BILL ANALYSIS
SB 127
Page 1
Date of Hearing: August 25, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 127 (Calderon) - As Amended: August 20, 2010
As Proposed to be Amended
SENATE VOTE : Not relevant
SUBJECT : AUTOMATIC EXTERNAL DEFIBRILLATORS (AEDs): HEALTH
STUDIOS
KEY ISSUE : SHOULD EXISTING "AED" LAW BE CLARIFIED TO ADDRESS
THE UNIQUE BUSINESS MODEL OF "24-HOUR" HEALTH CLUBS, WHERE
FACILITY STAFF ARE NOT ALWAYS PRESENT AT THE FACILITY WHEN
CUSTOMERS ARE?
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill addresses the continuing effort of policymakers in
California to encourage the proliferation and use of automated
external defibrillators (AEDs) in easily accessible locations,
including hotels and health facilities. AEDs are portable
medical devices used to administer an electric shock through the
chest wall to the heart after an individual suffers cardiac
arrest. They are generally considered "fail safe," and there
has reportedly been no known successful lawsuit brought against
an individual for the use or misuse of these devices. This
Committee has, with the help of the American Heart Association,
the Consumer Attorneys of California, and other interested
parties, helped fashion several measures over the years to spur
the availability and use of AEDs. For example, in 2002, the
Committee approved AB 2041 (Ch. 718 of 2002) by then-
Assemblyman Vargas which, among other things, broadened the
current immunity for the use or purchase of an AED and
substantially relaxed the requirement that building owners and
others who acquire AEDs ensure that expected AED users complete
an accepted CPR and AED course as a condition of immunizing the
building owners from liability arising from the use of the AED.
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In 2005, the Committee also approved AB 1507 (Ch. 431 of 2005)
by then-Assemblymember Pavley which required all health studios,
as defined, to acquire, maintain, and train personnel in the use
of AEDs, for a five-year sunset period beginning July 7, 2007
and ending in 2012. This bill would remove the sunset date
provision from Section 104113 of the Health and Safety Code,
thereby having the effect of indefinitely requiring that all
health studios acquire and maintain AEDs, and train their
personnel in the use of these devices. In addition, this bill
would establish basic training and staffing requirements for
health studios that allow their members access to their
facilities during times when they do not have an employee on the
premises (also known as "24-hour clubs"). This bill also would
require these health studios, including franchisors of chains of
health studios, to collect and report specified data over the
next four years to the Senate and Assembly Judiciary Committees
for future evaluation. Finally, with respect to health studios
that are 24-hour clubs, this bill appropriately waives 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, and waives immunity from liability for civil
damages resulting from any act or omission by an employee
rendering emergency care using an AED. Without these
provisions, current law could be construed to prevent health
studios from allowing access to clubs during periods when staff
is not present. There is no known opposition to this measure.
The author is amending the bill in Committee simply to clarify
that only health studios that are 6,000 square feet or less may
operate during times when an employee is not present. In other
words, the bill, as proposed to be amended, requires a health
studio that is a 24-hour club and that operates in a space
larger than 6,000 square feet to deny its members access to the
facility when an employee is not present.
SUMMARY : Seeks to establish requirements for the use of
automated external defibrillators (AEDs) by those health studios
generally known as "24-hour card key clubs" that do not maintain
personnel on site 24 hours a day but are accessible to members
during times when no employee is present. Specifically, this
bill :
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1)Removes the July 1, 2012 sunset date provisions for existing
requirements that every health studio acquire and maintain an
AED, and train personnel in its use, thereby extending these
requirements indefinitely.
2)Requires a health studio that allows its members access to its
facility during times when it does not have an employee on the
premises to:
a) Train all employees in CPR and the use of an AED within
30 days of commencing employment.
b) Ensure that trained staff are on the premises of the
health studio a minimum of 50 hours per week.
c) Submit annual reports for the next four years to the
Assembly and Senate Judiciary Committees containing
specified information about the average number of hours the
health studio was staffed prior to and after adoption of
this legislation, and the number of reported cardiac
incidents that occurred during non-staffed hours. Permits
franchisors for a chain of franchised health studio to
collect and report this data for its franchisees.
d) Deny access to members when an employee is not present
if the health studio operates in a space that is larger
than 6,000 square feet.
