BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 127 (Calderon)
As Amended August 27, 2010
Hearing Date: August 31, 2010
Fiscal: No
Urgency: No
SK:jd
PURSUANT TO SENATE RULE 29.10
SUBJECT
Automatic External Defibrillators: Health Studios
DESCRIPTION
This bill, sponsored by Anytime Fitness, Inc., would change
existing law's requirement that health studios have trained
employees available to respond to an emergency using an
automatic external defibrillator (AED) during normal operating
hours to instead require those trained employees be available
during "staffed" operating hours.
This bill would impose specified requirements on health studios
that allow members to access facilities during times when
employees are not present on the premises. For example, among
other things, those clubs must: (1) ensure that a trained
employee is on the premises for no fewer than 50 hours per week;
(2) require that all employees complete a training course in
cardiopulmonary resuscitation and AED use; and (3) deny access
to the health studio when an employee is not present if the
studio is larger than 6,000 square feet.
This bill would also delete the sunset on existing law that
requires health studios to acquire an AED, making this
requirement permanent. This bill would provide that a health
studio that allows its members access to its facilities when
employees trained in the use of AEDs are not present, waives the
following: (1) existing law's exemption from liability for civil
damages, as specified; and (2) 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.
(more)
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BACKGROUND
An AED is a medical device which is 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.
In 1999, the Legislature passed and the Governor signed SB 911
(Figueroa, Ch. 163, Stats. 1999) which created a qualified
immunity from civil liability for trained persons who use AEDs
in good faith and without compensation when rendering emergency
care or treatment at the scene of an emergency. The immunity
does not apply in cases of personal injury or wrongful death
resulting from gross negligence or willful or wanton misconduct.
AB 2041 (Vargas, Ch. 718, Stats. 2002) expanded this immunity
by repealing the training requirements and also relaxing the
requirement that building owners must ensure that expected AED
users complete training as a condition of immunity. AB 2041 was
enacted with a five-year sunset which was extended another five
years to January 1, 2013 by AB 2083 (Vargas, Ch. 85, Stats.
2006).
In 2005, AB 1507 (Pavley, Ch. 431, Stats. 2005) was enacted to
require health studios, beginning July 1, 2007, to acquire,
maintain, and train personnel in the use of AEDs. AB 1507
specifically applied most of the AB 2041 provisions to health
studios but made the acquisition of AEDs mandatory rather than
voluntary until July 1, 2012.
This bill would change AB 1507's requirement that trained
personnel be available to respond to an emergency during normal
operating hours to instead require that they be available during
"staffed" operating hours. This bill would also delete the July
1, 2012 sunset, thereby making permanent the requirement that
health studios acquire an AED. This bill would also impose
certain requirements on health studios that allow members to
access facilities during times when employees are not present on
the premises, as specified.
CHANGES TO EXISTING LAW
1.Existing law requires health studios, beginning July 1, 2007,
to acquire an AED. This requirement sunsets on July 1, 2012.
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(Health & Saf. Code Secs. 104113(a)(1), (2).)
This bill would delete this sunset date, thus making this
requirement permanent.
2.Existing law provides that on or after July 1, 2012 a health
studio that elects to continue the installation of an AED
shall maintain and train personnel in the use of an AED and
shall not be liable for civil damages resulting from the use,
attempted use, or nonuse of an AED. (Health & Saf. Code Sec.
104113(a)(3).)
Existing law requires a health studio to do all of the
following:
a. Comply with all regulations governing the placement of
an AED.
b. Ensure that the AED is maintained and regularly tested,
as specified.
c. Ensure that the AED is checked for readiness after each
use and at least once every 30 days if the AED has not been
used in the preceding 30 days. Records of these checks
must be maintained.
d. Ensure that any person who renders emergency care or
treatment on a person in cardiac arrest by using an AED
activates the emergency services system as soon as possible
and reports any use of the AED to the licensed physician
and local EMS agency.
e. For every AED acquired, up to five units, no less than
one employee per AED shall complete a training course in
cardiopulmonary resuscitation (CPR) and AED use. After the
first five AEDs are acquired, for each additional five AEDs
acquired a minimum of one employee shall be trained.
f. Have a written plan that describes the procedures to be
followed in the event of an emergency that may involve the
use of an AED. (Health & Saf. Code Sec. 104113(e).)
