BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 63 (Price)
As Amended April 25, 2011
Hearing Date: May 10, 2011
Fiscal: No
Urgency: No
SK
SUBJECT
Automatic External Defibrillators: Immunity
DESCRIPTION
This bill would provide that it is the intent of the Legislature
that all public high schools acquire and maintain at least one
automatic external defibrillator (AED). This bill would require
schools that decide to acquire and maintain an AED, or to
continue to use and maintain an existing AED, to comply with
specified requirements relating to, among other things,
maintenance and testing of the device. This bill would also
provide immunity from liability for a school district and its
employees, as specified.
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. SB 911 also
provided for immunity from liability for persons or entities
that acquire an AED, provided that the person or entity has
complied with specified maintenance, training, and notice
(more)
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requirements. 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 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 254 (Nakanishi, Ch. 111, Stats. 2005) amended the
above provisions to specify that, if an AED is placed in a
public or private K-12 school, the school principal must
annually provide school administrators and staff with a brochure
describing the proper use of an AED, post similar information
next to the AED, and designate trained employees to be available
to respond to an emergency that may involve the use of an AED
during normal operating hours.
This bill would provide that it is the intent of the Legislature
that all public high schools acquire and maintain at least one
AED. This bill would require schools that decide to acquire and
maintain an AED to comply with specified requirements and would
also provide immunity from liability for a school district and
its employees, as specified.
CHANGES TO EXISTING LAW
Existing law provides for immunity from liability for any person
who, in good faith and not for compensation, renders emergency
care using an AED at the scene of an emergency. (Civ. Code Sec.
1714.21(b).)
Existing law provides that a person or entity that acquires an
AED for emergency use is not liable for any civil damages
resulting from any acts or omissions when the AED is used to
render emergency care provided that the person or entity has
complied with the maintenance, training, and notice requirements
described in more detail below. (Civ. Code Sec. 1714.21(d).)
Existing law provides that the qualified immunity described
above does not apply in the case of personal injury or wrongful
death that results from the gross negligence or willful or
wanton misconduct of the person who uses the AED to render
emergency care. (Civ. Code Sec. 1714.21(f).)
Existing law provides that any person or entity that acquires an
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AED is not liable for any civil damages resulting from any acts
or omissions in the rendering of the emergency care if that
person or entity does all of the following:
Complies with all regulations governing the placement of an
AED;
Ensures all of the following:
o the AED is maintained and regularly tested, as
specified;
o the AED is checked for readiness after each use and at
least once every 30 days if it has not been used in the
preceding 30 days. Records of these checks must be
maintained;
o that any person who renders emergency care using the AED
activates the emergency medical services system as soon as
possible, and reports any use of the AED to the local EMS
agency;
o for every AED unit acquired up to five units, at least
one employee per unit must complete a training course in
cardiopulmonary resuscitation and AED use. After the first
five AED units are acquired, for each additional five units
acquired, one employee shall be trained beginning with the
first unit acquired. Acquirers of AEDs shall have trained
employees who should be available to respond to an
emergency that may involve the use of an AED during normal
operating hours;
o there is a written plan describing the procedures to be
followed in the event of an emergency that may involve
using an AED;
o if an AED is placed in a public or private K-12 school,
the principal must annually provide school administrators
and staff with a brochure describing the proper use of an
AED, post similar information next to the AED, and
designate trained employees to be available to respond to
an emergency that may involve the use of an AED during
normal operating hours; and
Any person or entity that supplies an AED shall: (1) notify an
agent of the local EMS agency of the existence, location, and
type of AED acquired; and (2) provide the AED acquirer with
information regarding the AED's use, installation, operation,
training, and maintenance. (Health & Saf. Code Sec.
1797.196(b).)
Existing law provides that the qualified immunity described
above does not apply in the case of personal injury or wrongful
death that results from the gross negligence or willful or
wanton misconduct of the person who uses the AED to render
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emergency care. (Health & Saf. Code Sec. 1797.196(e).)
Existing law provides that the above-described provisions sunset
on January 1, 2013 and, after that date, are replaced by
provisions requiring maintenance of the unit and training for
expected AED users. (Health & Saf. Code Sec. 1797.196(g).)
This bill would provide that it is the intent of the Legislature
that all public high schools acquire and maintain at least one
AED.
This bill would provide that if a public high school decides to
acquire and maintain an AED, or decides to continue to use and
maintain an existing AED, it must comply with the following:
Place an AED in a centralized location on campus;
Ensure that an AED is available for use at a school-sponsored
athletic event;
Ensure and maintain records of the following:
o That the AED is maintained and regularly tested
according to the operation and maintenance guidelines set
forth by the manufacturer, and
o That the AED is checked for readiness after each use and
at least once every 30 days if the AED has not been used
during the preceding 30 days;
Prepare a written medical emergency preparedness plan that
describes the procedures to be followed in the event of an
emergency. The plan shall include (but not be limited to)
calling 911; and
Require all school employees expected to administer an AED in
an emergency to complete a training course in cardiopulmonary
resuscitation and AED use, as specified.
