BILL ANALYSIS
SB 127
Page 1
SENATE THIRD READING
SB 127 (Ron Calderon)
As Amended August 27, 2010
Majority vote
SENATE VOTE :Vote not relevant
JUDICIARY 10-0 JUDICIARY 9-0
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|Ayes:|Feuer, Tran, Brownley, |Ayes:|Feuer, Tran, Brownley, |
| |Evans, Hagman, Huffman, | |Hagman, Huffman, Jones, |
| |Jones, Knight, Monning, | |Knight, Monning, Saldana |
| |Saldana | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Seeks to establish requirements for the use of automated
external defibrillators (AEDs) by those health studios generally
known as "24-hour clubs" that do not maintain personnel on site 24
hours a day but are accessible to members during times when no
employee is present. Specifically, this bill :
1)Removes the July 1, 2012 sunset date provisions for existing
requirements that every health studio acquire and maintain an
AED, and train personnel in its use, thereby extending these
requirements indefinitely.
2)Requires a health studio that allows its members access to its
facility during times when it does not have an employee on the
premises to:
a) Train all employees in CPR and the use of an AED within 30
days of commencing employment;
b) Ensure that trained staff are on the premises of the
health studio a minimum of 50 hours per week;
c) Submit annual reports for the next four years to the
Assembly and Senate Judiciary Committees containing specified
information about the average number of hours the health
studio was staffed prior to and after adoption of this
legislation, and the number of reported cardiac incidents
that occurred during non-staffed hours. Permits franchisors
for a chain of franchised health studio to collect and report
this data for its franchisees; and,
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d) Deny access to members when an employee is not present if
the health studio operates in a space that is larger than
6,000 square feet.
3)Provides that any health studio that allows members access to
its facilities during operating hours when employees trained in
AED use are not present waives:
a) Immunity from liability for civil damages resulting from
any act or omission in rendering emergency care using an AED;
b) 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,
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
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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, Inc., seeks to
establish requirements for the use of automated external
defibrillators (AEDs) by those health studios generally known as
"24-hour card key clubs" that do not maintain personnel on site 24
hours a day but are accessible to members during times when no
employee is present. First, this bill would remove the sunset
date provision from Section 104113 of the Health and Safety Code,
thereby having the effect of indefinitely requiring that all
health studios acquire and maintain AEDs, and train their
personnel in the use of these devices. In addition, this bill
would establish basic training and staffing requirements for those
health studios that do not have AED-trained employees on the
premises at all times (also known as"24-hour clubs"), but allow
access to members when no employees are present. This bill also
would require health studios, including franchisors of chains of
health studios, to collect and report specified data over the next
four years to the Senate and Assembly Judiciary Committees for
future evaluation. Finally, with respect to health studios that
are 24-hour clubs, this bill appropriately waives 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, and waives immunity from liability for civil damages
resulting from any act or omission by an employee rendering
emergency care using an AED.
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,
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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
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.
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
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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
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: 0006795