BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 658 (Hill)
          Version: April 27, 2015
          Hearing Date:  May 12, 2015
          Fiscal: No
          Urgency: No
          RD   
                    

                                        SUBJECT
                                           
                          Automated external defibrillators

                                      DESCRIPTION  

          Under existing law, a person or entity that acquires an  
          automated external defibrillator (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 as long  
          as the person or entity has complied with specified maintenance,  
          training, and notice requirements.  

          This bill would expand the existing 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.  This bill 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.  

                                      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.  The bill also  
          provided qualified immunity from liability for building owners  








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          who installed AEDs as long as they ensured that expected AED  
          users completed a training course.  AB 2041 (Vargas, Ch. 718,  
          Stats. 2002) expanded this immunity by repealing the training  
          requirements for good faith users and also relaxing the  
          requirement that building owners must ensure that expected 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).  Most recently, SB 1436 (Lowenthal, Ch. 71, Stats. 2012)  
          was enacted to delete the sunset, thereby extending the  
          operation of those provisions indefinitely. 

          This bill would further expand the immunity for those who  
          acquire an AED, and as a result, the statute would no longer  
          condition immunity upon satisfying any maintenance, training, or  
          notice requirements. This bill is similar to SB 1281 (Padilla,  
          2010), which also sought to expand the immunity provision under  
          existing law.  That bill failed passage in this Committee.

                                CHANGES TO EXISTING LAW
           
           1.Existing law  provides for immunity from liability for any  
            person who, in good faith and not for compensation (i.e. a  
            "Good Samaritan" layperson), 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 specified maintenance, training, and notice  
            requirements of Health and Safety Code Section 1797.196. (Civ.  
            Code Sec. 1714.21(d).)

           Existing law  provides that a physician who is involved with the  
            placement of an AED and 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).)










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           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  provides that nothing in the above section shall  
            relieve a manufacturer, designer, developer, distributor,  
            installer, or supplier of an AED or defibrillator of any  
            liability under any applicable statute or rule of law.  (Civ.  
            Code Sec. 1714.21(g).)
           
              This bill  would expand the statutory immunity given to persons  
            or entities that acquire an AED for emergency use by removing  
            training, maintenance, and notification provisions as  
            pre-conditions to obtaining that immunity. 

             This bill  would provide, instead, that a physician and surgeon  
            or other health care professional that is involved in the  
            selection, placement, or installation of an AED pursuant to  
            Section 1797.196 of the Health and Safety Code (as modified by  
            the bill to relax and repeal various maintenance, training,  
            and notice requirements) is not liable for civil damages  
            resulting from the acts or omissions in rendering of emergency  
            care by use of that AED.  

           2.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  









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                 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;
                     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).)










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             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  
            building manager to acquire and install an AED in any  
            building.  (Health & Saf. Code Sec. 1797.196(f).)

             This bill  would repeal the provision reiterating that the  
            qualified immunities 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.  

             This bill  would no longer condition immunity on compliance  
            with the maintenance, training, and notice requirements, and  
            would substantially reduce the maintenance, training, and  
            notice requirements, as follows: 
             1)   Require that a person or entity that acquires an AED to:
                     comply with all regulations governing the placement  
                 of an AED; 
                     notify an agent of the local EMS agency of the  
                 existence, location, and type of AED acquired; 
                     ensure that the AED is maintained and tested  
                 according to the operation and maintenance guidelines set  
                 forth by the manufacturer only; and
                     ensure that the AED is tested at least annually and  
                 after each use.
             1)   Require that a building owner comply with the following  
               if the AED is placed in a building:
                     at least once a year notify the tenants as to the  
                 location of the AED units and provide information to  
                 tenants about who they can contact if they want to  
                 voluntarily take AED or CPR training; and
                     post instructions, in no less than 14-point type,  
                 from the manufacturer on how to use the AED, next to the  
                 AED. 
             1)   Specify that a medical director or other physician and  
               surgeon is not required to be involved in the acquisition  









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               or placement of an AED.

            This bill  would also repeal various requirements, including:
                 that records be maintained of mandated checks; 
                 that a person who renders emergency care or treatment on  
               a person in cardiac arrest by using an AED activate the EMS  
               system as soon as possible, and reports any use of the AED  
               to the local EMS agency;
                 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 be a written plan describing the procedures  
               to be followed in the event of an emergency that may  
               involve using an AED.