Existing law requires acquirers of AEDs to have trained
employees who should be available to respond to an emergency
that may involve the use of an AED during normal operating
hours. (Health & Saf. Code Sec. 104113(e)(2)(D).)
This bill would change this requirement to instead require
those trained employees be available during "staffed"
operating hours.
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This bill would require health studios that allow members to
access facilities during times when employees are not present
on the premises to do all of the following:
a. ensure that a trained employee is on the premises for no
fewer than 50 hours per
week;
b. require that all employees complete a training course in
CPR and AED use;
c. deny access to the health studio when an employee is not
present if the studio is larger than 6,000 square feet;
d. inform a member, at the time the member contracts for the
use of the health studio, that a trained employee will not
be on the health studio's premises at all times;
e. submit annual reports to the Senate and Assembly
Judiciary Committees for the next four years regarding: (i)
the average number of hours per week that the health studio
is staffed; (ii) the average number of hours per week that
the health studio was staffed prior to the adoption of the
bill; and (iii) the total number of reported cardiac
incidents that have occurred during unstaffed hours, and
whether any of these incidents resulted in death.
3.Existing law provides for immunity from liability as follows:
a. An employee of a health studio who renders emergency
care or treatment is not liable for civil damages resulting
from the use, attempted use, or nonuse of an AED.
b. When an employee uses, does not use, or attempts to use
an AED to render emergency care or treatment, the members
of the board of directors of a facility are not liable for
civil damages resulting from any act or omission in
rendering the care or treatment, including the use or
nonuse of the AED.
c. These provisions of immunity from liability do not apply
in the case of personal injury or wrongful death that
results from gross negligence or willful or wanton
misconduct on the part of the person who uses, attempts to
use, or maliciously fails to use an AED to render emergency
care or treatment. (Health & Saf. Code Secs. 104113(b),
(c), (f).)
Existing law also provides for immunity from liability when an
employee of a health studio renders emergency care or
treatment using an AED, the owners, managers, employees, or
otherwise responsible authorities of the facility are not
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liable for civil damages resulting from any act or omission in
the course of rendering that care or treatment, provided the
facility has fully complied with existing law requiring
testing and staffing, as described above. (Health & Saf. Code
Sec. 104113(d).)
This bill would provide that a health studio that allows its
members access to its facilities when employees trained in the
use of AEDs are not present, waives the immunity described
above under Health and Safety Code Section 104113(d).
This bill would also provide that the health studio also
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.
COMMENT
1. Stated need for the bill
The author writes that the bill "clarifies Section 104113 of the
Health and Safety Code 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."
Sponsor Anytime Fitness, Inc. writes:
Health and Safety Code Section 104113 requires health studios
to acquire automatic external defibrillators, and train staff
in their use. Anytime Fitness is concerned that this section
could be construed to require health studios to have staff
present 24 hours a day. This is because the statute states
that health studios "shall have trained employees who should
be available to respond to an emergency that may involve the
use of an automatic external defibrillator during normal
operating hours." (Health and Safety Code section
104113(e)(2)(D)). Some have construed "normal operating hours"
to mean any hour a health studio is accessible to its members,
which would cripple the business model of clubs such as
Anytime Fitness, which allow access during non-staffed hours.
This bill clarifies this portion of the law by changing the
phrase from "normal operating hours "to "staffed operating
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hours." This change is consistent with recent changes adopted
by the State of Illinois, and legislation pending in the State
of New York. No other state requires health studios to be
staffed 24 hours a day.
