its facility if and when a
customer is allegedly harmed through the absence of AED-trained
staff.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334 FN:
0005374