             This bill  would clarify that the existing requirement for a  
            principal of a public or private K-12 school that has an AED  
            available at the school to designate trained employees who  
            must be available to respond to an emergency that may involve  
            the use of an AED during normal operating hours, does not  
            prohibit a school employee or other person from rendering aid  
            with an AED. 

             This bill  would require a manufacturer or retailer supplying  
            an AED to provide to the acquirer of the AED all information  
            governing the use, installation, operation, training and  
            maintenance of the AED. 

             This bill  would also define the term "local EMS agency" and  
            would exempt from the proposed maintenance and notice  
            requirements general acute care hospitals, acute psychiatric  
            hospitals, skilled nursing facilities, and special hospitals. 

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author:









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            AEDs are not being installed in buildings as much as they  
            could be because building owners are concerned about their  
            ability to comply with outdated requirements in current law  
            that must be met in order for the building owner to be exempt  
            from liability.  These requirements were created by the  
            [L]egislature in 1999 when AEDs were an emerging technology  
            and not as user friendly. [ . . . ]

            [This bill] [i]ncreases the likelihood that Automated External  
            Defibrillators (AEDs) will be installed in buildings  
            throughout the state by reducing outdated requirements imposed  
            on building owners who voluntarily install AEDs.  More AEDs  
            installed in buildings throughout the state means that more  
            lives will likely be saved from those suffering sudden cardiac  
            arrest. 

            SB 658 amends existing law in order to conform the  
            requirements that must be met to be exempt from liability for  
            use of an AED to the latest technological and practical  
            aspects of AEDs and their use.  The appropriate requirements  
            are: 
                 Compliance with all regulations governing placement of  
               an AED.
                 Annual testing and maintenance of AED.
                 Notification of local EMS agency about location of AED.
               o      This is important because while the ambulance is on  
                 its way, the 911 dispatcher can let the Good Samaritan  
                 know if there's an AED near bye.  

          In support, the American Heart Association adds that "[c]ardiac  
          arrest can happen to anyone at any time.  Every year there are  
          almost 424,000 out-of-hospital cardiac arrests in the United  
          States, and of this figure an estimated 10,200 out-of-hospital  
          cardiac arrests happen to children.  Sadly, only 10 percent of  
          victims who suffer a cardiac arrest outside of a hospital  
          setting survive, largely in part because many victims do not  
          receive timely CPR or AED application.  Unfortunately,  
          businesses and institutions are not voluntarily installing AEDs  
          because current law mandates numerous requirements relating to  
          training, maintenance, and reporting in order to qualify for  
          liability exemption.  [ . . . ] While the AHA believes that  
          requirements in current law are important, we know that sudden  
          cardiac arrest is 100 percent fatal if not treated quickly.  For  









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          every minute without CPR and defibrillation, the chance of  
          survival decreases by 7 to 10 percent."

          Also in support, a coalition of the California Business  
          Properties Association, the Building Owners and Managers  
          Association of California, the Commercial Real Estate  
          Development Association, NAIOP of California, and the  
          International Council of Shopping Centers writes that: 

            Existing law provides for rigorous standards for training in  
            the use of AEDs, regular testing of equipment and liability  
            for businesses that make them readily available. These  
            provisions, may have made sense over a decade ago, but due to  
            evolving technology and ease of AED use, have since become an  
            anachronism and are an impediment to installation. SB 658  
            updates the statute to recognize the fact that AEDs have  
            proven to be safe and reliable. 

            Because of the life-saving potential of AEDs and their proven  
            efficacy, the state should encourage accessibility in public  
            places where cardiac arrest may be a significant risk. SB 658  
            maintains appropriate liability where wrongful death resulting  
            from negligence or misconduct occurs and does not excuse  
            producers of AED equipment from their duty to produce and  
            distribute safe, life-saving equipment.

          2.   Opposition concerns
           
          Existing law provides limited protection from civil liability  
          for persons or entities acquiring AEDs for emergency use in  
          order to incentivize the acquisition and use of AEDs to save a  
          person's life when in cardiac arrest.  At the same time,  
          however, to reduce the chance of harm arising to individuals and  
          to ensure the AEDs effectiveness in saving lives, that statutory  
          immunity is conditioned upon compliance with certain safeguards  
          that require the AED be successfully placed, anticipated users  
          to be trained, and that the AED receives proper maintenance.  In  
          other words, 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.  
          This bill would not only relax and repeal many of those  
          safeguards-including removing all training requirements-it would  
          also remove the requirement that these safeguards be complied  
          with as a condition of receiving statutory immunity.  Thus, any  









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          person or entity acquiring an AED who fails to meet the reduced  
          safeguards of this bill would still be able to avail themselves  
          of liability protections. 

