BILL ANALYSIS Ó
SB 1365
Page 1
Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1365 (Negrete McLeod) - As Amended: April 30, 2012
PROPOSED CONSENT
SENATE VOTE : 37-0
SUBJECT : Emergency Medical Services: LIMITED CIVIL Immunity
KEY ISSUE : SHOULD REGISTERED NURSES, TRAINED IN EMERGENCY
SERVICES, BE INCLUDED IN THE LIST OF EMERGENCY MEDICAL
PROFESSIONALS WHO ARE GRANTED LIMITED CIVIL LIABILITY WHILE
PERFORMING SIMILAR DUTIES IN THE EMS SYSTEM?
SYNOPSIS
Existing law provides limited civil liability (excluding gross
negligence) to firefighters, police officers or other law
enforcement officers, and emergency medical technicians (EMTs)
who render emergency services at the scene of an emergency.
This non-controversial bill, sponsored by the California
Association of Air Medical Services, extends this limited
immunity to registered nurses trained in emergency services.
The bill also provides immunity to all listed professionals
rendering medical services during emergency ground or air
transport. There is no known opposition.
SUMMARY : Extends limited liability provisions to registered
nurses trained in emergency services, and provides immunity to
listed professionals rendering medical services during emergency
ground or air transport. Specifically, this bill :
1)Extends limited liability provisions currently provided to
firefighters, police officers or other law enforcement
officers, and specified EMTs, to registered nurses, as
defined.
2)Extends the limited liability currently provided under Section
1799.106 of the Health and Safety Code for these emergency
service professionals to include the emergency services
rendered during an emergency air or ground ambulance
transport.
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3)Defines "registered nurse" to mean a registered nurse who is
both trained in emergency services and licensed pursuant to
the requirements under the Business & Professions Code.
4)Makes the following legislative findings and declarations:
a) Since the original enactment of Section 1799.106 of the
Health and Safety Code, registered nurses have become more
directly involved in the provision of emergency medical
services as crew members in both air and ground ambulances;
and
b) Registered nurses should be encouraged to provide
emergency medical services in air and ground ambulances in
the same way as firefighters, law enforcement, and EMT-Is
and EMT-Ps.
5)Adds a cross-reference to the Business and Professions Code
Section relating to the limited liability of licensed
registered nurses to this section.
EXISTING LAW :
1)Provides that a person has no duty to come to the aid of
another, but if he or she decides to assist another then he or
she must act with reasonable care. (Artiglio v. Corning Inc.
(1998) 18 Cal.4th 604; Williams v. State of California (1983)
34 Cal.3d 18.)
2)Provides that, in order to encourage citizens to participate
in emergency medical services training programs and to render
emergency medical services to fellow citizens, no person who
has completed a basic cardiopulmonary resuscitation course
which complies with specified standards, and who, in good
faith, renders emergency cardiopulmonary resuscitation at the
scene of an emergency shall be liable for any civil damages as
a result of any acts or omissions by such person rendering the
emergency care, except where his or her conduct constitutes
gross negligence or is provided in exchange for compensation.
(Civil Code Section 1714.2(a)-(b), (e).)
3)Provides that no physician or nurse, who in good faith gives
emergency instructions to an EMT-II or mobile intensive care
paramedic at the scene of an emergency, shall be liable for
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any civil damages as a result of issuing the instructions.
Existing law also provides that no EMT-II or mobile intensive
care paramedic rendering care within the scope of his or her
duties who, in good faith and in a non-negligent manner,
follows the instructions of a physician or nurse shall be
liable for any civil damages as a result of following such
instructions. (Health & Safety Code Section 1799.104.)
4)Provides that, in addition to the above provisions, a
firefighter, police officer or other law enforcement officer,
EMT-1, EMT-II, or EMT-P who renders emergency medical services
at the scene of an emergency shall only be liable in civil
damages for acts or omissions performed in a grossly negligent
manner or acts or omissions not performed in good faith.
(Health & Safety Code Section 1799.106.)
5)Provides that a licensed registered nurse, as specified, who
in good faith renders emergency care at the scene of an
emergency which occurs outside both the place and the course
of that nurse's employment shall not be liable for any civil
damages as the result of acts or omissions by that person in
rendering the emergency car, except where he or she is grossly
negligent. (Bus. & Prof. Code Section 2727.5.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : Under traditional principles of common law, a person
has no duty to come to the aid of another. If, however, a
person does assist another then he or she has a duty to exercise
reasonable care. If the actions of the "good Samaritan" fall
below this standard of care and he or she causes harm, then the
good Samaritan may be held liable. There are certain statutory
exceptions to this rule, however, in which California law
provides for limited liability of various persons providing
emergency services, as specified. (See Health & Safety Code
Secs. 1799.102, 1799.104, 1799.106, and 1799.108; Bus. & Prof.