2. Bill would remove requirement that employees trained in the
use of AEDs be available during normal operating hours
This bill, sponsored by Anytime Fitness, Inc. which operates
24-hour health clubs that are not staffed around the clock,
would change existing law's requirement that health studios have
employees trained in the use of AEDs available during normal
operating hours. Instead, this bill would provide that health
studios have trained employees available during "staffed"
operating hours. As a result, this bill raises the public
policy question of whether it is appropriate to permit health
studios to operate during hours when staff trained in the use of
AEDs are not present.
SHOULD HEALTH STUDIOS BE AUTHORIZED TO OPERATE DURING HOURS WHEN
STAFF TRAINED IN THE USE OF AEDS ARE NOT PRESENT, ARGUABLY
ENDANGERING THE LIVES OF HEALTH CLUB MEMBERS?
a. Recent amendments increase safeguards but do not address
fundamental issue raised by this bill
Recent amendments made to the bill impose certain requirements
on health studios that allow members to access facilities
during times when employees are not present on the premises.
For example, those health studios must ensure that a trained
employee is on the premises for no fewer than 50 hours per
week and require that all employees complete a training course
in cardiopulmonary resuscitation and AED use.
While these amendments would impose a minimum hourly
requirement during which the health studio must be staffed as
well as a requirement that when the studio is staffed those
staff must be trained in AED use, they do not fully address
the fundamental issue raised by this bill. That is, under
this bill, health studios would not be required to have staff
trained in the use of an AED present during all of the hours
when the health studio is open to its members.
Although this bill would require that health studios have
trained employees on the premises for no fewer than 50 hours
per week, that hourly requirement is arguably minimal given
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that there are 118 remaining hours of the week during which
the health studio may be unstaffed. This bill, consistent
with the sponsor's current practices, would permit the health
studio to remain open to members even though employees trained
in the use of AEDs were not on the premises.
b. Importance of having employees trained in the use of
AEDs onsite when health studio is open to members
Having employees trained in the use of AEDs onsite during
hours when the health studio is open can be critical in an
emergency situation. For example, the Sudden Cardiac Arrest
Association (SCAA) notes on its Web site that "[w]hile AEDs
are now very simple to use and many untrained laypersons have
used them successfully, it is best to assure that trained
personnel are always on site (at locations where this is
feasible). A trained user does not necessarily mean trained
medical personnel but also refers to laypersons with AED
training." ( http://associationdatabase.com/
aws/SCAA/pt/sd/news_article/8269/_parent/layout_details/false
(visited August 26, 2010).) In addition, the American Heart
Association has noted the following about training in its "AED
Programs Q & A":
If AEDs are so easy to use, why do people need formal
training in how to use them? An AED operator must know how
to recognize the signs of a sudden cardiac arrest, when to
activate the EMS system, and how to do CPR. It's also
important for operators to receive formal training on the
AED model they will use so that they become familiar with
the device and are able to successfully operate it in an
emergency. Training also teaches the operator how to avoid
potentially hazardous situations.
( http://www.americanheart.org/presenter.jhtml?
identifier=3011859 (visited August 26, 2010).)
A trained employee can also increase the likelihood of success
when an AED is used in an emergency situation. In the case of
sudden cardiac arrest (SCA), every second counts: there is a
ten percent reduction in survival for every minute delay in
response. It has been said "few life threatening emergencies
are as time sensitive as SCA," and the American Heart
Association recommends that the optimal response time from
collapse of the victim to on-scene arrival of the AED with a
trained rescuer is three minutes. A trained employee is
familiar with the use of the AED, thus increasing his or her
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confidence and comfort level during the stress and confusion
of an emergency situation.
A trained employee can also be key to avoiding errors. A
study performed in 2004 considered the use of AEDs by
untrained bystanders and attempted to determine "whether
untrained laypersons could accurately follow the visual and
voice prompt instructions of an AED." ("Automated External
Defibrillator Use by Untrained Bystanders," Andre, et al.,
Prehospital Emergency Care, July/September 2004.) Three of
the authors of the study were employees of Philips Medical
Systems, which manufactured one of the AEDs studied. The
study noted:
In this study of simulated cardiac arrest, we observed
several important mistakes made by untrained volunteers
when attempting to follow the voice and visual AED prompts.