          The Consumer Attorneys of California (CAOC), in opposition,  
          write that while they support efforts to incentivize the  
          acquisition and use of AEDs, they "oppose removing essential  
          training and maintenance protections.  CAOC argues that these  
          provisions provide "important safeguards [ . . . ] that ensure  
          safe and effective use of an automatic external defibrillator  
          (AED) on a person who suffers cardiac arrest.  [ . . . ]   
          Keeping these safeguards intact is necessary to ensure that AEDs  
          can be as effective as possible in the event of sudden cardiac  
          arrest; merely placing an AED in a place of business without the  
          proper maintenance and training would provide a false sense of  
          security."

          CAOC writes that a Center for Disease Control and Prevention  
          (CDC) report affirmed the need for training in relation to AEDs,  
          and, after studying public access defibrillation (PAD) programs  
          across the country, concluded that:

            PAD programs in many states are at risk of failure because  
            critical elements such as maintenance, medical oversight,  
            emergency medical service notification, and continuous quality  
            improvement are not required. Policy makers should consider  
            strengthening PAD policies by enacting laws that can reduce  
            the time from collapse to shock, such as requiring the  
            strategic placement of AEDs in high-risk locations or  
            mandatory PAD registries that are coordinated with local EMS  
            and dispatch centers.  (Emphasis in letter.)

          Whereas that report recommended strengthening PAD programs, this  
          bill would arguably take the opposite approach.  Of particular  
          concern to the Rescue Training Institute, Inc., also in  
          opposition, is the bill's removal of the monthly inspection  
          requirement, removal of the training requirement, removal of a  
          licensed physician's oversight, and placing the responsibility  
          for notification to the EMS authority upon the end-user as  
          opposed to the physician (which the Rescue Training Institute  
          believes will result in there being no accountability for the  
          transmission of the information).  

          The President of the Rescue Training Institute, a retired Fire  









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          Captain and Paramedic, writes that as a former paramedic, he  
          "saw too many times an AED next to a patient under CPR, but the  
          AED was never applied and the patient never defibrillated prior  
          to our arrival. Training is one of the key components to saving  
          those who suffer sudden cardiac arrest."  The Rescue Training  
          Institute expresses concern about removing oversight by a  
          licensed physician, because "[w]ithout accountability, by  
          experience we find almost all AED programs will have essentially  
          no upkeep or maintenance."  With regard to the bill's removal of  
          the monthly inspection requirement, the Rescue Training  
          Institute argues that "all EMS and Fire personnel will check  
          their defibrillator at the beginning of each shift.  Requiring  
          only annual testing or maintenance according to the manufacturer  
          guidelines truly puts public safety at risk.  Some  
          manufacturers['] users manuals recommend a daily, monthly, after  
          use and/or annual maintenance inspection.  However, others state  
          'frequently', 'as necessary', and preform 'regular maintenance  
          checks'.  This lack of a consistent maintenance schedule opens  
          up an end-users interpretation as to the frequency of the  
          inspections.  [I]t is not uncommon to hear of an AED that could  
          not perform as designed because of a lack of maintenance." 

          CAOC adds that "[m]aintaining an AED is easy to do and will  
          [e]nsure that if the unit is needed it will be ready to go.   
          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 ensures all of the following: (1) the AED is  
          maintained and regularly tested; (2) 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] (3) records of  
               these checks must be maintained.  SB 658 deletes these  
          requirements and would only require a yearly check of the AED  
          [and a check after each use].  The most common cause for an AED  
          malfunctioning is a dead battery.  Existing law ensures that an  
          AED is checked monthly to ensure that problems like a faulty  
          battery can be caught early and remedied."  

          Thus, the public policy question raised by this bill is whether  
          it is appropriate to significantly reduce and otherwise remove  
          these safeguards which incentivize responsible persons, building  
          owners, and businesses that install AEDs to provide AED training  
          to some of their tenants and employees during operating hours;  
          to maintain AEDs on their premises in accordance with standards  









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          such as those recognized by the American Heart Association and  
          the EMS authority; and to notify the local EMS authority of its  
          existence, location, and type.  

