BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 724 (Emmerson)
As Amended April 29, 2013
Hearing Date: May 7, 2013
Fiscal: No
Urgency: No
TW
SUBJECT
Liability: Charitable Vision Screenings
DESCRIPTION
This bill would provide qualified immunity from damages or
injury liability to a nonprofit charitable organization,
licensed optometrist, ophthalmologist, or trained volunteer
providing vision screenings or donated or recycled glasses, as
specified.
BACKGROUND
Due to the economic decline over the last several years, it has
become increasingly important for individuals of low income or
without health insurance to have access to medical care
services. Although many individuals may have access to
emergency care services provided through hospitals, there are
few options for these individuals to receive proper eye care
services.
Noncharitable organizations have begun providing volunteer
vision screenings and eyeglass donations to provide individuals,
with no other means to obtain such services, with the gift of
sight. These noncharitable organizations rely on volunteer
optometrists, ophthalmologists, and others, to provide vision
screenings and eyeglass fittings.
Of concern to these nonprofit organizations and volunteers is
liability for negligent treatment of the individuals to whom
vision screening and eyeglass fitting services are provided.
Because of the potential for being held liable for damages to an
(more)
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individual treated by the volunteer, these volunteers are wary
of providing these volunteer services to their communities.
Although four other states, Alaska, Arizona, Oregon, and
Washington currently provide vision screening and eyeglass
fitting volunteers with limited liability from damages,
California has no such protection.
This bill would provide immunity from damage liability to
nonprofit organizations, licensed optometrists,
ophthalmologists, and trained volunteers in order to encourage
these volunteers to provide greater access to vision screenings
and eyeglass fittings for individuals who would otherwise be
unable to afford such services.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, provides that a
person may not be deprived of life, liberty, or property without
due process of law or denied equal protection of the laws.
(Cal. Const., art. I, sec. 7.) The California Constitution also
provides that no citizen, or class of citizen, shall be granted
privileges or immunities which, upon the same terms, shall not
be granted to all citizens. (Cal. Const., art I, sec. 21.)
Existing law provides protection for all Californians from
another person's negligence. (Civ. Code Sec. 1714.)
Existing law states legislative intent to create an environment
in which philanthropy and voluntarism in the health care field
and the vast benefits arising from it for the citizens of
California can be encouraged. (Health & Saf. Code Sec. 101983.)
Existing federal law , the Volunteer Protection Act of 1997,
provides a limitation on liability for volunteers of nonprofit
organizations and governmental entities. (42 U.S.C.S. Sec.
14500 et seq.)
Existing law provides immunity from liability to a director or
executive officer of a nonprofit public benefit corporation for
damages (other than those resulting from reckless or wanton
misconduct or gross or intentional negligence) if the act or
omission was done in good faith and within the scope of duty.
If the damages are not covered by a liability insurance policy,
the volunteer director or executive officer is not liable if it
can be established that all reasonable efforts were made in good
faith to obtain available liability insurance. (Corp. Code Sec.
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5239.) Similar immunities are provided to unpaid directors and
officers of mutual benefit and nonprofit religious corporations.
(Corp. Code Sec. 5047.5.)
This bill would provide a qualified immunity from liability for
any damage or injury, except for injury resulting from gross
negligence or a willful act, on the part of a nonprofit
charitable organization that provides vision screenings and, if
applicable, provides donated or recycled glasses, or a
participating licensed optometrist, ophthalmologist, or trained
volunteer who works with such a nonprofit charitable
organization in the performance of vision screenings, if all of
the following conditions are met:
the vision screening is provided to address ocular health
concerns and, if applicable, to provide a temporary solution
in the form of donated or recycled eyeglasses until the
patient can get a full examination and eyeglasses;
the vision screening is not intended to replace a full ocular
health examination provided by a licensed optometrist or
ophthalmologist;
the patient signs a waiver acknowledging that the services
provided are a temporary solution until the patient can get a
full examination by a licensed optometrist or ophthalmologist;
each vision screening is supervised by an attending licensed
optometrist or ophthalmologist;
the eyeglass prescription determinations and ocular health
recommendations are provided by an attending licensed
optometrist or ophthalmologist;
a written prescription is not provided to the patient;
the eyeglasses provided to the patients are a close or
approximate match, within tolerances allowed by the attending
licensed optometrist or ophthalmologist, to the prescription
determined during the vision screening;
the vision screening and eyeglasses are provided without a
charge;
the optometrist, ophthalmologist, or volunteer is authorized
by the nonprofit organization to provide the vision screening
and eyeglasses on behalf of the nonprofit organization and is
acting within the scope of his or her authorized
responsibilities and the guidelines of the nonprofit
charitable organization when providing the vision screening or
eyeglasses; and
the nonprofit charitable organization provides procedural,
risk management, and quality control training, as applicable,
to the participating optometrist, ophthalmologist, or
volunteer who provides the vision screening or eyeglasses.
