BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session SB 953 (Walters) As Amended March 16, 2010 Hearing Date: May 4, 2010 Fiscal: No Urgency: No SK:jd SUBJECT Podiatrists: Liability for Emergency Services DESCRIPTION This bill, sponsored by the California Board of Podiatric Medicine, would delete a reference to an obsolete provision of law and would state legislative intent that nothing in the bill is intended to enlarge, reduce, or otherwise modify the scope of practice of podiatrists. BACKGROUND Podiatrists treat the human foot, including the ankle and muscles and tendons of the leg governing the functions of the foot. In order to become certified to practice podiatric medicine, candidates must complete four years of undergraduate education, graduate from one of seven approved colleges of podiatric medicine, and complete at least two years of postgraduate podiatric medical and surgical training. In addition to performing foot and ankle surgeries, podiatrists are also licensed to perform surgical procedures, under the direct supervision of a physician as an assistant at surgery, that are otherwise beyond the scope of practice of a podiatrist. A podiatrist may not, however, function as a primary surgeon for any procedure beyond his or her scope of practice. Existing law provides immunity from liability for a podiatrist who, in good faith, renders emergency care at the scene of an emergency, except for willful acts or omissions. Existing law also provides immunity for a podiatrist who fails to inform a (more) SB 953 (Walters) Page 2 of ? patient of the possible consequences of a medical procedure, as specified. This bill would delete a reference to an obsolete provision of law and would state legislative intent that nothing in the bill is intended to enlarge, reduce, or otherwise modify the scope of practice of podiatrists. SB 953 (Walters) Page 3 of ? CHANGES TO EXISTING LAW Existing law defines the scope of "podiatric medicine" as the diagnosis, medical, surgical, mechanical, manipulative, and electrical treatment of the human foot and the nonsurgical treatment of the muscles and tendons of the leg governing the functions of the foot. (Bus. & Prof. Code Sec. 2472.) Existing law provides that no podiatrist, who in good faith renders emergency care at the scene of an emergency, shall be liable for civil damages as a result of any acts or omissions by the podiatrist in rendering the emergency care. This immunity does not apply in the event of a willful act or omission. (Bus. & Prof. Code Sec. 2395.) Existing law provides that podiatrists are not liable for civil damages for injury or death caused in an emergency situation occurring in the podiatrist's office or in a hospital because of a failure to inform a patient of the possible consequences of a medical procedure when the failure was because: (1) the patient was unconscious; (2) the procedure was undertaken without the consent of the patient because the podiatrist reasonably believed that it should be done immediately and there was insufficient time to inform the patient; or (3) the procedure was performed on a patient legally incapable of giving consent and the podiatrist reasonably believed that the procedure should be done immediately and there was insufficient time to obtain the consent of the person authorized to provide that consent for the patient. This immunity from liability applies only to actions for damages for injuries or death arising out of the podiatrist's failure to inform, and not to actions for damages arising out of the podiatrist's negligence in rendering treatment. (Bus. & Prof. Code Secs. 2397(a), (b).) Existing law provides that nothing in the above-described provisions shall be construed to authorize practice by a podiatrist beyond that set forth in Business and Professions Code Section 2473, which has been repealed. (Bus. & Prof. Code Sec. 2397(d).) This bill would delete Section 2397(d), thus deleting this reference to an obsolete provision of law. SB 953 (Walters) Page 4 of ? This bill would state legislative intent that nothing in the bill is intended to enlarge, reduce, or otherwise modify the scope of practice of podiatrists. SB 953 (Walters) Page 5 of ? COMMENT 1. Stated need for the bill The author writes, "[d]octors of podiatric medicine are apparently the only licensed or unlicensed health practitioners prohibited from assisting beyond their normal scope during a medical emergency." The sponsor of this bill, the California Board of Podiatric Medicine (BPM), writes: In the event of a duly-proclaimed medical disaster, this bill removes a barrier enacted 30-years ago to highly-trained Doctors of Podiatric Medicine providing Good Samaritan emergency care beyond their regular foot and ankle scope in B&P Code Section 2472 (previously 2473). Following Katrina, the