           1.Training requirements 
           
          This bill would repeal existing law's requirements that  
          acquirers of AEDs train their employees, as specified, maintain  
          the AED, and notify the local EMS authority in order to claim  
          immunity from liability.  Under existing law, a person or entity  
          that acquires an AED for emergency use has a qualified immunity  
          provided that the person or entity ensures training for at least  
          one employee per unit for the first five units and one for each  
          five units thereafter.  This bill would repeal this training  
          requirement and instead provide immunity from liability to the  
          person or entity that acquired the AED, as long as the person or  
          entity has not acted with gross negligence or willful or wanton  
          misconduct. 
          In the past, the American Heart Association (AHA) and other  
          proponents of this bill have emphasized the importance of  
          training.  For example, in its "AED Programs Q & A," (AHA, AED  
          Programs Q&A (Sept. 8, 2014)  
           [as of May 3, 2015]), the AHA writes: 

            Why should people who are responsible for operating an AED  
            receive CPR training?
            Early CPR is an integral part of providing lifesaving aid to  
            people suffering sudden cardiac arrest. CPR helps to circulate  
            oxygen-rich blood to the brain. After the AED is attached and  
            delivers a shock, the typical AED will prompt the operator to  
            continue CPR while the device continues to analyze the victim.

            If AEDs are so easy to use, why do people need formal training  
            in how to use them?
            An AED operator must know how 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.   [ . . . ]










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            What steps should an organization take to buy an AED for its  
            premises?
            Any person or entity wanting to buy an AED may first need to  
            get a prescription from a physician. The AED should be placed  
            for use within an AED program that includes these elements:
             Training of all users in CPR and operation of an AED (this  
            can be achieved through the AHA's Heartsaver AED Course). 
             Physician oversight to ensure appropriate maintenance and  
            use of the AED. 
             Notifying local EMS of the type and location of AED(s).  

          While the American Red Cross supports this bill because it would  
          "simplify compliance" and "remov[e] the more cumbersome  
          conditions required for exemption [from] civil liability"  
          leading more individuals and business to acquire AEDs, the  
          organization has similarly recognized the importance of training  
          requirements when it opposed legislation that sought to relax  
          training requirements for the Good Samaritan rescuer, stating  
          that: 

            While we applaud your effort to increase access to these  
            life-saving devices, we believe some training is necessary to  
            use them safely.  Operating AEDs is designed to be very  
            simple, but there are a number of considerations arising from  
            their use that are not covered by the voice and visual prompts  
            generated by the devices.             
                                            
            These considerations are, however, covered under training  
            programs required under current law.  Additionally, AEDs are  
            not intended to be the sole modality when treating a cardiac  
            emergency.  CPR is a vital link to a victim's survival, and  
            accordingly, the American Red Cross combines AED and CPR  
            training in the same program.

            At the very least, those responsible for the AED device and  
            those required to respond to emergencies should be trained to  
            use these devices.

          (Sen. Judiciary Com. analysis of AB 2401 (2001-2002 Reg.  
          Session) p. 6 (emphasis added).)  

          First, it is unclear that public policy supports applying a  
          lesser standard than what organizations such as the AHA  
          recommend for any AED user when codifying the type of conduct  









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          that should be subject to qualified immunity.  Second, it is  
          unclear whether the voice and visual prompts generated by all  
          modern AED devices now cover all considerations that might  
          possibly affect the safe and effective usage of these machines.   
          Nonetheless, insofar as training, including CPR training, would  
          help increase the likelihood that anticipated users of AEDs who  
          are present are adequately prepared to quickly and effectively  
          administer an AED to save a person's life, it would arguably be  
          preferable public policy to continue to incentivize persons or  
          entities acquiring AEDs to comply with appropriate training  
          requirements so as to obtain the benefits of limited liability.   
          Indeed, since AED usage should be accompanied by the trained  
          administration of CPR, it is not clear what public policy is  
          promoted by encouraging the placement of AEDs in buildings  
          without requiring the availability of trained personnel to  
          monitor and maximize its use.  While the author asserts that  
          this bill would conform existing law requirements to current AED  
          technology, the appropriate public policy would arguably be to  
          conform to the standards recognized by health authorities, such  
          as the EMS authority, American Red Cross, and AHA-each of which  
          recognize the benefits of training, including CPR training.  

          As stated by CAOC in opposition to the bill, "[t]here is no  
          doubt that AEDs can save lives.  However, the safeguards  
          provided in current law ensure that placement of an AED is  
          effective.  Without these safeguards, the ability to properly  
          respond to an emergency diminishes if an employee trained to  
          respond is not available, or if the unit has not been properly  
          maintained and fails to function.  This creates a false sense of  
          security, and in the event of sudden cardiac arrest, there is  
          not much time for mistakes and ill-preparedness."       

