BILL ANALYSIS                                                                                                                                                                                                    

                                          
          



                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 1281 (Padilla)
          As Introduced 
          Hearing Date: May 4, 2010
          Fiscal: No
          Urgency: No
          SK:jd
                    

                                        SUBJECT
                                           
                 Automatic External Defibrillators (AEDs): Immunity 

                                      DESCRIPTION  

          Under existing law, 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 as long as the person or entity has complied with specified  
          maintenance, training, and notice requirements.  This bill would  
          repeal those maintenance, training, and notice requirements. 

                                      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  
          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  
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          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).  This bill would further expand the immunity for those  
          who acquire an AED by removing the specified maintenance,  
          training, and notice requirements under existing law.

                                CHANGES TO EXISTING LAW
           
           1.Existing law  provides for immunity from liability for any  
            person who, in good faith and not for compensation, 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 the maintenance, training, and notice  
            requirements described in more detail below (See item 2).   
            (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).)

           Existing law  provides that the qualified immunity described  
            above does not apply in the case of personal injury or  
            wrongful death that 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).)

           This bill  would provide immunity but would no longer require the  
            training, maintenance, and notification provisions described  
            in 2, below. 

           2.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 does all of the following:

                                                                      



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             a.   Complies with all regulations governing the placement of  
               an AED; 

             b.   Ensures all of the following:

                i.             the AED is maintained and regularly tested;  


                ii.            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.  Records of these checks  
                 must be maintained;

                iii.           that any person who renders emergency care  
                 using the AED activates the emergency medical services  
                 system as soon as possible, and reports any use of the  
                 AED to the local EMS agency;

                iv.            for every AED unit acquired up to five  
                 units, at least one employee per unit must complete a  
                 training course in cardiopulmonary resuscitation and AED  
                 use.  After the first five AED units are acquired, for  
                 each additional five units acquired, one employee shall  
                 be 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;

                v.             there is a written plan describing the  
                 procedures to be followed in the event of an emergency  
                 that may involve using an AED;

                vi.            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;

                vii.           building owners must notify tenants as to  
                 the location of AED units in the building at least once a  
                 year; and 

                viii.          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  
                                                                      



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                 to respond to an emergency that may involve the use of an  
                 AED during normal operating hours; and  

             c.   Any person or entity that supplies an AED shall: (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(b).) 

             Existing law  provides that the qualified immunity described  
            above does not apply in the case of personal injury or  
            wrongful death that results from the gross negligence or  
            willful or wanton misconduct of the person who uses the AED to  
            render emergency care.  (Health & Saf. Code Sec. 1797.196(e).)

             Existing law  specifies that nothing in 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).)

             Existing law  provides that the above-described provisions  
            sunset on January 1, 2013 and, after that date, are replaced  
            by similar provisions requiring maintenance of the unit and  
            training for expected AED users. (Health & Saf. Code Sec.  
            1797.196(g).) 

             This bill  would repeal all of the above provisions, thereby  
            striking the maintenance, training, and notice requirements,  
            described in 2 above. 
             This bill  contains related legislative findings and  
            declarations.                                          

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:

            Each year, approximately 295,000 sudden cardiac arrests (SCA)  
            occur in the United States that are treated out of hospital  
            with emergency services.  Approximately 20% of these events  
            occur in the presence of a witness.  It's estimated that more  
            than 95% of SCA victims die before reaching the hospital.  In  
            the event of a SCA every minute counts and the key to survival  
                                                                      



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            is administration of bystander CPR and the use of an automated  
            external defibrillator (AED).  AEDs are extremely accurate,  
            user-friendly, computerized devices with audio prompts that  
            guide the user through the steps to safely deliver both  
            life-saving shocks and the performance of CPR.  Use of an AED  
            is required to return the heart to a normal rhythm.   
            Statistics show that survival rates drastically increase up to  
            50 to 70 percent when a defibrillator is used within 3 to 5  
            minutes of a sudden cardiac arrest event.  For every minute  
            without a shock to the heart, the chance of survival decreases  
            by 7 to 10 percent. 