Code Sec. 2727.5; Civ. Code Sec. 1714.2.) These provisions
largely operate to encourage the provision of emergency services
under specified circumstances where else a person might
otherwise hesitate to do so for fear of liability based on
ordinary negligence. Currently, these good Samaritan laws do
not account for nurses who provide emergency medical services
while on the job like they do for firefighters, police officers
and other law enforcement, or EMTs. (Compare Bus. & Prof. Code
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Sec. 2727.5, Civ. Code Sec. 1714.2 and Health & Safety Code Sec.
1799.104 with Health & Safety Code Sec. 1799.106.)
This bill, sponsored by the California Association of Air
Medical Services, adds registered nurses who are both trained in
emergency medical services and licensed under the Business and
Professions Code to the list of emergency service professionals
(firefighters, police officers or other law enforcement
officers, and specified emergency management technicians (EMTs))
who are subject to limited liability in rendering emergency
medical services under Section 1799.106 of the Health and Safety
Code. The bill also expands the activities for which this
limited liability applies to cover not only emergency services
rendered at the scene of an emergency, but in transportation
from the scene of the emergency to the hospital as well.
Inclusion of specified registered nurses for the purposes of
limited liability . The author states that, when the limited
liability immunity law was written in 1980, nurses were not
typically involved with rendering emergency medical services in
ambulances and on care flights. Now, however, nurses are
routinely used during these emergency transportations. The gap
in immunity for nurses was discovered this past year when two
cases were brought against emergency medical transport nurses.
These cases were settled out of court, but the immunity issue
remained.
This gap arguably is reflected in the limited liability
provisions found in existing law, insofar as Health and Safety
Code Section 1799.104 provides that no physician or nurse, who
in good faith gives emergency instructions to an EMT-II or
mobile intensive care paramedic at the scene of an emergency,
shall be liable for any civil damages as a result of issuing the
instructions. (Health & Safety Code Sec. 1799.104(a), emphasis
added.) In contrast, Health & Safety Code Section 1799.106
provides that a firefighter, police officer or other law
enforcement officer, or specified EMT who renders emergency
medical services at the scene of an emergency shall only be
liable in civil damages for acts or omissions performed in a
grossly negligent manner or acts or omissions not performed in
good faith. (Health & Safety Code Sec. 1799.106, emphasis
added.) Thus, nurses who provided instructions to an EMT
rendering emergency medical services would be subjected to
limited liability, as would the EMT, but a nurse who directly
renders the emergency medical services himself or herself, would
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be subject to ordinary liability.
Limiting the liability exposure of persons rendering emergency
medical services in order to encourage assistance of persons in
emergency situations must be balanced against policy concerns
for the safety of those persons being assisted, and the
availability of a legal recourse if they are further injured by
an inadequately trained professional who arguably should not
have been providing such emergency services.
As such, the author amended the bill to further limit the
immunity provided by that section to registered nurses, so as to
only extend to those registered nurses who are specifically
trained in emergency medical services, in addition to being
licensed under the Business and Professions Code. The current
version of the bill is therefore sufficiently narrow in scope
such that it arguably strikes an appropriate balance between
those policy considerations.
Expanding the immunity to include emergency services rendered
during transportation . This bill also seeks to specify that the
limited immunity of Section 1799.106 of the Health & Safety Code
applies to not only those services provided at the scene of the
emergency by these emergency medical service (EMS)
professionals, but also during transport to the hospital.
According to proponents of this bill, this is a clarification of
the law that is necessary and logical to ensure that the care
and treatment provided during the same continuum of care is
applied the same standard for liability purposes, up and to the
point in which the patient arrives at the hospital and the care
is transferred from the EMS professional to a physician. In
other words, it would be illogical, for example, to apply one
standard at the time that an EMS professional arrives at a scene
to give CPR to a patient in cardiac arrest and leading up to
loading the patient into the ambulance, and yet another from the
point in which they load the patient onto the ambulance, while
continuing to administer CPR, until they turn the patient over
to the physician at the hospital.
ARGUMENTS IN SUPPORT : The California Hospital Association
writes in support that the "bill amends section 1799.106 of the
Health and Safety Code to add registered nurses to the group of
Emergency Medical Service (EMS) workers who are held to the
gross negligence standard for civil liability. The bill also
extends that standard during transport? Registered nurses
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should be encouraged to provide emergency medical services in
air and ground ambulances in the same way as firefighters, law
enforcement, EMTs, and paramedics. SB 1365 would provide them
the same legal parity as their counterparts at the scene of an
emergency and during transport."
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Air Medical Services (sponsor)
LA County District Attorney
California College of Emergency Physicians
California Hospital Association
Civil Justice Association of California
Emergency Nurses Association
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334