           2.Maintenance requirements
             
          In addition to repealing the training requirements of existing  
          law that currently serve as a condition to receiving immunity,  
          this bill significantly relaxes the maintenance requirements  
          that must be met when a person or entity acquires an AED and  
          wishes to obtain limited liability protection.  Under existing  
          law, a person or entity that acquires an AED for emergency use  
          has a qualified immunity provided that the person or entity  
          ensures that the AED is maintained and regularly tested pursuant  
          to specified standards and regulations (including those of the  
          manufacturer, as well as those of the AHA or American Red  









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          Cross), and checked for readiness after every use or at least  
          once every 30 days if it has not been used.  Existing law also  
          requires that records be kept of these mandated checks, in order  
          for limited liability to apply.  This bill would instead simply  
          require that the AED be checked once a year and after each year,  
          and be maintained pursuant to the manufacturer's standards, and  
          would remove any record keeping requirements.  Furthermore,  
          under this bill, even if the person or entity that acquired the  
          AED fails to meet these substantially relaxed requirements, the  
          statutory immunity provisions would apply unless the person or  
          entity acted with gross negligence or willful or wanton  
          misconduct.  

          Ultimately, both this bill and existing law seek to encourage  
          the acquisition and use of AEDs, by way of providing for limited  
          liability protection from civil liability.  Arguably, however,  
          existing law is advantageous in that it does so in a fashion  
          that also increases the likelihood that an AED will be in  
          working order at the time of an emergency.  As a matter of  
          public policy, making the statutory immunity contingent upon the  
          mandated maintenance is critical as it does not benefit a person  
          suffering from cardiac arrest if an AED machine malfunctions.   
          While this bill includes a requirement that the person or entity  
          acquiring an AED maintain the AED in accordance with the  
          manufacturer's specifications and check the machine once a year  
          and after each use, the bill significantly diminishes the  
          responsibility of the person or entity seeking to claim immunity  
          from civil liability to regularly maintain the machine to ensure  
          its operation in the event of an emergency.  

          The author and proponents largely assert that the devices today  
          are "much more fail-safe" and "easy for bystanders to use" than  
          they were when the AED statutes were first enacted 16 years ago.  
           The author writes that "[t]hese devices now have voice commands  
          that tell Good Samaritans what to do-they even have built in  
          computers that monitor the heart rhythm of the cardiac arrest  
          victim to determine if a shock should be administered."  It has  
          also been indicated to staff that the newer AEDs have batteries  
          that can last for several years and notify users of the need to  
          replace batteries, reducing the need to check these machines  
          every 30 days. 

          As a practical matter, it should be noted that the regular  
          maintenance checks serve not only to reduce the likelihood that  









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          the AED will be ineffective in an emergency due to things such  
          as defects in the AED or dead batteries, but also serve to  
          prevent against inoperability of the AED in an emergency due to  
          other factors, such as tampering with the AED.<1>  

          Ultimately, if AEDs really are as foolproof and fail safe as is  
          being asserted, rendering the training and maintenance  
          requirements outdated and overly burdensome, then arguably the  
          justifications for limited liability are equally outdated.  In  
          other words, if the machines are so effective and safe that the  
          statutory training and regular maintenance requirements are no  
          longer necessary or justified, then the original justification  
          for qualified immunity to incentivize people to place AEDs in  
          their buildings and businesses despite the perceived risk of  
          civil liability should also be called into question.  

          As stated by the Consumer Attorneys of California, in opposition  
          to the bill: 

            The American Heart Association has conceded that fear of  
            liability should not be a major concern by stating "[a]lthough  
            premises owners may fear liability resulting from the use of  
            an AED, such liability is likely to be very limited."    
            Furthermore, insurance is widely available to protect premises  
            owners.   "Major insurance carriers now routinely provide  
            liability insurance without additional charge for sites or  
            buildings where AEDs are placed."   We are aware of only one  
            lawsuit that has been filed in California in connection with  
            the use of an AED, resulting from the AED's failure to work.   
            Citing to any fear of lawsuits is at most, anecdotal.

            There is no doubt that AEDs can save lives.  However, the  
            safeguards provided in current law ensure that placement of an  
            AED is effective.  Without these safeguards, the ability to  
            properly respond to an emergency diminishes if an employee  
            trained to respond is not available, or if the unit has not  
            been properly maintained and fails to function.  This creates  
            a false sense of security, and in the event of sudden cardiac  
            arrest, there is not much time for mistakes and  
            ill-preparedness.
            --------------------------
          <1> Other states, such as Utah, have made removal or tampering  
          of an AED a misdemeanor.  Utah Code 26-8b-501, enacted by  
          Chapter 98, 2013 General Session. See also Fla. Stat. Sec.  
          401.2915(3); Iowa Code Sec. 147A.15.