Governor's Office initiated the Healthcare Surge project in 2007 to ensure California would be better prepared in the event of a medical disaster. The Departments of Public Health and Consumer Affairs directed health licensing boards to alert licensees to be ready. They also asked that we remove barriers now that could slow medical response when caseloads are soaring, and provider ranks are thinned, immobilized and overwhelmed. BPM reviewed the Good Samaritan statutes . . . which [provide] exemptions from liability during medical disasters. We were surprised to find Section 2397(d), . . . During 2007 interagency meetings, there was agreement that Section 2397(d) is an unnecessary, imprudent anachronism that does not reflect good public policy. SB 953 does not alter the Doctor of Podiatric Medicine's normal scope of practice in Section 2472. It does provide DPMs can assist during an emergency as specified in Article 17 (Sections 2395-2398) without regard to Section 2472. 2. Deleting limitations on podiatrists' ability to provide care in an emergency This bill would delete a provision of law which provides that specified sections providing for immunity from liability shall not be construed to authorize practice by a podiatrist beyond that set forth in Business and Professions Code Section 2473, which has been repealed. This change is intended to delete SB 953 (Walters) Page 6 of ? limitations on the ability of a podiatrist to provide care in an emergency situation. Last year, AB 83 (Feuer, Ch. 77, Stats. 2009) revised existing law to provide that medical, law enforcement, and emergency personnel who, in good faith and not for compensation, render emergency medical or non-medical care at the scene of an emergency are not liable for any civil damages resulting from any act or omission. The scene of an emergency does not include emergency departments and other places where medical care is usually offered. Existing law further provides immunity from liability to physicians and surgeons and podiatrists who, in good faith, provide emergency care at the scene of an emergency. That immunity does not apply in the event of a willful act or omission. And, existing law provides that podiatrists are not liable for civil damages for injury or death caused in an emergency situation occurring in the podiatrist's office or in a hospital because of a failure to inform a patient of the possible consequences of a medical procedure when the failure was because of specified circumstances. Section 2397(d), which this bill would repeal, provides that nothing in these two provisions shall be construed to authorize practice by a podiatrist beyond that set forth in Business and Professions Code Section 2473, which has been repealed. The sponsor reads Section 2397(d) as limiting a podiatrist's ability to act in an emergency. As a result, this bill would delete this sentence in order to clearly permit podiatrists to provide care in an emergency situation that may go beyond their defined scope of practice. The intent is to provide podiatrists with the same liability protection as doctors. 3. Clarifying amendment needed As noted above, the sponsor indicates that this bill is intended to permit podiatrists to provide services beyond their normal scope of practice in an emergency situation, consistent with existing immunity provisions applicable to other licensees subject to this area of law (i.e., physicians and surgeons). This bill, however, contains legislative intent language providing that nothing in the bill is intended to enlarge, reduce, or otherwise modify the scope of practice of podiatrists. Because this language is confusing given the sponsor's stated intent, the author has agreed to amend the bill SB 953 (Walters) Page 7 of ? to clarify that the bill is not intended to enlarge, reduce, or otherwise modify the scope of practice except in situations covered by Article 13, which provides for exemptions from liability. The following amendment would achieve this: Suggested amendment : 1.On page 2, delete lines 1-5 2.On page 3, after line 6, insert "The amendments made to this section at the 2009-10 Regular Session of the Legislature by the act deleting subdivision (d) are not intended, nor shall they be interpreted, to enlarge, reduce, or otherwise modify the scope of practice of doctors of podiatric medicine as set forth in Section 2472 of the Business and Professions Code, except in situations covered by this article. This act is intended to delete a reference to an obsolete provision of law." Support : None Known Opposition : None Known HISTORY Source : California Board of Podiatric Medicine Related Pending Legislation : None Known Prior Legislation : None Known Prior Vote : Senate Business, Professions, and Economic Development Committee (Ayes 7, Noes 0) **************