BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1436 (Lowenthal)
As Introduced
Hearing Date: May 1, 2012
Fiscal: No
Urgency: No
SK
SUBJECT
Automatic External Defibrillators (AEDs): Immunity
DESCRIPTION
This bill would make permanent existing provisions of law which
specify that a person or entity who acquires an AED 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 qualified immunity
would otherwise sunset on January 1, 2013.
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
(more)
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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). This bill would delete this sunset, thus extending the
operation of these provisions indefinitely.
CHANGES TO EXISTING LAW
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. (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 all of the
requirements of Health and Safety Code Section 1797.196 that
apply to him or her. (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).)
Existing law , until January 1, 2013, 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:
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;
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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
must 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 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 , until January 1, 2013, 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.
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1797.196(e).)
Existing law , until January 1, 2013, requires a person or entity
that supplies an AED to: (1) notify the local EMS agency of the
existence, location, and type of AED acquired; and (2) provide
to the acquirer of the AED all information governing the use,
installation, operation, training, and maintenance of the AED.
(Health & Saf. Code Sec. 1797.196(c).)
Existing law , until January 1, 2013, 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 other
provisions that do not provide for immunity, but require
maintenance of the unit and training for expected AED users.
(Health & Saf. Code Sec. 1797.196(g).)
This bill would delete this sunset, thus extending the operation
of these provisions indefinitely.
COMMENT
1. Stated need for the bill
The author writes that the bill will:
. . . retain important provisions of current law regarding
voluntary placement of AEDs by removing a sunset date.
Current law has been operative for more than ten years.
Removing the sunset creates more certainty related to
requirements that building owners and other voluntary
acquirers of AEDs must meet in order to be immune from civil
liability, likely resulting in more AED installations and
greater Good Samaritan access.
Each year 295,000 sudden cardiac arrests occur in the United
States that are treated outside of hospitals with emergency
services. Approximately 20% of these events occur in the
presence of a witness. The key to surviving a sudden cardiac
arrest is to administer CPR and the use of an AED by a
bystander. The AED returns a person's heart to a normal
rhythm. Studies show that when CPR and AEDs are used within
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three to five minutes from the onset of collapse, the survival
rate of a sudden cardiac arrest victim is as high as 50 to 70
percent. For every minute without a shock to the heart, the
chance of survival decreases by 7 to 10 percent. . . .
Under current law, in order to be granted immunity from
liability, voluntary acquirers of AEDs, which include, among
others, building owners, schools, churches, and senior
centers, must adhere to specific requirements governing the
placement of AEDs (training, maintenance, written plans,
etc.). On January 1, 2013, current law sunsets and different
requirements will take effect that are less clear especially
those related to training, which will likely result in less
AEDs being installed.
The American Heart Association, sponsor of the measure, writes
that "removing the sunset entirely creates more certainty
related to requirements that building owners and other voluntary
acquirers of AEDs must meet in order to be immune from civil
liability, likely resulting in more AED installations and
greater Good Samaritan access."
2. Bill would extend immunity provisions indefinitely
Under existing law, which sunsets January 1, 2013, a person or
entity who acquires an AED 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 delete the sunset date, thus
extending the operation of these provisions indefinitely and
making the immunity permanent, provided that the person or
entity has complied with the requirements described above.
Proponents of this bill assert that placing AEDs in buildings
can save lives, and that building owners should not be deterred
from buying and installing AEDs out of the fear of potential
liability if the AED is used or not used during a medical
emergency. This bill seeks to encourage the purchase and
placement of AEDs in public and private buildings by providing a
qualified immunity to the building owner for the use or non-use
of an AED.
Staff notes that 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
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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. As a
result, it is 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.
3. Good Samaritan protection already provided to laypersons; this
bill applies to those who acquire an AED, such as building
owners
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
every potential rescuer, but much less difficult to train every
anticipated rescuer (i.e., specified employees).
As noted above, this bill would delete the sunset on Health and
Safety Code Section 1797.196, which provides a qualified
immunity for acquirers of AEDs provided that they meet certain
requirements. Should these provisions of existing law sunset,
the statute that would take its place would require any person
who acquires an AED to ensure that "expected" AED users complete
training in CPR and AED use.
With respect to this provision, the author indicates that the
bill is necessary because "�t]he term 'expected AED user' can be
misleading and confusing. It is not clear who may or may not be
an expected AED user." Indeed, this bill would make permanent
the current, and arguably more clear, requirement that 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
must be trained beginning with the first unit acquired.
Acquirers of AEDs also must have trained employees who should be
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available to respond to an emergency that may involve the use of
an AED during normal operating hours.
4. Safeguards made permanent
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. Those safeguards of training,
maintenance, and notification help to incentivize responsible
businesses that install AEDs to provide AED training to their
employees, maintain AEDs on their premises, and notify the local
EMS authority and building tenants of the location of any AED
unit in the building. This bill would make these provisions
permanent. In the past, this Committee has expressed strong
support for these safeguards. (See Comment 5.)
By deleting the sunset on existing law's provisions granting a
qualified immunity to building owners who install AEDs, this
bill would make permanent provisions of existing law which grant
the immunity to building owners provided that they:
comply with all regulations governing the placement of an AED;
ensure all of the following:
o the AED is maintained and regularly tested;
o 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;
o 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;
o 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 must 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
o there is a written plan describing the procedures to be
followed in the event of an emergency that may involve
using an AED.
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In order to obtain the immunity, building owners must also:
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;
notify tenants as to the location of AED units in the building
at least once a year;
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; and
any person or entity that supplies an AED must notify an agent
of the local EMS agency of the existence, location, and type
of AED acquired and provide the AED acquirer with information
regarding the AED's use, installation, operation, training,
and maintenance.
These provisions would also be made permanent under the bill.
5. Bill limited to removal of sunset date only
In the past, this Committee has expressed significant concerns
regarding efforts to change or revise the maintenance, training,
and notice requirements contained in existing law in a manner
that would arguably weaken those important protections. (See,
e.g., SB 1281 (Padilla, 2010).) It is the understanding of
stakeholders that it is the intent of the author and his sponsor
that this bill will not be used to make such changes. Instead,
the bill would simply delete the sunset date on current law.
Consumer Attorneys of California has indicated that it is
neutral on this measure with the understanding that it simply
removes the sunset date on current law, as described above.
6. Technical amendment needed
The following technical correction is needed:
On page 3, line 11, delete "contents" and insert "content"
Support : Building Owners and Managers Association; California
Apartment Association; California Business Properties
Association; California Chapter of the American College of
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Cardiology; California Chapters of the American Red Cross;
California Medical Association; California Professional
Firefighters; California State Sheriffs' Association; CDF
Firefighters Local 2881; City of Ventura; Civil Justice
Association of California; League of California Cities
Opposition : None Known
HISTORY
Source : American Heart Association
Related Pending Legislation : AB 1666 (Olsen) would extend the
sunset date to January 1, 2018 on Health and Safety Code Section
1797.196. This bill would also revise existing law's
requirement that an AED be checked for readiness at least once
every 30 days, if it has not been used in the preceding 30 days
to instead require that the device be checked at least once
every 90 days if it has not been used in the preceding 90 days.
This bill is scheduled to be heard in the Assembly Judiciary
Committee on May 1, 2012.
Prior Legislation : See Background.
Prior Vote : Senate Health Committee (Ayes 9, Noes 0)
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