BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 287 (Hueso)
Version: February 19, 2015
Hearing Date: May 12, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Automated external defibrillators (AEDs)
DESCRIPTION
Existing law provides a qualified immunity for a person or
entity that acquires an AED for emergency use if they comply
with certain maintenance, training, and notice requirements and
do not otherwise act with gross negligence or willful or wanton
misconduct. Existing law also requires, if the AED is placed in
a building, the building owner must:
ensure tenants annually receive a brochure, approved as to
content and style by the American Heart Association or
American Red Cross, which describes the proper use of an AED,
and also ensure that similar information is posted next to any
installed AED; and
notify tenants as to the location of AED units in the building
at least once a year.
This bill would require certain structures with occupancy of 200
or more that are not owned or operated by the state or any local
government entity and are constructed on or after January 1,
2016, to have an AED on the premises. The bill would also exempt
single and multi-family dwellings and parking garages. This bill
would require a person or entity that supplies an AED to comply
with specified existing law regarding AEDs, and would exempt a
person or entity that supplies an AED from liability for civil
damages resulting from uses or non-uses of an AED, if the person
or entity complies with existing requirements.
BACKGROUND
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According to the American College of Emergency Physicians (ACEP)
website, if a person suffers a sudden cardiac arrest, chances of
survival decrease by 7 to 10 percent for each minute that passes
without defibrillation. A victim's best chance for survival is
when there is revival within four minutes. Small portable
medical devices called automatic external defibrillators (AEDs)
can be 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. Moreover, audible cues guide the user
through the process. However, AEDs are less successful when the
victim has been in cardiac arrest for more than a few minutes,
especially if cardiopulmonary resuscitation (CPR) is not also
provided.
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. The bill 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
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. Most recently, SB 1436
(Lowenthal, Ch. 71, Stats. 2012) was enacted to delete the
sunset, thereby extending the operation of those provisions
indefinitely.
While California law has generally left the decision of whether
or not to provide an AED in a building up to the building owner,
in 2005, AB 1507 (Pavley, Ch. 431, Stats. 2005) was enacted to
require health studios to acquire, maintain, and train personnel
in the use of AEDs. AB 1507 specifically applied most of
existing law to health studios but made the acquisition of AEDs
mandatory rather than voluntary until July 1, 2012. Then, in
2010, SB 127 (Calderon, Ch. 500, Stats. 2010) was enacted to
extend the health studios' AED mandate indefinitely, but changed
the requirement that trained personnel be available to respond
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to an emergency during normal operating hours to instead require
that they be available during "staffed" operating hours. That
bill also provided that a health studio that allows its members
access to its facilities when employees trained in the use of
AEDs are not present, waives the following: (1) existing law's
exemption from liability for civil damages, as specified; and
(2) the affirmative defense of primary assumption of the risk,
whether express or implied, as to a claim arising out of the
absence of trained staff.
Of note, in December 2008, the San Diego City Council voted
unanimously to require defibrillators in all new buildings with
more than three stories or more than 10,000 square feet; in
places of assembly with capacity for more than 300 people; and
in educational facilities with 200 or more students. That
legislation reportedly "covers practically all new commercial
buildings; medical, dental, and outpatient clinics; hotels;
motels; restaurants; schools; theaters; churches; and
warehouses." The municipal building code requires new buildings
to be prewired during construction for dedicated wall mounts for
AED systems with self-testing alarms, similar to requirements
for installations of sprinkler systems and fire alarms. Also
under that code, building owners are required to register their
AED equipment with the fire rescue department, test it annually,
and notify the fire department each time the device is used.
(Madaffer, For Safety's Sake, Occupational Health & Safety (Feb.
2009)
[as of May 6, 2015]; see also San Diego Municipal Code, Chapter
14, Article 5, Division 39: Automated External Defibrillators,
Secs. 145.3901 - 145.3935,
[as of May 6, 2015].)
This bill would now generally require certain structures with
occupancy of 200 or more that are not owned or operated by the
state or any local government entity and are constructed on or
after January 1, 2016, to have an AED on the premises, as
specified.
CHANGES TO EXISTING LAW
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
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render emergency care, provided that the person or entity has
complied with specified maintenance, training, and notice
requirements of Health and Safety Code Section 1797.196. (Civ.
Code Sec. 1714.21(d).)
Existing law provides, in relevant part, that any person or
entity responsible for the site where the AED is located, is not
liable for any civil damages resulting from any acts or
omissions by the person who uses the AED to render emergency
care provided that the physician, person, or entity has complied
with applicable requirements of Health and Safety Code Section
1797.196. (Civ. Code Sec. 1714.21(e).)
