BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   June 22, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     SB 953 (Walters) - As Amended:  May 19, 2010

                                  PROPOSED CONSENT

           SENATE VOTE  :   32-0
           
          SUBJECT  :  PODIATRISTS: LIABILITY FOR EMERGENCY SERVICES

           KEY ISSUE  :  SHOULD EXISTING LAW BE CLARIFIED TO ENSURE THAT  
          PODIATRISTS ENJOY THE SAME LIABILITY PROTECTION AS OTHER  
          PHYSICIANS WHEN RENDERING CARE IN AN EMERGENCY SITUATION?
           
          FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS

          This non-controversial bill, sponsored by the California Board  
          of Podiatric Medicine (BPM), seeks to clarify that specified  
          immunity from liability that generally applies to physicians  
          rendering emergency care should also apply to doctors of  
          podiatric medicine.  The sponsor contends that Section 2397(d),  
          which references an obsolete provision of law repealed in 1998,  
          unnecessarily limits a podiatrist's ability to act in an  
          emergency because immunity from liability granted to doctors for  
          rendering emergency care is not similarly extended to  
          podiatrists under Section 2397(d).  The author reasonably  
          contends that because podiatrists are highly-skilled doctors  
          with training and education equivalent to that of other medical  
          specialists, there is no justification to specifically exclude  
          podiatrists from immunity from liability that, if withheld, may  
          limit their ability to render care in emergency situations.   
          This bill also specifically states it is intended to clarify  
          that Good Samaritan immunity for medical, law enforcement, and  
          emergency personnel who render emergency medical or non-medical  
          care at the scene of an emergency, provided by last year's AB  
          83, also apply to doctors of podiatric medicine rendering  
          emergency care.  At the same time, the bill reiterates that it  
          may not be construed to expand or modify the scope of practice  
          of podiatrists under existing law.  This bill passed the Senate  
          by a 32-0 vote and passed the Assembly Business, Professions and  








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          Consumer Protection Committee by a 11-0 vote.  There is no known  
          opposition to this bill.

           SUMMARY  :  Seeks to clarify that specified immunity from  
          liability that generally applies to physicians rendering  
          emergency care also apply to doctors of podiatric medicine.   
          Specifically,  this bill  :    

          1)Deletes a provision of law which provides that immunity from  
            liability conferred on doctors in general shall not be  
            construed to authorize practice by a podiatrist beyond that  
            allowed by Business and Professions Code Section 2473, which  
            has been repealed.

          2)States legislative intent that nothing in this bill is  
            intended or shall be construed to enlarge, reduce, or  
            otherwise modify the scope of practice of podiatrists.  States  
            that this act is intended to clarify that specified exemptions  
            from liability apply to podiatrists rendering emergency care  
            and to delete a reference to an obsolete provision of law.

           EXISTING LAW  :  

          1)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.  (Business & Professions Code Section 2472.  All  
            further references will be to this code unless otherwise  
            noted.)

          2)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.   
            (Section 2395.)

          3)Provides that medical, law enforcement, and emergency  
            personnel, as defined, who in good faith, and not for  
            compensation, render emergency medical or non-medical care at  
            the scene of an emergency shall not be liable for any civil  
            damages resulting from any act or omission.  Further provides  
            that the scene of an emergency shall not include emergency  
            departments and other places where medical care is usually  








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            offered.  (Health and Safety Code Section 1799.102(a).)

          4)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: 

             a)   the patient was unconscious; 

             b)   the procedure was undertaken without the consent of the  
               patient because the podiatrist reasonably believed that it  
               should be performed immediately and there was insufficient  
               time to inform the patient; 

             c)   the procedure was performed on a patient legally  
               incapable of giving consent and the podiatrist reasonably  
               believed that the procedure should be undertaken  
               immediately and there was insufficient time to obtain the  
               consent of the person authorized to provide that consent  
               for the patient.  (Section 2397(a).)

          5)Limits the above immunity from civil liability 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 or  
            failing to render treatment.  (Section 2397(b).)

          6)Provides that nothing in these provisions for immunity from  
            liability shall be construed to authorize practice by a  
            podiatrist beyond that set forth in Business and Professions  
            Code Section 2473 (which was repealed in 1998.)  (Section  
            2397(d).)