3)Provides that any health studio that allows members access to
its facilities during operating hours when employees trained
in AED use are not present waives:
a) Immunity from liability for civil damages resulting from
any act or omission in rendering emergency care using an
AED;
b) 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.
EXISTING LAW :
1)Provides immunity from civil liability to any person who
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completes a designated CPR course and who, in good faith,
renders emergency CPR at the scene of an emergency, without
the expectation of receiving compensation for providing the
emergency care. (Civil Code section 1714.2.)
2)Exempts from civil liability any local agency, entity of state
or local government, or other public or private organization
which sponsors, authorizes, supports, finances, or supervises
the training of citizens in CPR. (Health & Safety Code
section 1799.100.)
3)Provides immunity from liability for certain trained persons
who in good faith and without compensation use an AED in
rendering emergency care or treatment at the scene of an
emergency. This qualified immunity does not apply in the case
of personal injury or wrongful death resulting from the AED
operator's gross negligence or willful or wanton misconduct.
Nor does it apply to the manufacturer, designer, developer,
distributor, installer, or supplier of an AED or
defibrillator. (Civil Code section 1714.21 and Health &
Safety Code section 1797.196.)
4)Substantially relaxed the requirement that building owners and
others who acquire AEDs must ensure that expected AED users
complete an accepted CPR and AED course as a condition of
immunizing that building owner from any liability arising from
the use of the acquired AED. Maintained the requirement that
any immunities from civil liabilities in this context would
not apply in cases of gross negligence or willful or wanton
misconduct. (Health & Safety Code section 1797.196.)
5)For a five-year period beginning July 7, 2007, requires a
health studio, as defined, to acquire, maintain, and train
personnel in the use of AEDs, as specified. Requires health
studios to maintain AED-trained personnel on site during all
of their normal operating hours. (Health & Safety Code
section 104113.)
COMMENTS : This bill, sponsored by Anytime Fitness,
Incorporated, seeks to establish requirements for the use of
automated external defibrillators (AEDs) by those health studios
generally known as "24-hour card key clubs" that do not maintain
personnel on site 24 hours a day but are accessible to members
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during times when no employee is present. First, this bill
would remove the sunset date provision from Section 104113 of
the Health and Safety Code, thereby having the effect of
indefinitely requiring that all health studios acquire and
maintain AEDs, and train their personnel in the use of these
devices. In addition, this bill would establish basic training
and staffing requirements for those health studios that are
available to members 24 hours a day but do not have AED-trained
employees on the premises at all times (also known as"24-hour
clubs"). This bill also would require health studios, including
franchisors of chains of health studios, to collect and report
specified data over the next four years to the Senate and
Assembly Judiciary Committees for future evaluation. Finally,
with respect to health studios that are 24-hour clubs, this bill
appropriately waives 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, and waives
immunity from liability for civil damages resulting from any act
or omission by an employee rendering emergency care using an
AED.
Author's Stated Need for the Bill: The author contends that
clarification of Health and Safety Code Section 104113 is
necessary because the current law could be construed to prevent
health studios from allowing access to clubs during periods when
staff is not present. In support the author states:
Currently, Section 104113 requires that health studios
ensure that a trained staff member proficient in the
use of AED's is available during normal operating
hours. Current law does not take into account that
some health studios are open 24 hours a day and
operate on a key access membership system. These
health studios provide convenient access to their
members, typically at a lower cost than fully staffed
clubs. SB 127 is intended to ensure that health club
patrons will continue to have the option to access
affordable, 24 hour health studios.
The current law seeks to encourage the maintenance and
use of AEDs in health studios by offering "Good
Samaritan" immunities to the health studio employees
who render emergency care or treatment with the AEDs,
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from civil damages arising from an act or omission in
the course of rendering that emergency care or
treatment. Senate Bill 127 creates a waiver of the
"Good Samaritan" immunities for those health studios
that allow its members access to its facilities during
operating hours when employees trained in the use of
AEDs are not present, and further waives 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.
AEDs In General: An AED is a medical device 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. Portable AEDs
are available upon a prescription from a medical authority.
Their general cost is between $1,500 and $2,000 according to the
American Heart Association (AHA).