Existing law provides that the qualified immunities described
above do not apply in the case of personal injury or wrongful
death which 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 , Section 1797.196 of the Health and Safety Code,
sets forth various maintenance, training, and notice
requirements that must be met in order for the above statutory
immunity provisions to apply to a person or entity acquiring an
AED. Specifically, existing law provides that any person or
entity that acquires an 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:
1)Complies with all regulations governing the placement of an
AED;
2)Ensures each of the following:
that the AED is maintained and regularly tested
according to the operation and maintenance guidelines set
forth by the manufacturer, 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;
that 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, and records of these checks are
maintained;
that any person who renders emergency care using the AED
activates the emergency medical services (EMS) system as
soon as possible, and reports any use of the AED to the
local EMS agency;
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that for every AED unit acquired up to five units, at
least one employee per unit must complete a training course
in cardiopulmonary resuscitation (CPR) and AED use and
after the first five AED units are acquired, for each
additional five units acquired, one employee is 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; and
that there is a written plan describing the procedures
to be followed in the event of an emergency that may
involve using an AED.
1)Complies with the following, where applicable:
if the AED is placed in a building, building owners must
annually provide tenants with a brochure describing the
proper use of an AED, and also ensure that similar
information is posted next to any installed AED;
if the AED is placed in a building, building owners must
notify tenants as to the location of AED units in the
building at least once a year; and
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. (Health & Saf. Code Sec.
1797.196(b).)
Existing law provides that the above qualified immunities do
not apply in the case of personal injury or wrongful death
which results from the gross negligence or willful or wanton
misconduct of the person who uses the AED to render emergency
care. (Health & Saf. Code Sec. 1797.196(e).)
Existing law additionally requires, if supplying an AED, that
the person or entity must (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(c).)
Existing law specifies that nothing in the above sections
(Health and Safety Code Section 1797.196 or Civil Code Section
1714.21) may be construed to require a building owner or a
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building manager to acquire and install an AED in any
building. (Health & Saf. Code Sec. 1797.196(f).)
This bill would require certain buildings with capacities of
200 persons or greater, as specified, constructed on or after
January 1, 2016, to have an automated external defibrillator
(AED) on the premises, subject to the above requirements of
the Health and Safety Code. Specifically, the bill would
apply to:
assembly buildings with an occupancy of greater than
300;
business buildings with an occupancy of 200 or more;
educational buildings with an occupancy of 200 or more;
factory buildings with an occupancy of 200 or more;
high hazard buildings with an occupancy of 200 or more;
institutional buildings with an occupancy of 200 or
more;
mercantile buildings with an occupancy of 200 or more;
residential buildings with an occupancy of 200 or more,
excluding single-family and multi-family dwelling units;
and
storage buildings with an occupancy of 200 or more,
excluding parking garages.
This bill would exempt a structure owned or operated by the
state or any local government entity.
This bill would provide that a person or entity that supplies
an AED as required shall not be liable for any civil damages
pursuant to the existing law above.
COMMENT
1. Stated need for the bill
As stated by the author:
According to the American Heart Association, brain death and
permanent death start to occur 4-6 minutes after someone
experiences cardiac arrest. Nationally, the average
[e]mergency medical response time is between 8-12 minutes,
which is often too late. By having AED devices in large,
public places, more individuals will be within 4 minutes of
an AED, and will have a significantly higher chance of
surviving.
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This bill would require newly constructed buildings with
occupancy of 200 or more to have an AED device. This exempts
single and multi-family dwellings and parking garages. In
addition, buildings classified as an Assembly building under
the building code will have a 300 person requirement. The
bill exempts public buildings. [ . . . ]
By requiring AED devices in newly constructed buildings with
large occupancies, we can ensure that more individuals will
be within 4 minutes of an AED, substantially increasing their
chance of survival. The City of San Diego has implemented a
similar ordinance, and has supported Project Heartbeat, which
provides AEDs and has saved 123 individuals.
The Sudden Cardiac Arrest Foundation (SCAF) writes in support
that "[a]bout 326,000 people suffer SCA outside hospitals each
year in the U.S. On average, only 10 percent of victims survive.
Yet when bystanders provide CPR and use AEDs before EMS
arrives, survival rates increases to 40 percent." SCAF adds
that given that "AEDs are safe, effective, and designed for use
by laypersons" and "the fact that AEDs are increasingly
affordable, we believe that requiring AEDs to be installed in
newly constructed buildings will certainly support the health
and occupational safety codes in California. By requiring AED
deployment as part of an emergency response plan, we can serve a
more effective and efficient emergency response system in
California commercial properties. "
Also in support, the American Medical Response (AMR) writes that
"[t]he need for this bill could not be clearer. Having AEDs on
site and available for use when someone suffers a Sudden Cardiac
Arrest is proven to help save lives."