This bill would provide that an employee of a school district
who renders emergency care or treatment under the bill is not
liable for civil damages resulting from the use, attempted use,
or nonuse of an AED, except 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, or
maliciously fails to use an AED to render emergency care or
treatment.
This bill would also provide that an employee or school district
is not liable for civil damages resulting from any act or
omission in rendering the emergency care or treatment if a
school district employee uses, attempts to use, or does not use
an AED consistent with the requirements of the bill. This
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immunity from liability also does 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, or maliciously fails to use an AED to render
emergency care or treatment.
This bill would permit a public high school to solicit and
receive nonstate funds to acquire and maintain an AED. Those
funds shall only be used to acquire and maintain an AED and to
provide training to school employees regarding AED use.
COMMENT
1. Stated need for the bill
The author writes:
The bill is simply intended to encourage school districts and
schools to acquire and maintain defibrillators, while
maintaining many of the safeguards already in existing law.
The bill was amended in Senate Education Committee to remove
the mandate that schools acquire AEDs. While many schools in
the state have at least one AED on campus, many do not. . . .
The use of an automated external defibrillator (AED) is
essential for any chance of survival. Studies by the American
Heart Association also show that the single determinant of
survival after SCA Ýsudden cardiac arrest] is the time from to
defibrillation, with survival rates declining 7 percent to 10
percent per minute for every minute that defibrillation is
delayed. According to the Sudden Cardiac Arrest Association,
ventricular fibrillation studies show that if early
defibrillator is provided within the first five minutes, the
odds are 90 percent that the victims life can be saved. After
the first minute, the survival rate drops ten percent with
every minute.
The National Athletic Trainer's Association reports that more
than 100 young athletes die each year in sport-related
incidents and estimates that close to half of these deaths are
attributed to sudden cardiac arrest. The American Heart
Association reports that about 5,800 children 18 years old and
under suffer out-of-hospital cardiac arrest each year. The
incidence of out-of-hospital sudden cardiac arrest in high
school athletes ranges from .28 to 1 death per 100,000 high
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school athletes annually in the United States.
2. Immunity from liability generally tracks existing law;
amendment suggested so this provision more closely aligns with
existing law
Existing law already provides immunity protection to laypersons
who use, fail to use, or attempt to use an AED to render
emergency care, provided that they do not act with gross
negligence or willful or wanton misconduct. This bill similarly
provides immunity from liability specifically for school
districts and their employees who use, attempt to use, or fail
to use an AED. As under existing law, this immunity does 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.
This immunity provision is generally consistent with Health and
Safety Code Section 104113, relating to health studios, with one
important exception. That code section provides immunity from
liability for owners, managers, employees, and other responsible
authorities when an employee renders emergency care or treatment
using an AED provided that the health studio facility fully
complies with requirements relating to the placement of the AED,
maintenance, testing, and training (see Comment 3 for discussion
of these requirements). And, Civil Code Section 1714.21(d) and
Health and Safety Code Section 1797.196(b) also require that the
same placement, maintenance, testing, and training requirements
must be complied with in order for the person who acquired the
AED to be immune from liability.
This bill does not contain a similar provision specifying that
the placement, maintenance, testing, and training requirements
must be met in order for the immunity to attach. The following
suggested amendment would address this issue:
Suggested amendment :
On page 5, line 1, after "AED" insert "provided that the school
fully complies with subdivision (b)"
3. Requirements intended to be consistent with existing law;
amendments suggested to carry out author's intent
This bill would require public high schools that decide to
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acquire and maintain an AED to comply with the following
requirements: (1) place an AED in a centralized location on
campus; (2) ensure that an AED is available for use at a
school-sponsored athletic event; (3) ensure and maintain records
of the following: (a) that the AED is maintained and regularly
tested according to the operation and maintenance guidelines set
forth by the manufacturer; and (b) that the AED is checked for
readiness after each use and at least once every 30 days if the
AED has not been used during the preceding 30 days; (4) prepare
a written medical emergency preparedness plan that describes the
procedures to be followed in the event of an emergency (the plan
must include-but not be limited to-calling 911); and (5) require
all school employees expected to administer an AED in an
emergency to complete a training course in cardiopulmonary
resuscitation and AED use.
