BILL ANALYSIS �
AB 633
Page 1
Date of Hearing: May 7, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 633 (Salas) - As Amended: April 17, 2013
As Proposed to be Amended
SUBJECT : Emergency medical services: EMPLOYER POLICIES
Key issueS :
1)SHould EMPLOYERS GENERALLY BE PROHIBITED FROM ADOPTING
POLICIES THAT PROHIBIT THEIR EMPLOYEES FROM VOLUNTARILY
PROVIDING EMERGENCY MEDICAL SERVICES IN RESPONSE TO A MEDICAL
EMERGENCY?
2)SHOULD THE BILL'S GENERAL PROHIBITION AGAINST SUCH POLICIES
ADDITIONALLY NOT APPLY TO SPECIFIED HEALTH FACILITIES IN
ADDITION TO THOSE FACILITIES ALREADY LISTED IN THE BILL IF
THERE IS A "DO NOT RESUSCITATE" OR A SPECIFIED "PHYSICIAN
ORDERS FOR LIFE SUSTAINING TREATMENT" FORM OR A SPECIFIED
ADVANCE HEALTH CARE DIRECTIVE IN EFFECT FOR THE PERSON UPON
WHOM THE RESUSCITATION WOULD OTHERWISE BE PERFORMED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
synopsis
According to the author, this measure is in response to a recent
well-publicized incident at a retirement community in
Bakersfield. According to media reports, this past February an
87-year-old resident of the Glenwood Gardens retirement
community collapsed in the dining room of the facility. Media
reports showed that a 911 call revealed that an employee of the
facility indicated that she would not perform CPR on the woman
due to a facility policy that prevented employees from
performing life-saving procedures. The woman subsequently
passed away before emergency services personnel could arrive.
According to news reports, the facility director later issued a
written statement asserting that the incident resulted from a
"complete misunderstanding" of the facility's practice with
regards to emergency medical care for its residents. Regardless
of the precise facts of that particularly tragedy, this measure
AB 633
Page 2
seeks to ensure that in the future employers generally will not
adopt or enforce any such policies that prohibit an employee
from voluntarily providing emergency medical services in
response to a medical emergency. In response to concerns that
some facilities which typically have patients that often may not
wish to be resuscitated, the measure was amended to clarify that
this general prohibition against such policies will not apply to
any of the following facilities, if there is a "do not
resuscitate" or a specified "Physician Orders for Life
Sustaining Treatment" form or a specified advance health care
directive in effect for the person upon whom the resuscitation
would otherwise be performed: (1) A long-term health care
facility, as defined;(2) A community care facility, as defined;
(3) A residential care facility for the elderly, as defined; or
(4) An adult day health care center, as defined. The bill
unanimously passed the Assembly Labor Committee by a vote of
7-0, and it is supported by the California Advocates for Nursing
Home Reform and the California Professional Firefighters. It
remains opposed by the California Hospital Association, which
among other concerns states that hospitals and other places
where medical care is usually offered have a multitude of
skilled individuals whose job it is to render emergency medical
care and assistance, that there are specific protocols for doing
so in those environments, and that all such facilities therefore
should be exempt from the legislation. Amendments are
recommended in the analysis to address this concern and make
another clarification.
SUMMARY : Prohibits, with specified exceptions, an employer from
adopting or enforcing a policy that prohibits an employee from
voluntarily providing emergency medical services in response to
a medical emergency. Specifically, this bill :
1)An employer shall not adopt or enforce a policy prohibiting an
employee from voluntarily providing emergency medical
services, including, but not limited to, cardiopulmonary
resuscitation, in response to a medical emergency.
2)States that this general prohibition on such policies does not
apply to any of the following facilities, if there is a "do
not resuscitate" or a specified "Physician Orders for Life
Sustaining Treatment" form or a specified advance health care
directive in effect for the person upon whom the resuscitation
would otherwise be performed: (1) A long-term health care
facility, as defined;(2) A community care facility, as
AB 633
Page 3
defined; (3) A residential care facility for the elderly, as
defined; or (4) An adult day health care center, as defined.
EXISTING LAW :
1)Provides 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. (Health & Safety Code Section 1799.102.)
2)Defines "'wanton' or 'reckless' misconduct" as conduct by a
person who may have no intent to cause harm, but who
intentionally performs an act so unreasonable and dangerous
that he or she knows or should know it is highly probable that
harm will result. (City of Santa Barbara v. Superior Court,
41 Cal.4th 747, 753 (2007).)
3)Defines "gross negligence" as an "exercise of so slight a
degree of care as to justify the belief there was indifference
to the interest and welfare of others." (46 Cal. Jur. 3d
Negligence 100.)