           COMMENTS  :  This non-controversial bill, sponsored by the  
          California Board of Podiatric Medicine (BPM), seeks to clarify  
          that specified immunity from liability that generally applies to  
          physicians rendering emergency care should also apply to doctors  
          of podiatric medicine.  According to the sponsor, this bill is  
          needed to remove a barrier enacted 30 years ago to prevent  
          podiatrists from providing Good Samaritan emergency care beyond  
          their regular foot and ankle scope as defined by Section 2472  
          (previously Section 2473.)  The sponsor explains the need to  
          remove this barrier, known as Section 2397(d), writing:









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               Following Hurricane 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.

          The author also states in support of the bill:

               Doctors of podiatric medicine are apparently the only  
               licensed or unlicensed health practitioners prohibited  
               from assisting beyond their normal scope during a  
               medical emergency.  There is no basis for excluding  
               one of the more highly trained provider groups.  It  
               could cost the lives of Californians, unnecessarily,  
               in the event of a disaster.  

           Background on podiatric medicine.   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 under Section 2475.

          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.  Surgical  
          treatment by a podiatrist of the ankle and tendons at the level  
          of the ankle are specifically restricted to certain venues,  








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          including licensed general acute care hospitals, licensed  
          surgical clinics, and ambulatory surgical centers, as provided.

           This bill deletes limitations on the ability of a podiatrist to  
          render emergency care.   The sponsor contends that Section  
          2397(d) unnecessarily limits a podiatrist's ability to act in an  
          emergency because immunity from liability granted to doctors for  
          rendering emergency care is not similarly extended to  
          podiatrists by Section 2397(d), which reads "Nothing in the  
          article shall be construed to authorize practice by a podiatrist  
          beyond that set forth in Section 2473."  Section 2473 was  
          repealed in 1998 (SB 1981, Chapter 736), making this reference  
          obsolete, but the same legislation re-enacted many of its  
          provisions into Section 2472, which outlines the scope of  
          practice of podiatric medicine today.  It is unknown what the  
          specific rationale for singling out podiatrists was in 1980 when  
          Section 2397 became law, but the author contends that Section  
          2397(d) is "an unnecessary, imprudent anachronism" that does not  
          reflect good public policy.

          To remove this limitation, this bill would delete this sentence  
          to clearly permit podiatrists to provide care in an emergency  
          situation that may go beyond their defined scope of practice.   
          The intent is to simply provide podiatrists with the same  
          liability protection that other doctors and fellow licensees  
          enjoy under Section 2397, and also delete a reference to an  
          obsolete provision of law.  The author reasonably contends that  
          because podiatrists are highly-skilled doctors with training and  
          education equivalent to that of other medical specialists, there  
          is no justification to specifically exclude podiatrists from  
          immunities that may limit their ability to render emergency care  
          for fear of being sued.

           Interaction with recent immunity from liability provisions under  
          AB 83 (2009)  .  In addition to liability protections afforded to  
          doctors in emergency situations occurring in the licensee's  
          office or in a hospital under Section 2397, recent changes in  
          Good Samaritan law also provide protection from liability to  
          medical and other personnel at emergency scenes away from the  
          hospital or office.  Last year, AB 83 (Feuer, Ch. 77, Stats.  
          2009) revised Health and Safety Code Section 1799.102(a) 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 (as  
          defined) are not liable for any civil damages resulting from any  








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          act or omission.  Under AB 83, the scene of an emergency  
          excludes emergency departments and other places where medical  
          care is usually offered.

          This bill specifically states it is intended to clarify that  
          both types of exemptions from liability discussed above (i.e.  
          under Article 17 (commencing with Section 2395) of Chapter 5 of  
          Division 2 of the Business and Professions Code, and under  
          Section 1799.102 of the Health and Safety Code) apply to doctors  
          of podiatric medicine rendering emergency care.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Board of Podiatric Medicine (BPM) (sponsor)
           
            Opposition 
           
          None on file

           Analysis Prepared by  :   Anthony Lew / JUD. / (916) 319-2334