A specific focus of this study was the ability of
participants to correctly position pads on the manikin.
Obvious errors that would affect debrillation success
included failure to remove the pads from the packages or to
remove the pad backings, or placing the pads on top of the
clothes.
The study concluded that clear, comprehensive, and explicit
instructions were needed to enable untrained laypersons to
safely and effectively use an AED. Having trained employees
at the health studio during operating hours, as required under
existing law, would help to address the errors noted in the
study and would ensure that trained staff, familiar with using
an AED in an emergency situation, were available.
Given these important rationales, the Committee should
consider the importance of having employees trained in the use
of AEDs onsite when the health studio is open to members, IN
CASE A MEMBER EXPERIENCES A SUDDEN CARDIAC EMERGENCY.
3. Bill would delete sunset date on requirement that health
studios acquire AEDs
Recent amendments to the bill delete the sunset date on existing
law's requirement that health studios acquire AEDs. This
provision of the bill is most strongly supported by the American
Heart Association, which argues that "permanently requiring
health studios to install AEDs will save lives."
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While this provision of the bill supports the policy goal of
increasing the placement of AEDs in health studios, the other
provisions of the bill arguably endanger the lives of health
club members by removing the requirement that employees trained
in the use of those AEDs be present during all of the studio's
operating hours. As a result, while there may be an AED
installed in a health studio, there will not necessarily be an
employee trained in the use of that AED onsite when a member
experiences a sudden cardiac emergency.
As described above in Comment 2, having trained employees onsite
can be critical to successful AED use in an emergency situation.
The Committee should thus consider the importance of having
trained employees onsite to respond to an emergency requiring
the use of an AED.
4. Concern that bill would encourage health clubs that currently
have trained staff onsite during all operating hours to
instead reduce staffing and permit access to the health club
during unstaffed hours; application of bill
This bill would change existing law's requirement that a health
studio have employees trained in the use of AEDs during "normal"
operating hours to instead require that the health studio have
trained employees only during "staffed" operating hours. This
change raises the concern that a health studio that is currently
fully staffed with trained employees during all operating hours
might scale back its staffed hours under this bill.
For example, some health clubs, such as 24-Hour Fitness,
maintain a 24-hour schedule with trained staff onsite during all
of those hours. Because of the concern that this bill would
encourage those health studios to scale back their (trained)
staffed hours, the bill was recently amended to require health
studios to deny access to the health studio when an employee is
not present if the studio operates in a space that is larger
than 6,000 square feet (including gym space, locker rooms,
offices). The effect of this amendment is to maintain existing
law's requirement that employees trained in the use of AEDs be
on the premises during normal operating hours with respect to
health studios that are larger than 6,000 square feet. In the
case of 24-Hour Fitness, the sponsor notes that the company has
various club types. For example, 24-Hour Fitness' "Express
Clubs" range from 6,000 to 10,000 square feet while its
"Ultra-sport clubs" are in the 100,000 square foot range. Some
24-Hour Fitness clubs, however, are much smaller than 6,000
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square feet and would be permitted to reduce their staffed
hours, under this bill. In addition, for purposes of reference,
staff notes that the California State Senate Chambers are
approximately 5,265 square feet. Sponsor Anytime Fitness'
facilities, on the other hand, range from 3,500 to 5,500 square
feet.
While the most recent amendment maintains existing law's trained
staff requirement with respect to larger health studios, the
bill could still potentially encourage health studios that
operate in spaces smaller than 6,000 square feet to scale back
their trained staffed hours so that the health club is open to
members when employees trained in the use of AEDs are not
present. Any health studio that did so would be subject to the
additional potential liability provided under the bill, as
described in Comment 5.