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This bill would not provide immunity if an action is brought by
an officer of a state or local government pursuant to state or
local law or if the conduct of the nonprofit charitable
organization, optometrist, ophthalmologist, or volunteer
includes any of the following types of misconduct: (1) a crime
of violence; (2) a hate crime; (3) an act involving a sexual
offense; (4) an act involving misconduct in violation of federal
or state civil rights laws; or (5) an act performed while the
defendant was under the influence of drugs or alcohol.
This bill would define "nonprofit charitable organization" to
mean an organization exempt from federal income tax as an
organization described in Internal Revenue Code Section
501(c)(3).
This bill would define "vision screening" to mean a test or
examination of an individual using a portion of the usual
examination procedures in a comprehensive eye examination and
refraction, that are selected or directed by an attending
licensed optometrist or ophthalmologist, and are within the
guidelines of the nonprofit charitable organization.
COMMENT
1. Stated need for the bill
The author writes:
Current law does not address the criteria for vision
screenings or the distribution of used or recycled eyeglasses.
The Federal Volunteer Protection Act provides immunity from
liability for individuals providing volunteer services for
government or nonprofit entities as long as the volunteer does
not commit an act or omission that constitutes gross
negligence. In general, the Volunteer Protection Act provides
that, if a volunteer meets certain criteria, he or she has a
complete defense to an action and has no liability.
This bill would specify the criteria for immunity to nonprofit
entities for vision screenings and associated distribution of
used or recycled eyeglasses.
2. Qualified immunity for vision screening volunteerism
This bill would provide a qualified immunity from liability for
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a nonprofit charitable organization, licensed optometrist,
ophthalmologist, or trained volunteer, who works with the
nonprofit charitable organization, in the performance of vision
screenings.
Sponsor, the California Lions Friends in Sight, writes: "The
California Lions Friends In Sight (FIS) organization currently
conducts approximately thirty (30) vision screenings per year
which includes helping approximately 8,000 patients. This bill
would provide general guidelines of conducting a vision
screening and would enable [a] licensed optometrist,
ophthalmologist, and assisting trained volunteers to provide
no-cost services to those who cannot afford eye care or
eyeglasses."
This bill is similar to the federal Volunteer Protection Act of
1997 (VPA) (42 U.S.C.S. Sec. 14500 et seq.), which provides a
variety of protections from liability to individuals who
volunteer for nonprofit organizations or government agencies,
principally insulating volunteers from actions for harm caused
by ordinary negligence (i.e., not caused by willful or criminal
conduct, gross negligence, reckless misconduct, or a conscious,
or flagrant indifference to the rights or safety of others).
VPA protection from civil liability does not apply to volunteers
acting outside the scope of their responsibility, volunteers
acting without a required license, certification, or
authorization, or harm caused by a motor vehicle.
This bill would only provide immunity from liability for a
nonprofit organization, licensed optometrist, ophthalmologist,
or trained volunteer if all of the following qualifications are
met:
the vision screening is provided to address ocular health
concerns and, if applicable, to provide a temporary solution
in the form of donated or recycled eyeglasses until the
patient can get a full examination and eyeglasses;
the vision screening is not intended to replace a full ocular
health examination;
the patient signs a waiver acknowledging that the services
provided are a temporary solution until the patient can get a
full examination;
each vision screening is supervised by an attending licensed
optometrist or ophthalmologist;
the eyeglass prescription determinations and ocular health
recommendations are provided by an attending licensed
optometrist or ophthalmologist;
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a written prescription is not provided to the patient;
the eyeglasses provided to the patients are a close or
approximate match, within tolerances allowed by the attending
licensed optometrist or ophthalmologist, to the prescription
determined during the vision screening;
the vision screening and eyeglasses are provided without a
charge;
the optometrist, ophthalmologist, or volunteer is authorized
by the nonprofit organization to provide the vision screening
and eyeglasses on behalf of the nonprofit organization and is
acting within the scope of his or her authorized
responsibilities and the guidelines of the nonprofit
charitable organization; and
the nonprofit charitable organization provides procedural,
risk management, and quality control training, as applicable,
to the participating optometrist, ophthalmologist, or
volunteer who provides the vision screening or eyeglasses
(this provision would define who would be considered a
"trained volunteer" under this bill).
Notably, this bill would not provide immunity from liability if
an action is brought by an officer of a state or local
government pursuant to state or local law or if the conduct of
the nonprofit charitable organization, optometrist,
ophthalmologist, or volunteer includes any of the following
types of misconduct: (1) a crime of violence; (2) a hate crime;
(3) an act involving a sexual offense; (4) an act involving
misconduct in violation of federal or state civil rights laws;
or (5) an act performed while the defendant was under the
influence of drugs or alcohol.
