BILL ANALYSIS
SB 127
Page 1
SENATE THIRD READING
SB 127 (Ron Calderon)
As Amended August 20, 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 operator's gross
negligence or willful or wanton misconduct. Nor does it apply
to the manufacturer, designer, developer, distributor,
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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 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
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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
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
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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 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
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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: 0006119