            Unfortunately in California, many businesses are not  
            voluntarily installing these life-saving devices due to the  
            fear of liability and other requirements in the law.  Current  
            law ties immunity to specific requirements placed on the  
            acquirer of an AED or owner of the premises where an AED is  
            located.  These requirements include training, reporting,  
            maintenance and development of a written plan to be followed  
            in case of an emergency.  This reasonable public health bill  
            addresses the problem with current law by providing Good  
            Samaritan immunity protections for businesses that voluntarily  
            install AEDS and by removing the requirements placed on  
            acquirers, which are significantly hindering voluntary  
            installation. 

          The sponsor, American Heart Association (AHA), describes  
          existing law's requirements regarding training, reporting, and  
          maintenance as "barriers" which, once removed, will result in an  
          "increased access to AEDs and more opportunities for Good  
          Samaritan acts and more lives saved." 

          2.  Good Samaritan protection already provided to laypersons; this  
            bill applies to those who acquire an AED; removal of  
            safeguards  

          To be clear, existing law already provides immunity protection  
          to laypersons who use an AED to render emergency care, provided  
          that they do not act with gross negligence or willful or wanton  
          misconduct.  When this provision was first enacted, it contained  
          a training requirement for these laypersons.  However, in 2002,  
          the Legislature passed and the governor signed AB 2041 (Vargas)  
          which removed this training requirement and substantially  
          relaxed the training requirement for building owners.  It was  
          thought to be appropriate to treat these two parties differently  
          with respect to training since it would be difficult to train  
                                                                      



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          every potential rescuer, but much less difficult to train every  
          anticipated rescuer (i.e., specified employees).  This bill  
          would remove the requirement for those anticipated rescuers,  
          thus removing existing incentives for the employer to train  
          their employees in use of AEDs and maintain those AEDs to ensure  
          that they are safe for use.

          As noted earlier (see Background), the existing qualified  
          immunity for persons or entities that acquire an AED included  
          safeguards to ensure that the AED was successfully placed and  
          thus effective in saving lives.  This bill would delete those  
          safeguards of training, maintenance, and notification.  Opponent  
          Consumer Attorneys of California (CAOC), argues that these  
          provisions provide "an important balance that both encourages  
          premises owners to install AEDs ensuring that safeguards are in  
          place that warrant relieving an owner of liability if one is  
          injured.  Extending immunity for negligence removes incentives  
          to act responsibly and has the harsh impact of eliminating a  
          person's recovery against a negligent actor.  Such immunity  
          should be granted in the rarest of circumstances and only when  
          precautions are in place, which limit the chance that someone  
          will be injured."

          Without these safeguards in place, CAOC worries the bill might  
          unintentionally create prolific grounds for negligence.  The  
          public policy question thus raised by this bill is whether it is  
          appropriate to remove these safeguards which incentivize  
          responsible businesses that install AEDs to provide AED training  
          to their employees, maintain AEDs on their premises, and notify  
          the local EMS authority.  

          3.   Training, maintenance, and notification requirements  
          repealed  

          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. 

           Training 
           
          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  
                                                                      



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          provide immunity from liability to the person or entity that  
          acquired the AED. 

            a.   Importance of training 
           
            In the past, the AHA and other proponents have emphasized the  
            importance of training.  For example, the AHA notes the  
            following about training in its "AED Programs Q & A": 

               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.

            The Sudden Cardiac Arrest Association (SCAA), a supporter of  
            the measure, has asserted that simply installing AEDs is not  
            enough, stating "[i]t is important to identify a medical  
            director, develop an on-site AED response plan, train  
            designated responders and conduct periodic AED response  
            drills."  On its Web site, SCAA also notes that "[w]hile AEDs  
            are now very simple to use and many untrained laypersons have  
            used them successfully, it is best to assure that trained  
            personnel are always on site (at locations where this is  
            feasible).  A trained user does not necessarily mean trained  
            medical personnel but also refers to laypersons with AED  
            training."