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           3.Bill blurs distinction in immunities for potential Good  
            Samaritan rescuers and anticipated users of an AED  

          Under existing law, a Good Samaritan or layperson who uses an  
          AED in an emergency, in good faith, need not meet any  
          maintenance, training, or notice requirements as a condition of  
          obtaining limited liability.  Rather, such persons would be not  
          be liable for any civil damages resulting from any acts or  
          omissions in rendering the emergency care, provided that they do  
          not act with gross negligence or willful or wanton misconduct.   
          (See Civ. Code Sec. 1714.21(b), (f).)  In contrast, a person or  
          entity that acquires an AED for emergency use pursuant to  
          existing law would not be liable for any civil damages resulting  
          from any acts or omissions in the rendering of the emergency  
          care by use of the AED, as long as that person or entity has  
          complied with the maintenance, training, and notice requirements  
          of Section 1797.196 of the Health and Safety Code and does not  
          otherwise act with gross negligence or willful or wanton  
          misconduct.  (See Civ. Code Sec. 1714.21(d), (f).) The  
          requirements for these persons or entities who acquire an AED is  
          different under existing law, in part because the AED statutes,  
          over time, have been crafted to acknowledge a difference between  
          "expected" or "anticipated" users of the AED, and potential Good  
          Samaritans.  

          In fact, when the AED statute was first enacted, it contained a  
          training requirement for these laypersons.  That changed, in  
          2002, when AB 2041 (Vargas, Ch. 718, Stats. 2002) was enacted to  
          remove this training requirement and substantially relax the  
          training requirement for building owners.  At the time, it was  
          thought to be appropriate to treat these two parties differently  
          with respect to training since it would be difficult to train  
          every potential rescuer, but much less difficult to train every  
          anticipated rescuer (i.e., specified employees).  

           4.Author's amendments  

          In effort to address the training, maintenance, and liability  
          concerns outlined in this analysis, the author proposes the  
          following amendments: 
          (1)Re-link Sections 1714.21 of the Civil Code (stating the  
            qualified immunities for a person or entity that acquires an  
            AED) with Section 1797.196 of the Health and Safety Code  









          SB 658 (Hill)
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            (which sets forth the maintenance, training, and notice  
            requirements) so as to ensure that any immunity is conditioned  
            upon compliance with the maintenance, training, and notice  
            requirements of the bill. 
          (2)Increase the frequency of maintenance checks to ensure that  
            the AED is operable as follows:
             a.   require that the device's batteries are checked twice a  
               year; and 
             b.   visually inspect the device on a quarterly basis (every  
               90 days) for potential issues related to the operability of  
               the device, such as a blinking light or other obvious  
               defect that may suggest tampering or other problem has  
               arisen with the functionality of the AED. 
          (3)Ensure that appropriate documentation is maintained of any  
            maintenance checks conducted in accordance with the bill, for  
            purposes of liability protections. 
          (4)Require, on an annual basis, that a demonstration be offered  
            by and to at least one person associated with the building  
            (such as an onsite manager, or employee of a tenant, or a  
            security guard) so that the person can be walked through how  
            to use an AED properly in an emergency.  The building owner  
            would be permitted to arrange for the training demonstration  
            or partner with a non-profit to do so. 


           Support  :  American Heart Association; American Red Cross;  
          Building Owners and Managers Association of California;  
          California Ambulance Association; California Apartment  
          Association; California Business Properties Association;  
          California Chamber of Commerce; California Hospital Association;  
          California Retailers Association;  California State Firefighters  
          Association; California State Sheriffs' Association; Civil  
          Justice Association of California; Commercial Real Estate  
          Development Association, NAIOP of California; El Camino  
          Hospital; International Council of Shopping Centers; Lucile  
          Packard Children's Hospital; Philips; PulsePoint Foundation;  
          Santa Clara County Board of Supervisors; Santa Clara County Fire  
          Chiefs' Association; Silicon Valley Leadership Group; Stanford  
          Health Care; one individual 

           Opposition  :  Consumer Attorneys of California; Rescue Training  
          Institute, Inc. 











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                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  SB 287 (Hueso, 2015) would require  
          specified new commercial buildings to install an AED.  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. 

          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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