BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1365 (Negrete McLeod)
As Amended April 30, 2012
Hearing Date: May 8, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Emergency Medical Services: Immunity
DESCRIPTION
Existing law provides limited civil liability (excluding gross
negligence) to firefighters, police officers or other law
enforcement officers, and emergency medical technicians (EMTs)
who render emergency services at the scene of an emergency.
This bill would extend this limited immunity to registered
nurses trained in emergency services. This bill also would
provide immunity to all listed professionals rendering medical
services during emergency ground or air transport.
BACKGROUND
Under traditional principles of common law, a person has no duty
to come to the aid of another. If, however, a person does
assist another then he or she has a duty to exercise reasonable
care. If the actions of the "good Samaritan" fall below this
standard of care and he or she causes harm, then the good
Samaritan may be held liable. There are certain statutory
exceptions to this rule, however, in which California law
provides for limited liability of various persons providing
emergency services, as specified. (See Health & Saf. Code Secs.
1799.102, 1799.104, 1799.106, and 1799.108; Bus. & Prof. Code
Sec. 2727.5; Civ. Code Sec. 1714.2.) These provisions largely
operate to encourage the provision of emergency services under
specified circumstances where else a person might otherwise
hesitate to do so for fear of liability based on ordinary
negligence. Currently, these good Samaritan laws do not account
for nurses who provide emergency medical services while on the
(more)
SB 1365 (Negrete McLeod)
Page 2 of ?
job like they do for firefighters, police officers and other law
enforcement, or EMTs. (Compare Bus. & Prof. Code Sec. 2727.5,
Civ. Code Sec. 1714.2 and Health & Saf. Code Sec. 1799.104 with
Health & Saf. Code Sec. 1799.106.)
This bill, sponsored by the California Association of Air
Medical Services, would add registered nurses who are both
trained in emergency medical services and licensed under the
Business and Professions Code, to the list of emergency service
professionals (firefighters, police officers or other law
enforcement officers, and specified emergency management
technicians (EMTs)) who are subject to limited liability in
rendering emergency medical services under Section 1799.106 of
the Health and Safety Code. The bill would also expand the
activities for which this limited liability applies, to cover
not only emergency services rendered at the scene of an
emergency, but in transportation from the scene of the emergency
to the hospital as well.
CHANGES TO EXISTING LAW
Existing case law provides that a person has no duty to come to
the aid of another, but if he or she decides to assist another
then he or she must act with reasonable care. (Artiglio v.
Corning Inc. (1998) 18 Cal.4th 604; Williams v. State of
California (1983) 34 Cal.3d 18.)
Existing law provides that, in order to encourage citizens to
participate in emergency medical services training programs and
to render emergency medical services to fellow citizens, no
person who has completed a basic cardiopulmonary resuscitation
course which complies with specified standards, and who, in good
faith, renders emergency cardiopulmonary resuscitation at the
scene of an emergency shall be liable for any civil damages as a
result of any acts or omissions by such person rendering the
emergency care, except where his or her conduct constitutes
gross negligence or is provided in exchange for compensation.
(Civ. Code Sec. 1714.2(a)-(b), (e).)
Existing law provides that no physician or nurse, who in good
faith gives emergency instructions to an EMT-II or mobile
intensive care paramedic at the scene of an emergency, shall be
liable for any civil damages as a result of issuing the
instructions.
Existing law also provides that no EMT-II or mobile intensive
care paramedic rendering care within the scope of his or her
SB 1365 (Negrete McLeod)
Page 3 of ?
duties who, in good faith and in a non-negligent manner, follows
the instructions of a physician or nurse shall be liable for any
civil damages as a result of following such instructions.
(Health & Saf. Code Sec. 1799.104.)
Existing law provides that, in addition to the above provisions,
a firefighter, police officer or other law enforcement officer,
EMT-1, EMT-II, or EMT-P who renders emergency medical services
at the scene of an emergency shall only be liable in civil
damages for acts or omissions performed in a grossly negligent
manner or acts or omissions not performed in good faith.
(Health & Saf. Code Sec. 1799.106.)