2. Bill would expand the availability of AEDs to save lives
while extending existing immunity protections to good actors
who comply with certain safeguards
This bill would require newly constructed buildings built on or
after January 1, 2016, generally with occupancy of 200 or more,
to have an AED on the premises. The bill would also exempt
single and multi-family dwellings and parking garages, as well
as public buildings. In creating a statutory duty for these
newly constructed buildings to provide AEDs on the premises, the
bill would also extend existing qualified immunity provisions to
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a person or entity that supplies an AED pursuant to the bill.
Currently, California law provides a qualified immunity to any
person or entity that acquires an AED for emergency use if they
comply with certain maintenance, training, and notice
requirements and do not otherwise act with gross negligence or
willful or wanton misconduct. Existing law also requires, if
the AED is placed in a building, the building owner must:
ensure tenants annually receive a brochure, approved as to
content and style by the American Heart Association or
American Red Cross, which describes the proper use of an AED,
and also ensure that similar information is posted next to any
installed AED; and
notify tenants as to the location of AED units in the building
at least once a year.
Under this bill, if a person or entity that supplies an AED
complies with those existing requirements, that person or entity
would not be liable for civil damages resulting from uses or
non-uses of an AED absent gross negligence or willful or wanton
misconduct. In other words, consistent with existing law, a
person or entity that acquires an AED and fails to comply with
the statutory maintenance, training, and notice requirements
cannot obtain the protections of limited liability. As a
result, this bill would promote the public policy of protecting
public health and safety, and continue to incentivize persons or
entities that place these AEDs in their buildings to ensure
certain safeguards (that require the AED be successfully placed,
properly maintained, and anticipated users be properly trained)
are met. By requiring placement and compliance with those
safeguards, this bill would arguably increase the likelihood
that an AED will be available, in working order at the time of
an emergency, and that a person is present who is familiar with
the machine and efficiently able to administer proper care,
including CPR.
3. Case law on the liabilities of persons or entities
supplying AEDs under existing law
While there do not appear to be many lawsuits that have arisen
out of the use or non-use of an AED, Committee staff is aware of
two cases regarding AEDs in California. In the first, Rotolo v.
San Jose Sports and Entertainment (2007) 151 Cal.App.4th 307, a
lawsuit was brought by the parents of a 17-year-old who
experienced sudden cardiac arrest and collapsed on the ice while
participating in a hockey tournament game on the south rink at
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Logitech Ice. Two event bystanders, mothers of other
participants in the event, responded to the medical emergency.
One held a nursing degree and was licensed in California; the
other had completed a "First Responder" course and a "Nurse's
Aid" course. While they provided CPR to the teen, 911 was
called to report the incident to the appropriate emergency
responders. As described by the court, sometime prior to this
incident one or more AED's had been acquired and installed at
the Logitech Ice facility. Respondents had placed one AED on
the wall in the area near the penalty box of the south rink
where the teenager had collapsed. As described in that case,
"[r]espondents had not informed the tournament participants, the
coaches, the officials, or the spectators of the existence and
location of the AED's. No one was aware that an AED was
installed and available for use close to the south rink. Neither
one of the referees officiating the game was aware of the AED.
Both [the mothers who performed CPR on Rotolo] had been trained
and certified in the use of AED's. However, no one informed them
that there was an AED nearby." The teenager did not survive.
(Id. at 316-317.)
In that case, the Superior Court ruled in favor of the
defendants, holding that the Legislature had occupied the field
by enacting a number of detailed and comprehensive statutes
governing the acquisition and use of AEDs, which reflected
legislative policy to encourage the availability of AEDs by
providing immunity from liability for those who acquired the
devices, when they were used in an attempt to save a life.
Those who do install AED's in their buildings will not be
liable for damages resulting from the rendering of emergency
care with an AED, so long as certain requirements are met,
including maintenance, testing, posting and notice.
[Citations omitted.] The notice that is required is
specifically limited to tenants of the building where the AED
is located. [Citations omitted.] The only other notice
requirement set forth in these statutes is that the person or
entity that supplies an AED must notify the local emergency
services agency of its location. [Citations omitted.]
Nothing in these statutes requires that a building owner or
manager give notice to particular members of the public
expected to use the building. Furthermore, we believe the
imposition of such duties that are not clearly outlined in the
statutes would tend to discourage, rather than to encourage,
the voluntary acquisition of AED's, and would thus defeat the
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underlying legislative purpose of promoting the widespread use
of these devices. (Id. at 314.)
The court also held that, under the common law, the duty of care
of a landlord (based on the special relationship to tenants and
invitees) had never been extended to impose an affirmative duty
such as the parents sought to impose, to give notice to
prospective invitees of the existence and location of a medical
device. (Id. at 314-315.)