4)Provides, under various provisions, various types of qualified
immunity to professionals who render emergency care outside of
the scope of their employment.
COMMENTS : According to the author, this measure is in response
to a recent well-publicized incident at a retirement community
in Bakersfield. According to media reports, in February of this
year an 87-year-old resident of the Glenwood Gardens retirement
community collapsed in the dining room of the facility. Media
reports showed that a 911 call revealed that an employee of the
facility indicated that she would not perform CPR on the woman
due to a facility policy that prevented employees from
performing life-saving procedures. The woman subsequently
passed away before emergency services personnel could arrive.
According to news reports, the facility director later issued a
written statement asserting that the incident resulted from a
"complete misunderstanding" of the facility's practice with
regards to emergency medical care for its residents.
Existing state law (referred to generally as "Good Samaritan"
law) generally provides that no person who in good faith, and
AB 633
Page 4
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. Existing law also contains other specific
liability provisions related to medical, law enforcement, and
emergency personnel, and others.
According to the author, CPR is a series of life saving actions
that improve the chance of survival following cardiac arrest.
According to the American Heart Association, there are
approximately 360,000 out-of-hospital cardiac arrests in the
United States each year, accounting for 15 percent of all
deaths. On average, bystander CPR is provided in only
approximately one fourth of all out-of-hospital events in the
United States despite public education campaigns and promotion
of CPR as a best practice.
The author states that the question of whether employers have
policies that prevent employees from performing CPR is unclear,
which may cause confusion among Californians. The author argues
that existing employer policies preventing employees from
performing CPR generally should be against public policy. He
contends that such employer policies may discourage employees
from performing CPR due to fear of being disciplined or fired.
ARGUMENTS IN SUPPORT : The California Professional Firefighters
(CPF), state council of the International Association of Fire
Fighters, writes in support of the measure that:
On average, CPR is provided in approximately one in
four of all out-of-hospital events by a bystander.
However, some may refuse to give CPR for fear of being
sued for any wrong-doing? AB 633 would protect "Good
Samaritans" who are only trying to do the right thing?
ARGUMENTS IN OPPOSITION : The California Hospital Association
(CHA) opposes this bill unless amended. CHA states that the
Good Samaritan provision of existing law exempts "emergency
departments and other places where medical care is usually
offered" from the definition of a "scene of an emergency." CHA
states that this is in recognition that hospitals and other
places where medical care is usually offered have a multitude of
skilled individuals whose job it is to render emergency medical
care and assistance, and that there are specific protocols for
AB 633
Page 5
doing so in those environments. CHA states that the bill would
prohibit hospitals and other employers licensed to provide
medical care from implementing such appropriate policies.
Suggested Committee Amendments:
1)To be consistent with existing case law (See, e.g., Sav-On
Drug Stores, Inc. v. Superior Court (2004) 34 Cal 4th 319;
Application Group v. Hunter Group (1998) 61 Cal. App. 4th 881)
and to ensure that employers have neither formal policies nor
practices prohibiting an employee from voluntarily providing
emergency medical services in response to a medical emergency,
the Committee may wish to amend the bill with this minor
clarification as follows:
On page 2, line 4, after "policy" insert: or practice
2)In order to at least partially address the concern raised by
the California Hospital Association above that the Good
Samaritan provision of existing law already exempts "emergency
departments and other places where medical care is usually
offered," the Committee may wish to amend the bill to include
specified health care facilities in the bill's existing list
of facilities which typically have patients that often may not
wish to be resuscitated if there is a "do not resuscitate" or
a specified "Physician Orders for Life Sustaining Treatment"
form or a specified advance health care directive in effect
for the person upon whom the resuscitation would otherwise be
performed, as follows:
On page 2, line 26, after "1570.7" insert a new line which
reads:
(5) A health facility licensed under Health and Safety Code
section 1250.
PENDING RELATED LEGISLATION : AB 259 (Logue) provides that it is
unlawful for a long-term health care facility, a community care
facility, an adult day health care center, or residential care
facility for the elderly to have a policy that prohibits an
employee from administering CPR. AB 259 was also amended to
include language related to "do not resuscitate" orders or
advanced health care directives that mirrors the language
contained in this bill. That measure passed the Assembly Health
Committee unanimously, and it is now pending in the Assembly
AB 633
Page 6
Appropriations Committee. Thus this bill appears to be broader
than AB 259 in that it applies to all employers other than those
specifically exempted.
PRIOR RELATED LEGISLATION : This Committee unanimously approved
AB 83 of 2009 (Ch. 77, Stats. 2009, Feuer) which encourages Good
Samaritans to continue to step forward and help others in
danger.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform
California Professional Firefighters
Opposition
California Hospital Association (oppose unless amended)
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334