Existing law provides that a licensed registered nurse, as
specified, who in good faith renders emergency care at the scene
of an emergency which occurs outside both the place and the
course of that nurse's employment shall not be liable for any
civil damages as the result of acts or omissions by that person
in rendering the emergency car, except where he or she is
grossly negligent. (Bus. & Prof. Code Sec. 2727.5.)
This bill would extend those limited liability provisions
currently provided to firefighters, police officers or other law
enforcement officers, and specified EMTs, as specified above, to
registered nurses, as defined.
This bill would extend the limited liability currently provided
under Section 1799.106 of the Health and Safety Code for these
emergency service professionals to include the emergency
services rendered during an emergency air or ground ambulance
transport.
This bill would define "registered nurse" to mean a registered
nurse who is both trained in emergency services and licensed
pursuant to the requirements under the Business & Professions
Code.
This bill would make the following legislative findings and
declarations:
that since the original enactment of Section 1799.106 of the
Health and Safety Code, registered nurses have become more
directly involved in the provision of emergency medical
services as crew members in both air and ground ambulances;
and
registered nurses should be encouraged to provide emergency
medical services in air and ground ambulances in the same way
SB 1365 (Negrete McLeod)
Page 4 of ?
as firefighters, law enforcement, and EMT-Is and EMT-Ps.
This bill would add a cross-reference to the Business and
Professions Code Section relating to the limited liability of
licensed registered nurses to this section.
COMMENT
1. Stated need for the bill
The author writes:
The current law does not include registered nurses in the code
section that applies the gross negligent standard to emergency
medical staff. This bill seeks to make the standard equitable
to registered nurses working at the scene of an emergency.
2. Inclusion of specified registered nurses for the purposes of
limited liability
The author states that, when the limited liability immunity law
was written in 1980, nurses were not typically involved with
rendering emergency medical services in ambulances and on care
flights. Now, however, nurses are routinely used during these
emergency transportations. The gap in immunity for nurses was
discovered this past year when two cases were brought against
emergency medical transport nurses. These cases were settled
out of court, but the immunity issue remains.
This gap arguably is reflected in the limited liability
provisions found in existing law, insofar as Health and Safety
Code Section 1799.104 provides that no physician or nurse, who
in good faith gives emergency instructions to an EMT-II or
mobile intensive care paramedic at the scene of an emergency,
shall be liable for any civil damages as a result of issuing the
instructions. (Health & Saf. Code Sec. 1799.104(a), emphasis
added.) In contrast, Health & Safety Code Section 1799.106
provides that a firefighter, police officer or other law
enforcement officer, or specified EMT who renders emergency
medical services at the scene of an emergency shall only be
liable in civil damages for acts or omissions performed in a
grossly negligent manner or acts or omissions not performed in
good faith. (Health & Saf. Code Sec. 1799.106, emphasis added.)
Thus, nurses who provided instructions to an EMT rendering
emergency medical services would be subjected to limited
liability, as would the EMT, but a nurse who directly renders
SB 1365 (Negrete McLeod)
Page 5 of ?
the emergency medical services himself or herself, would be
subject to ordinary liability.
Limiting the liability exposure of persons rendering emergency
medical services in order to encourage assistance of persons in
emergency situations must be balanced against serious policy
concerns for the safety of those persons being assisted and the
availability of a legal recourse if they are further injured by
an inadequately trained professional who arguably should not
have been providing such emergency services.
As such, to address Committee concerns, the author of this bill
recently amended this bill to further limit the immunity
provided by that section to registered nurses, so as to only
extend to those registered nurses who are specifically trained
in emergency medical services, in addition to being licensed
under the Business and Professions Code. The current version of
the bill is therefore sufficiently narrow in scope such that it
arguably strikes an appropriate balance between those policy
considerations.
3. Expanding the immunity to include emergency services
rendered during transportation
This bill also seeks to specify that the limited immunity of
Section 1799.106 of the Health & Safety Code applies to not only
those services provided at the scene of the emergency by these
emergency medical service (EMS) professionals, but also during
transport to the hospital. According to proponents of this
bill, this is a clarification of the law that is necessary and
logical to ensure that the care and treatment provided during
the same continuum of care is applied the same standard for
liability purposes, up and to the point in which the patient
arrives at the hospital and the care is transferred from the EMS
professional to a physician. In other words, it would be
illogical, for example, to apply one standard at the time that
an EMS professional arrives at a scene to give CPR to a patient
in cardiac arrest and leading up to loading the patient into the
ambulance, and yet another from the point in which they load the
patient onto the ambulance, while continuing to administer CPR,
until they turn the patient over to the physician at the
hospital.
