BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 633 (Salas)
As Amended June 20, 2013
Hearing Date: July 2, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Emergency medical services: civil liability
DESCRIPTION
This bill would prohibit an employer from adopting or enforcing
a policy prohibiting an employee from voluntarily providing
emergency medical services (EMS), including CPR, except when a
person has a do-not-resuscitate order, as specified. This bill
would also allow an employer to adopt a policy authorizing
trained employees to provide EMS, and prohibiting non-trained
employees from providing EMS if the trained employee was
immediately available during an emergency.
This bill would extend immunity to an employee who renders
emergency care voluntarily despite providing those services
during the performance of activities for which he or she is
compensated, and exempt employers from liability if an employee
voluntarily provides emergency care.
BACKGROUND
Under traditional principles of common law, a person has no duty
to come to the aid of another. However, if 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, the good Samaritan may be
held liable. That common law rule is generally codified in
Health & Safety Code Section 1799.102 which provides that no
person who, in good faith and not for compensation, renders
emergency care at the scene of an emergency is liable for civil
damages resulting from any act or omission.
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AB 633 (Salas)
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This bill seeks to respond to an incident in Bakersfield earlier
this year, in which an 87-year-old woman died following cardiac
arrest. A seven-minute 911 call revealed that a staff member of
the independent living center where the woman was a resident
declined requests from the 911 operator to perform CPR, or to
find someone else to perform CPR. Initially, the owner of the
independent living center said that the staff member was
following company policy by waiting for first responders rather
than administering medical care herself. However, the company
later released a statement asserting that "the incident resulted
from a complete misunderstanding of our practice with regard to
emergency medical care for our residents."
Accordingly, this bill seeks to ensure that employers will not
adopt or enforce a policy that prohibits employees from
voluntarily providing emergency medical services in response to
a medical emergency.
CHANGES TO EXISTING LAW
Existing law 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.)
Existing law provides that no person who in good faith, and not
for compensation, renders emergency care at the scene of an
emergency shall be liable for any civil damages resulting from
any act or omission. Existing law also provides that the scene
of an emergency shall not include emergency departments and
other places where medical care is usually offered. (Health &
Saf. Code Sec. 1799.102.)
Existing law defines "willful or wanton misconduct" as "conduct
by a person who may have no intent to cause harm, but who
intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm
will result." (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d
863; City of Santa Barbara v. Superior Court, supra, 41 Cal.4th
747.)
Existing law defines "gross negligence" as an "exercise of so
slight a degree of care as to justify the belief there was
indifference to the interest and welfare of others." (46 Cal.
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Jur. 3d Negligence 100.)
This bill would prohibit an employer from adopting or enforcing
a policy prohibiting an employee from voluntarily providing
emergency medical services(EMS), including, but not limited to,
cardiopulmonary resuscitation, in response to a medical
emergency.
This bill would authorize an employer to adopt and enforce a
policy authorizing employees trained in EMS to provide those
services first during a medical emergency, and prohibit other
employees from providing those services, unless the trained
employee is not immediately available or otherwise unwilling to
perform EMS.
This bill would authorize an employer to adopt and enforce a
policy prohibiting an employee from performing EMS on a person
who has expressed the desire to forego resuscitation or other
medical interventions through any legally recognized means,
including, but not limited to, a do-not-resuscitate order, a
Physical Orders for Life Sustaining Treatment form, an advanced
health care directive, or a legally recognized healthcare
decision-maker.
This bill would provide that provisions of existing law
providing immunity from liability to persons who, in good faith
and not for compensation, render EMS at the scene of an
emergency, apply to employees who voluntarily provide EMS
despite providing those services during the performance of
activities for which he or she is compensated.
This bill would exempt an employer from liability for any civil
damages or criminal or administrative discipline resulting from
an act or omission of an employee who voluntarily provides EMS.
This bill would exempt an employer from liability for any civil
damages or criminal or administrative discipline or penalties
resulting from an employee's violation of an employer's policy
adopted pursuant to this bill that authorize trained employees
to provide EMS and prohibit other employees from providing those
services if a trained employee is available.
COMMENT
1.Stated need for the bill
AB 633 (Salas)
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According to the author:
This measure seeks to ensure that employers not adopt or
enforce any policies that prohibit an employee from
voluntarily providing emergency medical services in response
to medical emergency. Currently, it is unclear whether such
policies exist; however, employees might not provide emergency
services out of fear that such policies might exist, which can
lead to discipline or termination.
AB 633 protects employees who choose to save a life without
fear of losing their job. This legislation closes a loophole
and provides clarity in the law to protect individuals who
choose to help someone in emergency situations.
2.Protection for good Samaritans
Existing law provides that no person who in good faith, and not
for compensation, renders emergency medical or nonmedical care
or assistance at the scene of an emergency shall be liable for
civil damages resulting from any act or omission other than an
act or omission constituting gross negligence or willful or
wanton misconduct. Good Samaritan laws exist to encourage
people to aid others in need by granting statutory immunity from
civil damages and removing the fear of liability. These statutes
seek to inspire people, who owe no duty to aid their fellow
citizens, to do so anyway.
The author asserts that CPR improves the chance of survival
following cardiac arrest. According to the American Heart
Association, there are approximately 360,000 out-of-hospital
cardiac arrests in the United States each year, accounting for
15 percent of all deaths. On average, bystander CPR is provided
in only approximately one in four of all out-of-hospital events
in the United States despite public education campaigns and
promotion of CPR as a best practice.