The CEO of Anytime Fitness, Inc., sponsor of the bill, asserts
that other states have changed their laws regarding health
studios that allow access to their clubs when staff are not
present and "[a]s these states have changed their laws, we have
not witnessed any change in staffing strategies employed by our
competitors in those states." The CEO notes several reasons for
this, including that "[t]he systems necessary to allow key card
access are expensive, and complicated to implement. . . . This
cost, coupled with the ongoing cost of issuing keys, and the
enhanced security (video surveillance, etc.) necessitated to
make the club secure when staff is not present would make such
an investment cost prohibitive-if the goal was to reduce
staffing during a few hours a day."
The CEO writes, "[f]or these and other reasons-such as the way
the clubs have marketed themselves and the expectations and
demands of their customer base-we have not witnessed any change
in staffing behaviors in other clubs operating in states that
have passed laws similar to SB 127. Further, given my
familiarity with the California market and our competition
there, I am confident in predicting that no such changes will
occur in California in response to SB 127."
This bill would also require a health studio that allows its
members to access facilities during times when employees are not
present on the premises to submit annual reports to the Senate
and Assembly Judiciary Committees for the next four years
regarding the average number of hours per week that the health
studio is staffed and the average number of hours per week that
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the health studio was staffed prior to the adoption of the bill.
This information is intended to illuminate whether this bill's
changes to existing law result in any behavioral changes on the
part of health studios with respect to their staffing
arrangements.
5. Bill would waive immunity from liability in certain instances
Under existing law, when a health studio employee renders
emergency care or treatment using an AED, the owners, managers,
employees, or otherwise responsible authorities of the facility
are not liable for civil damages that result from any act or
omission in the course of rendering that care or treatment.
This bill would provide that a health studio that allows its
members to access its facilities during operating hours when
employees trained in the use of AEDs are not on the premises
waives this immunity from liability 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.
In a negligence action, a defendant may raise an affirmative
defense asserting that the plaintiff assumed the risk of injury.
There are two types of assumption of the risk: primary
assumption of the risk and secondary assumption of the risk.
Under the primary assumption doctrine, "the defendant owes no
duty to protect a plaintiff from particular harms arising from
ordinary or simple negligence." (Shin v. Ahn (2007) 42 Cal.4th
482, citing Knight v. Jewett (1992) 3 Cal.4th 296.) Primary
assumption of the risk is a complete bar to a plaintiff's
recovery because the defendant has not breached a legal duty of
care. Under the secondary assumption of the risk doctrine, on
the other hand, the defendant owes a duty of care to the
plaintiff, but the plaintiff knowingly encounters a risk of
injury caused by the defendant's breach of that duty. (Knight,
supra, 3 Cal.4th 296, 308.) In that case, the plaintiff is not
barred from recovery, but the culpable conduct of both plaintiff
and the defendant is considered.
This bill implicates only the primary assumption of the risk
doctrine and makes clear that a health studio that allows its
members to access its facilities during operating hours when
employees trained in the use of AEDs are not on the premises
cannot raise the affirmative defense of primary assumption of
the risk, whether express (e.g., as part of the health studio's
membership contract) or implied, as to a claim arising out of
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the absence of trained staff. In that instance, the plaintiff
is not automatically barred from recovery by the primary
assumption of the risk doctrine and instead must prove the
elements of his or her negligence claim.
Although the bill's provision regarding primary assumption of
the risk is contained in the Health and Safety Code section
relating to AEDs, the language of that provision is ambiguous
and arguably could apply to non-cardiac related injuries that
occur because trained staff are absent. For example, the waiver
language contained in this bill could arguably apply to an
instance where a gym member was followed into a health studio
facility and attacked while no employees were present.
Support : American Heart Association
Opposition : None Known
HISTORY
Source : Anytime Fitness, Inc.
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0) (pursuant to
Assembly Rule 77.2)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Prior votes not relevant
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