In support, the Civil Justice Association of California (CJAC)
argues that this bill is consistent with federal law, which
recognizes that communities suffer from the withdrawal of
nonprofits and their volunteers due to liability concerns and
that it is in the interest of the country to have liability
reform for volunteers. Further, CJAC notes that the "bill is
narrowly drafted and limits this protection to only those cases
where the screening and provision of eyeglasses (if needed) are
a temporary solution, the screening is supervised by a licensed
optometrist or ophthalmologist, the patient is aware he or she
needs a full examination and the services are provided free of
charge. . . . [This bill] furthers the important policy of
encouraging the provision of charitable, much-needed social
services without fearing costly lawsuits."
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3. Equal protection under the Constitution
The California Constitution provides that a person may not be
deprived of life, liberty, or property without due process of
law or denied equal protection of the laws. (Cal. Const., art.
I, sec. 7.) Further, the California Constitution provides that
no citizen, or class of citizen, shall be granted privileges or
immunities which, upon the same terms, are not granted to all
citizens. (Cal. Const., art I, sec. 21.) Additionally, Civil
Code Sec. 1714 provides protection for all Californians from
another person's negligence.
This bill would limit the ability of an injured person to seek
damages from a nonprofit organization, licensed optometrist,
ophthalmologist, or trained volunteer who provided free vision
screening services or donated eyeglasses, unless there was gross
negligence or a willful act. In this way, a person receiving
these free services would have less protection under the law
than a person who had paid for these services.
Equal protection for individuals who are providing charitable
services has been analyzed by the California Supreme Court. In
Malloy v. Fong (1939) 37 Cal.2d 356 and Silva v. Providence
Hospital (1939) 14 Cal.2d 762, the California Supreme Court
abolished charitable immunity in California on the basis that an
individual who "utilized a charitable institution (primarily
hospitals) could not be realistically said to have consented to
the charity's exemption from liability from negligence, nor
could the state interest in promoting charities be said
rationally to justify the withdrawal of protection from the
charity's beneficiaries. Citing Civil Code section 1714, the
Malloy court observed that it is the general policy in
California to afford protection from negligence to everyone;
moreover, the court emphasized, 'that policy admits of no
exception based upon the objectives, however laudable of the
tort feasor. (37 Cal.2d at p. 366.) As the Silva court
declared: 'it is a principal of law as well as of morals that
men must be just before they are generous." (14 Cal.2d at p.
776.)" (Brown v. Merlo (1973) 8 Cal.3d 855, 870.)
a. Rational basis test
In Brown v. Merlo (1973) 8 Cal.3d 855, the California Supreme
Court, citing recent United States Supreme Court holdings that
"[a] classification 'must be reasonable, not arbitrary, and
must rest upon some ground of difference having a fair and
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substantial relation to the object of the legislation, so that
all persons similarly circumstanced shall be treated alike.
[Citations omitted.] Thus, when a statute provides that one
class shall receive different treatment from another, our
constitutional provisions demand more 'than nondiscriminatory
application with the class . . . [established] . . . . [They]
also [impose] a requirement of some rationality in the nature
of the class singled out.'" (Id. at pp. 862-863.)
Under this bill, people who received vision screening services
and donated eyeglasses would be a classification of
individuals who did not have the same protections against
damage and injury resulting from the negligent conduct of the
nonprofit organization, optometrist, ophthalmologist, or
volunteer. Arguably, the state has multiple rational bases
for providing a qualified immunity for vision screening
volunteerism. First, vision screening services and eyeglasses
typically are not provided by emergency service hospitals
where people of limited means may otherwise go for medical
services. As such, there is a need to provide vision
screening and eyeglasses to individuals who would not
otherwise have access to these services. Second,
philanthropic support for these services should be encouraged
so that these services are available to these individuals.
Third, philanthropy imbues members of the community with a
sense of pride in their volunteerism. Fourth, philanthropy of
this nature pays for necessary expenditures that otherwise
would have to be paid by patients or by the government.
b. Legislative directives
The Brown court further held that "[i]n determining the scope
of the class singled out for special burdens or benefits, a
court cannot confine its view to the terms of the specific
statute under attack, but must judge the enactment's operation
against the background of other legislative, administrative
and judicial directives which govern the legal rights of
similarly situated persons." (Brown v. Merlo, supra, 8 Cal.3d
at p. 862.)
Existing state law provides a legislative directive to create
an environment in which philanthropy and voluntarism in the
health care field and the vast benefits arising from it for
the citizens of California can be encouraged. (Health & Saf.
Code Sec. 101983.) Further, this bill is modeled after a
federal legislative directive - the VPA, which provides
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limitation on liability for nonprofit organization volunteers.