This bill would also provide immunity from liability for a
school district and its employees, as specified. As a result,
it is important that those persons and entities comply with the
above requirements in order to assure that any AED used in an
emergency is maintained properly and checked regularly to best
ensure the safety of both the victim and the AED user. The
author's office indicates that these provisions of the bill are
intended to be consistent with other provisions of law that
impose maintenance, training, and similar requirements. While
this is the case for the most part, there are a few differences
of note, as described below.
a. Maintenance and regular testing requirements
For example, the two main statutes relating to AED use-Health
and Safety Code Section 1797.196 and Health and Safety Code
Section 104113-use identical language in describing the
requirements that must be met. They both require that the AED
be maintained and regularly tested according to the operations
and maintenance guidelines set forth by the manufacturer,
American Heart Association, and American Red Cross as well as
any applicable rules and regulations set forth under the
federal Food and Drug Administration and any other applicable
state and federal authority.
This bill, on the other hand, requires only that the
guidelines set forth by the manufacturer be met. (See
subdivision (f), below for suggested amendments to address
this issue.)
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b. Placement of AED
Both Health and Safety Code sections also require that the
person or entity acquiring the AED comply with all regulations
governing the placement of the AED. This bill does not
contain that same requirement, which is critical since the
placement of an AED can be the key to whether it may be used
successfully or not. (See subdivision (f), below for
suggested amendments to address this issue.)
c. Checks for readiness
In addition, both Health and Safety Code sections require that
the AED be 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 those checks must be
maintained.
This bill also requires checking the AED consistent with the
above-referenced Health and Safety Code sections, but it does
not require that records of the checks be maintained. (See
subdivision (f), below for suggested amendments to address
this issue.)
d. Activation of the emergency medical services system and
reporting
Both Health and Safety Code sections also require that any
person who renders emergency care or treatment using the AED
must activate the emergency medical services system as soon as
possible, and must report any use of the AED to the local
Emergency Medical Services agency. This bill does not contain
this language. (See subdivision (f), below for suggested
amendments to address this issue.)
The American Heart Association's (AHA) report, "Community Lay
Rescuer Automated External Defibrillation Programs: Key State
Legislative Components and Implementation Strategies . . . ,"
Circulation: Journal of the American Heart Association, 2006
recommends a "Link with the EMS System" as one of the four
essential elements for a successful AED program that
should-like training and maintenance-be included in state AED
legislation. In fact, the AHA report provides that
notification to the local EMS system should be an
"expectation," and state AED legislation should provide that
an owner "shall" be required to notify the local EMS. The
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report explains the rationale for notification, stating that
"Ýi]f the dispatcher knows the type and location of an AED at
the site of the emergency, the dispatcher can direct the
rescuer to get the AED and can coach the rescuer in both CPR
and AED use."
e. Training; number of employees who must be trained
Finally, the existing Health and Safety Code provisions
require training and specify that for every AED unit acquired
up to five units, at least one employee per unit must complete
a training course in cardiopulmonary resuscitation and AED use
that complies with the regulations adopted by the Emergency
Medical Services Authority and the standards of the American
Heart Association or the American Red Cross. After the first
five AED units are acquired, for each additional five units
acquired, one employee shall be trained beginning with the
first unit acquired. Acquirers of AEDs shall have trained
employees who should be available to respond to an emergency
that may involve the use of an AED during normal operating
hours.
This bill does not contain these provisions and instead
requires that public high schools that voluntarily elect to
acquire and maintain an AED, or to continue to use and
maintain an existing AED, must require all school employees
expected to administer an AED in an emergency to complete a
training course in cardiopulmonary resuscitation and AED use
that complies with the regulations adopted by the Emergency
Medical Services Authority and the standards of the American
Heart Association or the American Red Cross.
This deviation from the existing Health and Safety Code
provisions would appear appropriate in the case of schools as
there is likely to be more than one school employee who is
"expected to administer an AED in an emergency" and would
therefore, under this bill, be required to be trained. As a
result, if a high school elected to acquire and maintain an
AED, that school must train all employees who are expected to
use the AED.
In explaining the importance of training, the AHA notes 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
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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.
f. Amendments to address differences
The following amendments are suggested to address the
differences between this bill and existing law in order to
make them consistent, as the author intends:
Suggested amendments:
1. On page 3, line 39, after "visitors" insert "and ensure
that the placement of the AED complies with all regulations
governing its placement"
2. On page 4, line 10, after "manufacturer" insert "the
American Heart Association, and the American Red Cross, and
according to any applicable rules and regulations set forth
by the governmental authority under the federal Food and
Drug Administration and any other applicable state and
federal authority"
3. On page 4, line 14, after the period insert "Records of
those checks shall be maintained."