            And, as noted by CAOC, a report released by the AHA affirmed  
            the need for training and included it as one of four  
            "essential elements of AED programs," stating: 

               This element does not require training of every potential  
               rescuer but does require the training of anticipated  
               rescuers.  Thus, rescuers who are likely to be present  
               should be trained, but the site should not be expected to  
               train every person who could possibly be present.  The goal  
               is to ensure that a trained rescuer is present at all times  
               (e.g., during business hours).  In training, high priority  
               should be placed on recognizing the emergency; phoning  
               9-1-1; providing CPR and early defibrillation; and using an  
               AED in a safe, appropriate, and effective manner.  . . .  
                                                                      



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               Although AEDs are user friendly and the steps in their  
               operation are often intuitively obvious, the effectiveness  
               of an AED for cardiac arrest requires more than simple  
               operation.  The rescuer must know when to use an AED (i.e.,  
               recognize cardiac arrest), how to operate it, how to  
               troubleshoot it (e.g., a hairy or sweaty chest may prevent  
               good contact between the skin and electrode pads), and how  
               to combine AED use with CPR.  . . .  For all of these  
               reasons, anticipated rescuers should be trained in a course  
               that integrates CPR and use of the AED.  It is important to  
               include the recommendation for training and frequent  
               retraining of anticipated rescuers in community lay rescuer  
               legislation.  ("Community Lay Rescuer Automated External  
               Defibrillation Programs: Key State Legislative Components  
               and Implementation Strategies . . . ," Circulation: Journal  
               of the American Heart Association, 2006.)

            The report also contains recommended state AED legislation  
            that includes "CPR and AED training for anticipated rescuers"  
            in order to ensure "the training of anticipated rescuers in  
            CPR and use of AEDs." 
            b.   Simple operation may not be enough for success  

            Under existing law, the Emergency Medical Services Authority  
            (EMSA) is authorized to establish minimum standards for the  
            training and use of AEDs.  (Health & Saf. Code Sec. 1797.190.)  
             In accordance with this authority, EMSA has promulgated "Lay  
            Rescuer Automated External Defibrillator Regulations."  (Title  
            22, Cal. Code Reg. Div. 9, Chap. 1.8.)  Those regulations  
            provide for "AED Training Program Requirements," which specify  
            the topics and skills that must be included in the program.   
            Several of these items are not necessarily intuitive and would  
            suggest that having trained employees on hand could  
            significantly increase the likelihood that use of the AED  
            would have a successful outcome.  

            For example, the program must cover "assessment of an  
            unconscious patient, to include evaluation of airway and  
            breathing to determine appropriateness of applying and  
            activating an AED" as well as "information relating to  
            defibrillator safety precautions to enable the individual to  
            administer shock without jeopardizing the safety of the  
            patient or the Lay Rescuer or other nearby persons."  The  
            program also must cover how to deal with situations where a  
            victim is in or near water or liquid.  This is important for  
                                                                      



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            the safety of both the victim and the rescuer because the AED  
            delivers an electrical shock, and water conducts electricity.   
            A victim also should be wiped dry before the pads are placed  
            on his or her chest. 

            Although, with this bill, the AHA and others have seemed to  
            move away from the importance of training, it would appear  
            that this is contrary to the direction in which the EMSA and  
            others have moved.

            c.  Training requirements arguably protect the person or entity  
            that acquires the AED 

             Existing law's qualified immunity does not apply in the case  
            of personal injury or wrongful death that results from the  
            gross negligence or willful or wanton misconduct of the person  
            who uses the AED to render emergency care.  In other words, a  
            business owner could be sued-and would not be immune from  
            liability-if the person using the AED did so with gross  
            negligence or willful or wanton misconduct.  

            In either case, it would appear to be in the interest of the  
            person or entity who acquired the AED to make sure that  
            employees are trained in the use of the AED to ensure that  
            they do not act in a manner (i.e., with gross negligence or  
            willful or wanton misconduct) that would result in the  
            acquirer losing the immunity from liability. 



















                                                                      



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            d.   Training increases the likelihood of success  

            In the case of sudden cardiac arrest (SCA), every second  
            counts: there is a ten percent reduction in survival for every  
            minute delay in response.  It has been said "few life  
            threatening emergencies are as time sensitive as SCA," and the  
            American Heart Association recommends that the optimal  
            response time from collapse of the victim to on-scene arrival  
            of the AED with a trained rescuer is three minutes. 