As a matter of public policy, insofar as these liability
standards are intended "to encourage the provision of emergency
medical services by" these EMS professionals (Health & Saf. Code
SB 1365 (Negrete McLeod)
Page 6 of ?
Sec. 1799.106), it would not make sense to cause hesitation by
the EMS professional to move the patient onto the ambulance and
begin the transport to the hospital for fear of different
liability standards. Moreover, existing law does appear to
recognize, elsewhere, that a single continuum of emergency
medical services includes the transportation of the patient from
the scene of the emergency to the hospital. For example,
Section 1799.107 of the Health & Safety Code provides that for
the purposes of that section (which provides limited immunity to
emergency rescue personnel), "'emergency services' includes, but
is not limited to, first aid and medical services, rescue
procedures and transportation, or other related activities
necessary to insure the health or safety of a person in imminent
peril." (Health & Saf. Code Sec. 1799.107(e), emphasis added.)
Additionally, in the case of Carlos Hernandez v. KWPH
Enterprises et al. (2004), the 5th District Court of Appeal
found that where the patient tragically escaped from the
ambulance upon arrival at the hospital and was hit by oncoming
cars, that the EMTs were not liable for not protecting her from
her own suicidal, reckless, or irrational conduct. (116
Cal.App.4th 170, 175.) In that case, the court noted that all
parties acknowledged that the requisite negligence to be shown
by the EMTs was gross negligence, as their liability for
ordinary negligence in the performance of their duties was
insulated by Health & Safety Code Section 1799.106. (Id.) This
implicit recognition by the court that the statute applies
during transportation to the hospital supports the proponents'
argument that this is a clarification and not a change in the
current liability standard.
At the same time, because the statute would now explicitly
specify the limited liability of these EMS professionals during
transportation, by ground or by air, to the hospital, it is
important to ensure that the scope of the bill is sufficiently
narrowed so as not to prevent the application of the ordinary
negligence standard where emergency services are not actually
being rendered. The author worked closely with stakeholders,
including the Consumer Attorneys of California (CAOC) to address
this concern. As a result, the most recent version of this bill
appears to be sufficiently narrow in scope, insofar as it
applies only during "an emergency air or ground ambulance
transport," and not just any air or ground ambulance transport
in general. CAOC indicates that it is neutral on this bill.
4. Suggested amendment should the bill be amended in the
SB 1365 (Negrete McLeod)
Page 7 of ?
future
Committee staff notes that the legislative findings and
declarations do not include EMT-IIs in the listing of emergency
medical professionals who are encouraged to provide emergency
medical services by Section 1799.106 of the Health and Safety
Code.
If the author makes future amendments to this bill, the
following technical amendment is also suggested:
On page 2, line 7, after "EMT-Is" insert ", EMT-IIs,"
Support : California Chapter of the American College of
Emergency Physicians; California Emergency Nurses Association;
CALSTAR
Opposition : None Known
HISTORY
Source : California Association of Air Medical Services
Related Pending Legislation : None Known
Prior Legislation :
AB 83 (Feuer, Ch. 77, Stats. 2009) provided that no person who
in good faith and not for compensation renders emergency medical
or nonmedical care or assistance at the scene of an emergency
shall be liable for civil damages resulting from any act or
omission other than an act or omission constituting gross
negligence or willful or wanton misconduct.
SB 39 (Benoit, Ch. 27, Stats. 2009) revised an existing immunity
protection for disaster service workers who perform disaster
services during a state of emergency to clarify that such
workers are not liable for civil damages resulting from an act
or omission while performing disaster services anywhere within
the jurisdiction covered by the emergency other than an act or
omission that is willful.
AB 90 (Adams, 2009) would have revised Health and Safety Code
Section 1799.102 to provide for immunity from liability for any
person who in good faith and without compensation renders
SB 1365 (Negrete McLeod)
Page 8 of ?
emergency medical or nonmedical care at the scene of an
emergency. That bill died in the Assembly Judiciary Committee.
**************