As under the VPA, this bill would provide a qualified
immunity from liability for volunteers who were acting within
the scope of the volunteer's responsibilities in the nonprofit
organization, were properly licensed or authorized by the
appropriate authorities, and the harm was not caused by
willful misconduct or gross negligence. (See 42 U.S.C.S.
Sec. 14503(a).)
In addition to (and authorized by) the provisions under the
VPA, this bill would require the nonprofit organization to
adhere to risk management procedures, including mandatory
training of volunteers. (See 42 U.S.C.S. Sec. 14503(d).)
Further, the immunity would not apply if a civil action was
brought by an officer of a state or local government, nor
would the immunity apply if the volunteer's conduct
constituted a crime of violence, a hate crime, involved a
sexual offense, involved misconduct in violation of federal or
state civil rights laws, or where the volunteer was under the
influence of intoxicating alcohol or any drug at the time of
the misconduct. (See 42 U.S.C.S. Sec. 14503(d)(3), (f).)
In support of this bill, the California Association of
Nonprofits writes:
Charitable organizations play crucial roles in providing
health care assistance, such as vision care, to communities in
need. In particular, volunteer professionals such as
optometrists are essential to the delivery of these services.
[SB 724] strikes the right balance between encouraging
volunteerism and the involvement of charitable organizations
by limiting liability for services performed within
appropriate procedural protocol, and ensuring that people
receiving free vision care are protected from instances of
negligence or misconduct. We feel this is the right balance
to allow nonprofits to serve our communities and to encourage
community members to seek and receive these services.
It is important to note that the Federal Volunteer Protection
Act does grant immunity from liability for individuals
providing volunteer services for government or nonprofit
entities as long as the volunteer does not commit an act or
omission that constitutes gross negligence. However, current
law does not address the criteria used for vision screenings
or the distribution of used or recycled eyeglasses. By
specifying this criteria for immunity, it will help encourage
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licensed optometrists, ophthalmologists, and volunteers to
offer their services at vision screenings thereby increasing
access to care for Californians in need.
4. Other state laws providing liability immunity for vision
screening volunteers
Four other states, Alaska, Arizona, Oregon, and Washington,
currently provide vision screening and eyeglass fitting
volunteers with limited liability from damages.
In Alaska, a nonprofit organization is not liable for
distributing recycled used eyeglasses if: (1) the eyeglasses
are distributed and fitted free of charge and the fitting
conforms, to the extent possible, with a written prescription
from a licensed physician or optometrist; and (2) the
organization obtains informed consent from the person
receiving the eyeglasses and provides the person receiving the
eyeglasses advance written notice of the immunity provided
under this section. (Alaska Stat. Sec. 09.65.305.)
Arizona provides a qualified immunity from damages to a health
professional who, within the professional's scope of practice,
provides previously owned prescription eyeglasses free of
charge through a charitable, nonprofit, or fraternal
organization is not liable for an injury to the recipient if
the recipient or the recipient's parent or legal guardian has
signed a medical malpractice release form and the injury is
not a direct result of the health professional's intentional
misconduct or gross negligence. (Ariz. Rev. Stat. Sec.
12-571.) Legislation has been introduced this year to extend
the immunity to include care or screening services. (See
Ariz. H.B. No. 2407, 51st Leg., 1st Reg. Sess. (2013).)
Oregon provides a qualified immunity to a fraternal
organization that is also a charitable corporation, and any
other charitable corporation that is affiliated with the
fraternal organization, from damages arising out of providing
previously owned eyeglasses to a person if: (1) the person is
at least 14 years of age; and (2) the eyeglasses are provided
to the person without charge. This immunity applies to
eyeglasses only if the eyeglasses are provided by a licensed
optometrist or ophthalmologist who has personally examined the
person who will receive the eyeglasses and issued a
prescription for the eyeglasses or personally consulted with
the licensed optometrist or ophthalmologist who issued the
prescription for the eyeglasses. (Or. Rev. Stats. 30.809.)
Washington provides that a charitable organization is not
liable for any civil damages arising out of any act or
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omission, other than acts or omissions constituting gross
negligence or willful or wanton misconduct, associated with
providing previously owned eyeglasses or hearing instruments
to a person if: (1) the person is at least 14 years of age;
and (2) the eyeglasses or hearing instruments are provided to
the person without compensation or the expectation of
compensation. This immunity from liability applies to
eyeglasses only if the eyeglasses are provided by a licensed
physician, optometrist, optician, or optician's optical
assistant who has personally examined the person who will
receive the eyeglasses or personally consulted with the
licensed physician or optometrist who examined the person who
will receive the eyeglasses. (Rev. Code Wash. Sec. 4.24.800.)
Support : California Association of Nonprofits; Civil Justice
Association of California
Opposition : None Known
HISTORY
Source : California Lions Friends In Sight
Related Pending Legislation : None Known
Prior Legislation : None Known
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