            Although proponents assert that anyone can use an AED, it is  
            important to note that training familiarizes the user with the  
            device, thereby increasing his or her confidence and comfort  
            level during the stress and confusion of an emergency  
            situation.  As a result, training can increase the likelihood  
            that, not only will someone use the AED when needed, but will  
            do so in a timely, efficient, and calm way. 

            e.   Training key to avoiding errors  

            A study performed in 2004 considered the use of AEDs by  
            untrained bystanders and attempted to determine "whether  
            untrained laypersons could accurately follow the visual and  
            voice prompt instructions of an AED."  ("Automated External  
            Defibrillator Use by Untrained Bystanders," Andre, et al.,  
            Prehospital Emergency Care, July/September 2004.)  Three of  
            the authors of the study were employees of Philips Medical  
            Systems, which manufactured one of the AEDs studied.  The  
            study noted:

               In this study of simulated cardiac arrest, we observed  
               several important mistakes made by untrained volunteers  
               when attempting to follow the voice and visual AED prompts.  
                A specific focus of this study was the ability of  
               participants to correctly position pads on the manikin.  
               Obvious errors that would affect debrillation success  
               included failure to remove the pads from the packages or to  
               remove the pad backings, or placing the pads on top of the  
               clothes.  . . . 

               One concern that has been raised regarding layperson usage  
               of an AED is whether the rescuer might inadvertently  
               receive a shock by touching the victim.  We observed only  
               three instances of participants' contacting the manikin  
                during the simulated shock; none of these instances would  
               likely cause serious harm. In each case, the volunteer's  
                                                                      



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               knee or hand made a single point of contact with the  
               victim's clothes during shock delivery. 

            The study concluded that "clear, comprehensive, and explicit"  
            instructions were needed to enable untrained laypersons to  
            safely and effectively use an AED.  The sponsors and  
            supporters have noted that all AEDs now use audio prompts to  
            walk a user through the steps necessary to administer the  
            electrical shock.  They have also noted that AEDs are becoming  
            more widely available.  For example, the Philips HeartStart  
            Home Defibrillator, the only defibrillator that has been  
            approved for sale without a prescription, is available at  
            Costco.  
          Given the study's conclusion that clear, comprehensive, and  
          explicit instructions are needed and the reality that  
          participants were evaluated in a simulation of a cardiac arrest  
          rather than an actual emergency situation which would increase  
          the stress and confusion faced by an untrained rescuer, the  
          study results combined with the increased availability of AEDs  
          are arguably quite worrisome.  Training, as required under  
          existing law, would certainly address the errors made by many of  
          the participants and would familiarize them with the AED that  
          they would be using in an emergency situation.  

          Given these important rationales for training, the Committee  
          SHOULD consider whether training is in fact an essential element  
          of a successful AED program such that it is a necessary  
          component of the qualified immunity? 

           Maintenance of the AED unit  

          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 and checked for readiness after every use or at least  
          once every 30 days if it has not been used.  This bill would  
          repeal this maintenance requirement and instead provide immunity  
          from liability to the person or entity that acquired the AED. 

            a.  Importance of maintenance  

            AEDs are advanced computerized medical devices.  They are made  
            up of a small microprocessor, electrical circuitry, and  
            adhesive electrode pads.  Information about the heart's rhythm  
            is collected by the electrode pads which is then interpreted  
            by the microprocessor.  The microprocessor delivers a  
                                                                      



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            defibrillating shock if the heart is in ventricular  
            fibrillation.  ("Fact Sheet: Automated External Defibrillators  
            (AEDs)," Sudden Cardiac Arrest Association, (available at  
            www.suddencardiacarrest.org).) AEDs must also be properly  
            maintained to best ensure the safety of both the victim and  
            the patient. 