Most recently, in 2014, at the request of the Ninth Circuit, the
California Supreme Court addressed the following certified
question: whether, under California law, the common law duty of
reasonable care that the defendant retailer owed to its business
customers included an obligation to obtain and make available on
its business premises an AED for use in a medical emergency.
Notably, that case, Verdugo v. Target Corporation (2014) 59
Cal.4th 312, overruled Rotolo to the extent that the case, in
dicta, stated broadly that the legislature has occupied the
field by enacting a number of detailed and comprehensive
statutes governing the acquisition and use of AEDs. (Id. at
334.)
In Target, the lawsuit arose after a customer at Target suffered
sudden cardiac arrest and collapsed while shopping at a Target
department store in Pico Rivera, California. In response to a
911 call, paramedics were dispatched from a nearby fire station.
It took the paramedics several minutes to reach the store and a
few additional minutes to reach Verdugo inside the store. The
paramedics attempted to revive Verdugo but were unable to do so;
Verdugo was 49 years of age at the time of her death. Target did
not have an AED in its store. After the incident, the
deceased's mother and brother filed the underlying lawsuit
against Target, maintaining that Target breached the duty of
care that it owed to Verdugo, a business customer, by failing to
have on hand within its department store an AED for use in a
medical emergency.
There, the California Supreme Court held that the existing state
statutes on AEDs cannot properly be interpreted to preclude a
court from determining whether a business's common law duty to
exercise reasonable care with regard to the health and safety of
its customers includes, either in general or in particular
circumstances, an obligation to acquire and make available an
AED for use in a medical emergency. (Id. at 321.) The AED
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statutes, when viewed as a whole, the court held, do not fully
"occupy the field" and thereby implicitly preclude California
courts from determining whether, under California common law, a
retailer's common law duty of reasonable care to its patrons
includes an obligation to acquire and make available an AED for
use in a medical emergency. (Id. at 334.) In light of the
extent of the burden that would be imposed by a requirement to
acquire and make available an AED and in the absence of any
showing of heightened foreseeability of sudden cardiac arrest or
of an increased risk of death, the Supreme Court held it was
appropriate under these circumstances to leave to the
legislature the policy decision whether a business should be
required to acquire and make available an AED for the protection
of its patrons. (Id. at 341.)
This bill would appear to make that very policy decision, while
still providing some limited liability protections for persons
or entities placing these AEDs in their buildings, as long as
they comply with the maintenance, training, and notice
safeguards of existing law and do not act with gross negligence
or willful or wanton misconduct.
4. Opposition concerns
A coalition of the California Business Properties Association,
Building Owners and Managers Association of California,
Commercial Real Estate Development Association, NAIOP of
California, and International Council of Shopping Centers writes
in opposition stating that the better approach to increasing the
availability of AEDs is to reform the "outdated" training,
maintenance and notice requirements under existing law-which SB
658 (Hill, 2015), also set for hearing in this Committee-would
do.
The opposition believes that these outdated statutes have become
barriers to installation and that "mandating installation of
AEDs while ignoring this reform will put property owners and
tenants in an untenable position where they may be forced to
install a device but physically cannot comply with the training
requirements required by statute." Opponents also assert that
the building code has traditionally applied equally to all
structures based on occupancy, regardless of ownership-whereas
this bill exempts public buildings.
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Support : American Medical Response; California Professional
Firefighters; California State Firefighters' Association;
Paramedics Plus; San Diego City Fire Fighters Local 145; San
Ysidro Health Center; and Sudden Cardiac Arrest Foundation
Opposition : California Business Properties Association;
Building Owners and Managers Association of California;
Commercial Real Estate Development Association, NAIOP of
California; and International Council of Shopping Centers
HISTORY
Source : Author
Related Pending Legislation : SB 658 (Hill) would expand the
existing AED immunity provisions by removing as a condition of
immunity, the requirement that a person or entity acquiring AEDs
comply with specified maintenance, training, and notice
requirements. SB 658 would separately require that a person or
entity acquiring an AED need only meet certain minimal
maintenance and notice requirements, and would repeal training
requirements from existing law. This bill is also set for
hearing in this Committee on May 12, 2015.
Prior Legislation :
SB 1436 (Lowenthal, Ch. 71, Stats. 2012) See Background.
SB 1281 (Padilla, 2010) See Background.
SB 127 (Calderon, Ch. 500, Stats. 2010) See Background.
AB 2083 (Vargas, Ch. 85, Stats. 2006) See Background.
AB 2041 (Vargas, Ch. 718, Stats. 2002) See Background.
SB 911 (Figueroa, Ch. 163 Stats. 1999) See Background.
Prior Vote : Senate Health Committee (Ayes 9, Noes 0)
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