AEDs Save Lives: According to the AHA, cardiac arrest is a
life-or-death situation, and the patient has very little chance
of survival without defibrillation. However, the window of
opportunity for saving lives through defibrillation is very
small, being only 10-13 minutes even if CPR is administered
correctly. According to the AHA, in cases of sudden cardiac
arrest, CPR is merely a maintenance tool, and defibrillation
must take place to "shock" the patient's heart into a proper
working rhythm. Thus, the public would be better served, and
lives could be saved, if businesses and offices across
California are encouraged to have AEDs on-site.
Apparent Lack Of Risk Of Accidental Misuse, According To The
American Heart Association: According to the AHA, AEDs contain
microcomputers to accurately identify sudden cardiac arrests and
make extensive use of audible prompting and signals to provide
operators with clear and concise instruction, making their use
uncomplicated, intuitive, and nearly foolproof. Safeguards are
built in to protect both operator and victim and to ensure that
the AED will only deliver a shock if, in fact, the device
affirmatively determines that a victim is in sudden cardiac
arrest. Further, the device does not allow for manual
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overrides, in the event a panicked operator tries to administer
the shock even when the device finds that the victim is not in
cardiac arrest.
AED Availability: According to staff research, the move in the
last few years to increase the number of AEDs available to first
responder units such as police and fire, as well as in
high-traffic areas, such as airports and casinos, has been met
with overwhelming community support. A survey of worldwide news
sources indicates that AEDs have been responsible for many saved
lives after cardiac arrest incidents and that AEDs are in such
high demand that schools and local communities have taken to
outside fundraising to purchase the equipment.
Across the United States there has been a major push for wide
spread access to AEDs, especially where children are concerned.
A high school student in New York State had a heart attack after
competing in a wrestling match. A bystander trained in both CPR
and AED use came to his aid and attempted CPR but did not get a
response. She then called for the AED, which are mandated by
New York Law in every school, and was able to bring the young
man back. As of January 22, 2006, in New York, everyone who is
trained in CPR will also have to be trained to use AEDs as well.
In Georgia, one neighborhood raised funds to purchase an AED
after a boy was struck by a baseball while playing and could not
be resuscitated. Local fire departments in Georgia are pushing
for communities to pool funds and purchase the units for
neighborhood use.
The AEDs have been used successfully in such places as
California's Ontario Airport, and Connecticut's Foxwoods Casino.
According to a Foxwoods' security director, the casino has 15
AEDs on the property and has used them more than 40 times in the
last four years, and more than 300 security personnel and
emergency medical technicians at the casino are trained to use
the machines. In the Minneapolis Airport, passengers waiting
for flights can receive basic training on how to use the machine
in about 5 minutes. The passengers are trained by firefighters
at stations in the airport and the program is funded by
Medtronic which makes AEDs. The goal of all these programs is
to make AEDs as familiar as fire extinguishers and as readily
available to the general public. The FDA has even approved of
their over-the-counter purchase without a prescription.
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No Known Lawsuits Against Users of AEDs : A search of the Lexis
Nexis database continues to reveal no news articles, or
successful federal or state cases, suing for liability against
users of AEDs. Committee staff research indicates that these
devices are virtually "fail-safe" and easy enough for a child to
use (although this is not generally recommended). No negative
reaction has been found regarding the use of the AEDs, or any
suit filed against someone using the AEDs. This is most likely
due to the design programming that will not allow the user to
administer an electric shock needlessly, therefore creating
little chance of user-error in administering the AED. The only
possible negative comment was that, hypothetically speaking,
someone with a living will/Do Not Resuscitate (DNR) order may be
in public and suffer a cardiac episode. A bystander, unable to
know the person has a DNR, or what his/her specific medical
wishes are, may administer the AED against his/her wishes.
World's Shortest Primer on the Assumption of the Risk Doctrine :
As noted above, this measure clarifies that a health club waives
the affirmative defense of primary assumption of the risk,
whether express or implied, as to a claim arising out of the
absence of AED-trained staff at its facility. The issue of
assumption of risk involves the existence and scope of a
defendant's duty of care, which is a legal question that depends
on the nature of the activity involved and the parties'
relationship to that activity. The doctrine of assumption of
risk in negligence cases embodies two components: (1) primary
assumption of risk-where the defendant owes no duty to the
plaintiff to protect him or her from the particular risk, and
(2) secondary assumption of risk-where the defendant owes the
plaintiff a duty, but the plaintiff knowingly encounters a risk
created by the breach of that duty. ( Knight v. Jewett , 3
Cal.4th 296, 308 (1992).) Primary assumption of risk operates
as a complete bar to a plaintiff's cause of action, while the
doctrine of secondary assumption of risks is part of the
comparative fault scheme, where the trier of fact considers the
relative responsibility of the parties in apportioning the loss.
( Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 at
p. 132.) Before concluding that a case comes within the
doctrine of primary assumption of risk, a court must not only
examine the nature of the activity, but also the " 'defendant's
role in, or relationship to" [that activity.] " ( Knight, supra,
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3 Cal.4th at p. 317.) Indeed, the scope of the legal duty owed
by the defendant will frequently depend on such role or
relationship. The Knight court noted that many courts, in
analyzing the duty of the owner of a sports facility or ski
resort, had defined "the risks inherent in the sport not only by
virtue of the nature of the sport itself, but also by reference
to the steps the sponsoring business entity reasonably should be
obligated to take in order to minimize the risks without
altering the nature of the sport." (Id. at p. 317, italics
added.) The court concluded "that in the sports setting, as
elsewhere, the nature of the applicable duty or standard of care
frequently varies with the role of the defendant whose conduct
is at issue in a given case." (Id. at p. 318.)
This measure thus clarifies that a health club appropriately
waives the affirmative defense of primary assumption of the
risk, whether express or implied, as to any claim arising out of
the absence of AED-trained staff at its facility if and when a
customer is allegedly harmed through the absence of AED-trained
staff.
Author's amendments : The author is amending the bill in
Committee simply to clarify that only health studios that are
6,000 square feet or less may operate during times when an
employee is not present. As proposed to be amended, a health
studio that is a 24-hour club and that operates in a space
larger than 6,000 square feet must deny its members access to
the facility when an employee is not present. The amendments
appear below:
On page 4, strike lines 21-24 and insert:
A health studio that allows its members access to its
facility during times when it does not have an employee on
the premises shall do all of the following:
On page 5, between lines 10 and 11, insert:
(E) Deny access to the health studio when an employee is
not present if the health studio
operates in a space that is larger than 6,000 square feet.
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PRIOR RELATED LEGISLATION : AB 142 (Hayashi) was introduced in
2009. That measure sought to establish requirements for 24 hour
clubs that allow access during unstaffed hours. That bill was
held in the Senate Judiciary committee. .
AB 1312 (Swanson) was also introduced in 2009. That measure
sought to extend the sunset in the existing law governing health
studios, and to extend the requirements to golf courses and
amusement parks. That measure was vetoed by the Governor.
AB 2130 (Hayashi) of 2008, would have exempted health studios
that do not maintain personnel on the premises from the
requirements of maintaining personnel trained in AED at all
times on site. The bill would have required, as a condition of
that exemption, that such studios have a telephone on premises;
as well as signs that (a) warn of the potential health and
safety risks of exercising alone, (b) provide instructions in
CPR and AED use, and (c) indicate the location of all AEDs on
the premises. The bill died in the Senate Judiciary Committee.
AB 2083 (Vargas) of 2006, Ch. 85 of 2006, extends the sunset
date for another five years on the operative provisions of
existing law which provide immunity from civil damages for
persons or entities that acquire automatic external
defibrillators (AEDs) and comply with maintenance, testing, and
training requirements.
AB 1507 (Pavley) of 2005, Ch. 431 of 2005, for a five-year
period beginning July 7, 2007, requires a health studio, as
defined, to acquire, maintain, and train personnel in the use of
automatic external defibrillators, as specified.
AB 2041 (Vargas) of 2002, Ch. 718 of 2002, broadened the current
immunity for the use or purchase of an AED in an effort to
encourage their purchase and use, repealed the CPR and AED use
training requirement for a Good Samaritan user of an AED in
rendering emergency care, and substantially relaxed the
requirement that building owners and others who acquire AEDs
ensure that expected AED users complete an accepted CPR and AED
course as a condition of immunizing the building owners from
liability arising from the use of the AED.
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SB 911 (Figueroa) of 1999, Ch. 163 of 1999, provided for
qualified immunity to "Good Samaritans" who voluntarily apply
AEDs at the scene of an emergency to try to save heart victim's
lives, so long as those persons had training in the use of an
AED.
REGISTERED SUPPORT/OPPOSITION :
Support
Anytime Fitness (sponsor)
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334