            The AHA's report, "Community Lay Rescuer Automated External  
            Defibrillation Programs" also includes "on-site AED  
            maintenance and readiness-for-use checks" as one of the four  
            essential elements for a successful AED program that  
            should-like training-be included in state AED legislation,  
            noting:

               Newer AEDs conduct internal battery and circuitry checks  
               continuously and visually indicate when service or a  
               battery change is needed.  This "design for dormancy" means  
               that minimal maintenance is necessary, such as a  
               "readiness-for-use" visual check for "service needed" or  
               other status indicator, confirmation of the physical  
               integrity of the device, and a check of the contents of the  
               carrier case. ("Community Lay Rescuer Automated External  
               Defibrillation Programs, supra., Circulation: Journal of  
               the American Heart Association.)
            Given the advanced technology of the units and the potential  
            for problems (see Comment b, below), it would seem that  
            regular maintenance and testing would be key to a successful  
            sudden cardiac arrest outcome using an AED.  For example, it  
            is important to check the AED to make sure that the batteries  
            and electrode pads have not expired.  After all, having the  
            AED in the building is not helpful if the device is not in  
            proper working order.  

            b.   AEDs are not foolproof   

            AEDs are said to be "foolproof," but a recent search of the  
            U.S. Food and Drug Administration's (FDA) website listing  
            medical device recalls found 16 AEDs listed over a nearly five  
            and a half year period.  (  http://www.fda.gov/MedicalDevices/   
             Safety/RecallsCorrectionsRemovals/default.htm  )  All 16 recalls  
            were "Class 1" recalls, the most serious type of recall that  
            involves situations in which there is a reasonable probability  
            that use of the product will cause serious injury or death.   
            Most recently, on April 27, 2010, the FDA issued a warning  
            about faulty components in 14 different AED models and stated  
            that the devices might malfunction during attempts to rescue  
                                                                      



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            victims.  In another case, the Associated Press reported that  
            the Food and Drug Administration had determined that  
            Medtronic's Life 15 heart defibrillators could cause serious  
            injury or death and were subject to a Class 1 recall.  ("FDA  
            gives Medtronic recall its most serious score," April 22,  
            2010, Associated Press.)  In April 2009 the maker of the Zoll  
            AED Plus also issued a Class 1 recall.  In that case, at least  
            two patients died following incidents when the device failed  
            to deliver a shock.  Subsequent tests determined that faulty  
            battery test software failed to detect defective batteries,  
            and it was later found that additional malfunctions had  
            occurred, resulting in one more death.    

            Over 14,000 AED 10 and MRL Jumpstart defibrillators were  
            recalled in March 2009 after 39 reports of incidents,  
            including two deaths.  In this case, the company alerted  
            consumers to the following potential problems with the  
            defective AED: low-energy shock, electromagnetic noise  
            interference, unexpected shutdown during use, blown fuse, loss  
            of voice prompts, and shutdown in cold temperatures.  Another  
            Class 1 recall was issued on September 11, 2008 for LifePak CR  
            Plus AEDs made by Physio Control, Inc.  The AED was determined  
            to be defective because the shock button was covered and not  
            visible so that responders were unable to administer the  
            shock.

            Existing law provides that the qualified immunities do not  
            relieve a manufacturer, designer, developer, distributor,  
            installer, or supplier of an AED of any liability under any  
            applicable statute or rule of law.  While this bill would not  
            affect this provision of law, the cases of recalled AEDs  
            arguably underscore the need for regular maintenance and  
            testing to ensure that the device is working properly.  




            c.   Regular maintenance program ensures AEDs are in their  
            proper location  

            Maintenance of the AED unit is also important for other  
            reasons.  In addition to making sure that an AED unit is in  
            proper working order, a regular maintenance program will help  
            to ensure that the unit is actually located in its proper  
            place and has not been stolen, tampered with, or misused in  
            some way.  Because AEDs are supposed to be placed in a  
                                                                      



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            location that is easily accessible in an emergency situation,  
            they may be vulnerable to theft or tampering.  Regular  
            maintenance checks, such as those required under existing law,  
            would help to avoid this.   

          Given these important rationales for MAINTENANCE, the Committee  
          SHOULD consider whether MAINTENANCE is in fact an essential  
          element of a successful AED program such that it is a necessary  
          component of the qualified immunity?

           Notification to local EMS authority   

          Under existing law, a person or entity that supplies an AED for  
          emergency must notify the local EMS agency of the existence,  
          location, and type of AED acquired.  This bill would repeal this  
          notification requirement. 