This bill seeks to encourage bystander aid and assistance in
medical emergencies occurring in the workplace by prohibiting
employers from adopting a policy prohibiting employees from
acting as good Samaritans. Other provisions of existing law
similarly provide for qualified immunity protections. For
example, architects and engineering volunteers who voluntarily
and without compensation provide structural inspection services
at the scene of an emergency at the request of a public official
are not liable for any injury caused by their good faith
AB 633 (Salas)
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inspection of a structure, as specified. (Bus. & Prof. Code
Secs. 5536.27, 6706.) Similarly, nurses, vocational nurses, and
physician assistants who in good faith render emergency care at
the scene of an emergency which occurs outside the place and
course of their employment are not liable for civil damages as
the result of acts or omissions in rendering that care. No
immunity exists, however, if they act with gross negligence.
(Bus. & Prof. Code Secs. 2727.5, 2861.5, 3503.5.)
This bill would ensure that good Samaritans are free to
volunteer EMS even while at work. In support of this bill, the
California Rescue Paramedic Association writes, "a well-meaning
and trained bystander is an essential component of the chain of
survival in critical situations such as sudden cardiac arrest,
severe allergic reactions, and uncontrolled bleeding from a
significant wound. While professional responders are well
trained and experienced in handling these crises, it takes time
for them to respond to the scene. Every second counts in cases
of cardiac arrest. We depend upon bystanders to implement the
basics of emergency care to buy time for professional rescuers
to arrive."
3.Do not resuscitate orders
This bill would authorize an employer to adopt and enforce a
policy prohibiting an employee from performing EMS, including
CPR, on a person who has expressed the desire to forego
resuscitation or other medical interventions through any legally
recognized means, including specified legal forms. Under
existing law, there are three types of instruments generally
used by patients to communicate the desire to forego
resuscitation: the Emergency Medical Services Authority
(EMSA)/California Medical Association Pre-hospital Do Not
Resuscitate (DNR) Form; the Physician Orders for Life Sustaining
Treatment Form; and a standard DNR medallion or bracelet
attached to the patient. In addition to those three
instruments, local EMS agencies may also approve other
documents, including but not limited to a physician's order in a
patient's chart or Advanced Health Care Directives.
According to the California EMSA, patients have broad authority
to refuse resuscitation. All local emergency medical services
agencies are required to have a policy that recognizes and
accommodates a patient's wish to limit treatment, which applies
to patients in long-term care facilities, during transport
between facilities, and in patient's homes. Accordingly,
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allowing employers to have a policy prohibiting employees from
providing EMS to patients who have indicated a desire to forgo
such services is consistent with existing California public
policy. In addition, staff notes that as drafted, this
provision arguably encompasses any type of instrument an
individual could use to communicate that desire, and is
therefore appropriately broad in scope.
4.Liability for employers
This bill would create a variety of immunities: (1) an immunity
for employees who provide EMS, as specified; (2) an immunity for
an employer resulting from an act or omission of an employee who
voluntarily provides EMS; and (3) immunity for an employer
resulting from an employee's violation of an employer's policy
requiring a trained employee to be a first responder in an
emergency situation.
The above immunities were added to the bill in the Senate, after
the bill left the Assembly. Since their inclusion, the Consumer
Attorneys of California(CAOC) have expressed concerns that:
CAOC had worked with the author's office on amendments in the
Assembly and was neutral on the version that passed the
Assembly. The earlier version struck the correct
balance-unfortunately; we do oppose the new provisions as the
immunity is overbroad and respectfully request that the
amendments negotiated in good faith in the Assembly be amended
back into AB 633.
In addition, other stakeholders have expressed concern that a
new addition to the bill, which would allow an employer to adopt
a policy prohibiting employees not specifically trained in EMS
from providing those services if a trained employee is
immediately available, is potentially confusing. Accordingly,
the following amendments would eliminate the immunity provisions
and clarify what policies an employer may adopt. The author and
stakeholders have agreed to continue working on the issue of
employer liability as this bill moves through the legislative
process.
Author's amendments:
1. On page 2, line 10, strike: "and prohibiting other
employees"
AB 633 (Salas)
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2. On page 2, strike lines 11-13 inclusive
3. On page 2, line 14, strike: "emergency"
4. On page 3, strike lines 12-25 inclusive.
AB 633 (Salas)
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Support : American College of Emergency Physicians; California
Advocates for Nursing Home Reform; California Assisted Living
Association; California Fire Chiefs Association; California
Medical Association; California Professional Firefighters;
California Rescue Paramedic Association; Civil Justice
Association of California; Clinica Sierra Vista; Hall Ambulance
Service Incorporated
Opposition : Consumer Attorneys of California
HISTORY
Source : Author
Related Pending Legislation : AB 259 (Logue) would make it a
misdemeanor for a long-term health care facility, as specified,
to have a policy that prohibits any employee from administering
cardiopulmonary resuscitation (CPR) with an exception for
individuals with a "do-not-resuscitate" form. This bill is
currently in the Senate Health Committee.
Prior Legislation :
AB 83 (Feuer, Chapter 77, Statutes of 2009) extended the good
Samaritan immunity to those persons who offered nonmedical care
or assistance at the scene of an emergency.
AB 90 (Adams, 2009) would have revised Health and Safety Code
Section 1799.102 to provide for immunity from liability for any
person who, in good faith and without compensation, renders
emergency medical or nonmedical care at the scene of an
emergency. This bill died in the Assembly Judiciary Committee.
SB 39 (Benoit, 2009) would have revised existing immunity
protections for disaster service workers who perform disaster
services during a state of emergency. This bill died on the
Senate Inactive File.
Prior Vote :
Senate Committee on Health (Ayes 8, Noes 0)
Assembly Floor (Ayes 67, Noes 1)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Labor and Employment Committee (Ayes 7, Noes 0)
AB 633 (Salas)
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