4. On page 4, between lines 15 and 16, insert "Ensure that
a person who renders emergency care or treatment to a
person in cardiac arrest by using an AED activates the
emergency medical services system as soon as possible, and
reports the use of the AED to the local Emergency Medical
Services agency."
4. Location of AEDs critical
This bill would require public high schools that elect to
acquire and maintain an AED, or continue to use and maintain an
existing AED, to place the AED in a centralized location on
campus for the purpose of preventing deaths resulting from
sudden cardiac arrests among pupils, faculty, and visitors.
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The California Association of Joint Powers Authorities (CAJPA)
is opposed to this measure and raises concerns that "strict
compliance with SB 63 mandates may be impossible with a single
AED given that multiple athletic events frequently occur at the
same time on a school campus. . . . It is also important to
note that, due to the quickness with which an AED is needed,
simply keeping it at a central location may be entirely
ineffective in case of immediate need."
CAJPA raises an important point with respect to the location of
the AED. Because school campuses are often large and, as CAJPA
notes, "multiple athletic events frequently occur at the same
time on a school campus," the issue of AED placement is
critical. Although the bill would not require that a specified
number of AEDs be installed, experts such as the American Heart
Association recommend that organizations "Ýc]onsider placing
more than one AED at a location that covers a large area . . .
while there's no research that indicates a recommended coverage
area for an AED, . . . achieving a 3-minute response time
should be the primary guide to making placement decisions." In
addition, it should be noted that the three-minute response time
must take into account the time to get to the AED and the time
to get back to the victim.
As a result, public high schools that elect to acquire and
maintain an AED, or continue to use and maintain an existing
AED, should consider installing AEDs in multiple locations, as
it may not be sufficient to install an AED in one location
alone. The following amendment would add this consideration to
the intent language:
Suggested amendment :
On page 3, line 30 after "(AED)" insert "and consider
installing AEDs in multiple locations"
5. Existing law contains provisions relating to AEDs in schools
Under existing law, if an AED is placed in a public or private
K-12 school, the principal must annually provide school
administrators and staff with a brochure, approved as to
contents and style by the American Heart Association or the
American Red Cross, describing the proper use of an AED. The
principal must also ensure that similar information is posted
next to the AED and must notify school employees as to location
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of all AEDs on campus.
Existing law also requires the principal to designate trained
employees who shall be available to respond to an emergency that
may involve the use of an AED during normal operating hours,
which are defined to mean during the hours of classroom
instruction and any school-sponsored activity occurring on
school grounds.
This bill would not change these requirements, which sunset on
January 1, 2013.
6. Opposition
As noted above, CAJPA opposes this measure. The association
argues that the maintenance and testing standards in the bill
may be impracticable, in part because standards may change or
instruction manuals lost by the school. CAJPA also contends
that the bill's requirement that all school employees expected
to administer an AED in an emergency must be trained raises
concerns because there are "no objective limitations or
definitions as to who is 'expected' to be responsible for such
an administration." Staff notes that existing law, as noted
above, requires the principal-when an AED is placed in a
school-to designate trained employees who shall be available to
respond to an emergency that may involve the use of an AED
during normal operating hours. As a result, in schools that
have AEDs, principals should already be making these
determinations.
CAJPA raises concerns that the bill "provides immunity for
emergency care by a school employee using an AED; however, there
is no extension of immunity to the school district. ÝThe bill]
provides immunity to an employee and the school district for use
of an AED 'consistent with the requirements of this section.'
CAJPA is concerned that even minor flaws of training,
maintenance, recordkeeping, an 'unexpected user,' etc. nullifies
SB 63's immunities."
CAJPA also raises concerns that the immunity applies except in
cases of gross negligence (and willful or wanton misconduct,
which CAJPA does not defend). On this point, CAJPA writes,
"Ýw]hile 'gross negligence' is defined as 'an extreme departure
from the ordinary standard of conduct,' there really are no
legal parameters or guidelines to help define what would
constitute 'gross negligence' in this context." Again, staff
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notes that existing law-contained in both Civil Code Section
1714.21 and Health and Safety Code Section 104113-both already
provide that gross negligence is excluded from immunity
protections.
7. Additional amendments
The author has agreed to the following additional amendments:
a. On page 2, line 9, delete "extremely accurate,"
b. On page 2, delete lines 17 and 18
c. On page 3, delete lines 1 and 2
d. On page 3, delete lines 19-22
e. On page 3, line 39, after "faculty," insert "employees,"
Support : California Chapters of the American Red Cross;
California Medical Association; California Professional
Firefighters; California State PTA; Sudden Cardiac Arrest
Association
Opposition : California Association of Joint Powers Authorities
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : See Background
Prior Vote :
Senate Committee on Health (Ayes 8, Noes 1)
Senate Committee on Education (Ayes 10, Noes 0)
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