          Like training and maintenance, the AHA's report, "Community Lay  
          Rescuer Automated External Defibrillation Programs" also  
          includes "Link with the EMS System" as one of the four essential  
          elements for a successful AED program that should-like training  
          and maintenance-be included in state AED legislation.  In fact,  
          the AHA report provides that notification to the local EMS  
          system should be an "expectation," and state AED legislation  
          should provide that an owner "shall" be required to notify the  
          local EMS.  The report explains the rationale for notification,  
          stating that "[i]f the dispatcher knows the type and location of  
          an AED at the site of the emergency, the dispatcher can direct  
          the rescuer to get the AED and can coach the rescuer in both CPR  
          and AED use." 

          Given this important rationale for notification, the Committee  
          SHOULD consider whether notification is in fact an essential  
          element of a successful AED program such that it is a necessary  
          component of the qualified immunity?

          4.   Federal recognition of training, maintenance, and  
          notification to local EMS authority  

          This bill would delete the training, maintenance, and  
          notification requirements with which acquirers of AEDs must  
          currently comply.  At the federal level, there has been  
          recognition of the importance of training, maintenance, and  
          notification.  For example, in 2000, the federal Cardiac Arrest  
          Survival Act (Pub. L. 106-505) was enacted to provide Good  
          Samaritan protections for use of an AED.  That act provided  
                                                                      



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          immunity from liability for any person who acquired an AED as  
          long as the harm was not because the acquirer had failed to: (1)  
          provide appropriate training to an employee; (2) properly  
          maintain and test the AED; or (3) notify local emergency  
          response personnel of the placement of the AED.  

          More recently, the "Josh Miller Helping Everyone Access  
          Responsive Treatment in Schools Act of 2009" ("Josh Miller  
          HEARTS Act"), was introduced in the U.S. Congress. (See H.R.  
          1380 or S. 1197.)  That proposed act would create a grant  
          program for AEDs in elementary and secondary schools.  The act  
          would require each grantee to: (1) have at least five  
          individuals at the school who have successfully completed  
          training in the use of AEDs; (2) notify local paramedics and  
          emergency services personnel where the AEDs are to be located;  
          and (3) integrate the AED into the school's emergency response  
          plan or procedures. 

          The trend at the federal level appears to be towards recognizing  
          the importance of training, maintenance, and notification.  The  
          Committee may wish to consider whether this bill conflicts with  
          this recognition.  

          5.   Lawsuits  

          Proponents of this measure argue that fear of liability is  
          preventing businesses from installing AEDs on their premises.   
          Despite this contention, staff conducted a review of litigation  
          regarding AEDs and was only able to find one case relating to  
          AEDs. 

          Opponent CAOC similarly contends that fear of liability is  
          unfounded and notes that the AHA's own report "Community Lay  
          Rescuer Automated External Defibrillation Programs" states:

            Although premises owners may fear liability resulting from the  
            use of an AED, such liability is likely to be very limited.   
            We are aware of no lawsuits filed against lay rescuers or  
            premises owners related to the attempted use of an AED in a  
            Good Samaritan effort to save the life of a victim of  
            prehospital cardiac arrest.  The only lawsuits identified  
            cited failure to have AEDs on the premises.

           Support  : Building Owners and Managers Association of California;  
          California Apartment Association; California Business Properties  
          Association; California Chamber of Commerce; California Chronic  
                                                                      



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          Care Coalition; California Emergency Nurses Association;  
          California Forestry Association; California Hospital  
          Association; California Physical Therapy Association; California  
          Retailers Association; California State Sheriffs' Association;  
          CDF Firefighters Local 2881; Civil Justice Association of  
          California (CJAC); EMS Administrators Association of California;  
          International Council of Shopping Centers; League of California  
          Cities; National Association of Industrial and Office  
          Properties; Retail Industry Leaders Association; Sequoia  
          Healthcare District; Sudden Cardiac Arrest Association; Western  
          Electrical Contractors Association (WECA-IEC); 33 individuals

           Opposition  :  Consumer Attorneys of California 

                                        HISTORY
           
           Source  : American Heart Association 

           Related Pending Legislation  :  None Known
           
          Prior Legislation :  See Background.
                                   **************