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.
SB 658 (Hill)
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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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