BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2217 (Melendez)
As Amended May 6, 2014
Hearing Date: June 24, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Pupil and personnel health: automated external defibrillators
DESCRIPTION
This bill would provide qualified immunity for a school district
and its employees who use, attempt to use, or do not use an
automatic external defibrillator (AED) to render emergency care
or treatment. This bill would also state that it is the intent
of the Legislature to encourage all public schools to acquire
and maintain at least one AED and allow schools to solicit and
receive nonstate funds for that purpose.
BACKGROUND
According to the American College of Emergency Physicians (ACEP)
Web site, if a person suffers a sudden cardiac arrest, chances
of survival decrease by 7 to 10 percent for each minute that
passes without defibrillation. A victim's best chance for
survival is when there is revival within four minutes. Small
portable medical devices called automatic external
defibrillators (AEDs) can be 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. Moreover, audible cues
guide the user through the process. However, AEDs are less
successful when the victim has been in cardiac arrest for more
than a few minutes, especially if cardiopulmonary resuscitation
(CPR) is not also provided.
In 1999, the Legislature passed and the Governor signed SB 911
(more)
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(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 for immunity from liability for persons or entities
that acquire an AED, provided that the person or entity has
complied with specified maintenance, training, and notice
requirements. The immunity does not apply in cases of personal
injury or wrongful death resulting from gross negligence or
willful or wanton misconduct. AB 2041 (Vargas, Ch. 718, Stats.
2002) expanded this immunity by relaxing the requirement that
building owners must ensure that expected AED 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). Most
recently, in the last legislative session, SB 1436 (Lowenthal,
Ch. 71, Stats. 2012) was enacted to delete the sunset, thereby
extending the operation of those provisions indefinitely.
Additionally, in 2005, AB 254 (Nakanishi, Ch. 111, Stats. 2005)
amended the above provisions to specify that, if an AED is
placed in a public or private K-12 school, the school 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.
Also of particular relevance to this bill, in 2011, another
bill, SB 63 (Price, 2011) would have enacted into law provisions
that were similar to this bill, except that SB 63 explicitly
required certain actions on the part of any school that decided
to acquire and maintain an AED. That bill was held under
submission on the Senate Appropriations Committee's suspense
file.
Last year, AB 939 (Melendez, 2013) would have stated the intent
of the Legislature to encourage all public schools toi acquire
and maintain at least one AED, encouraged schools that decide to
acquire and maintain an AED to comply with certain requirements,
and also provided a qualified immunity from liability for a
school district and its employees. That bill was approved by
this Committee and held under submission on the Senate
Appropriations Committee's suspense file.
While narrower than AB 939, this bill would similarly state the
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intent of the Legislature to encourage all public schools to
acquire and maintain at least one AED and provide a qualified
immunity from liability for a school district and its employees,
as specified.
This bill was heard by the Senate Education Committee on June
18, 2014, and passed out on a vote of 7-0.
CHANGES TO EXISTING LAW
Existing law provides that any person who, in good faith and not
for compensation, renders emergency care or treatment by the use
of an AED at the scene of an emergency is not liable for any
civil damages resulting from any acts or omissions in rendering
the emergency care. (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
complied with the maintenance, training, and specified notice
requirements. (Civ. Code Sec. 1714.21(d).)
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 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:
Complies with all regulations governing the placement of an
AED.
Ensures all of the following:
o the AED is maintained and regularly tested, as
specified;
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
Emergency Services agency;
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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 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;
o there is a written plan describing the procedures to be
followed in the event of an emergency that may involve
using an AED; and
o 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.
Any person or entity that supplies an AED shall:
o notify an agent of the local EMS agency of the
existence, location, and type of AED acquired; and
o provide the AED acquirer with information regarding the
AED's use, installation, operation, training, and
maintenance. (Health & Saf. Code Sec. 1797.196(b).)
This bill would provide that if an employee of a school district
who, consistent with the requirements of this bill, uses,
attempts to use, or does not use an AED to render emergency care
or treatment, the school district is not liable for civil
damages resulting from the act or omission in rendering the
emergency care or treatment, including the use or nonuse of an
AED, except as specified. This bill would provide that an
employee of a school district who complies with existing law
described above in rendering emergency care or treatment through
the use, attempted use, or nonuse of an AED at the scene of an
emergency shall not be liable for any civil damages resulting
from any act or omission in rendering the emergency care or
treatment.
This bill would provide that if an employee of a school district
complies with existing requirements in rendering emergency care
or treatment through the use, attempted use, or nonuse of an AED
at the scene of an emergency, the employee shall not be liable
for any civil damages resulting from any act or omission in the
rendering of the emergency care or treatment.
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This bill would reiterate that the above immunity does not apply
in the case of personal injury or wrongful death that results
from gross negligence or willful or wanton misconduct on the
part of the person who uses, attempts to use, or maliciously
fails to use an AED to render emergency care or treatment.
This bill would provide that if a public school or school
district complies with the existing requirements of Civil Code
Sec. 1714.21, above, the public school or school district shall
be covered by that section, and shall not be liable for any
civil damages resulting from any act or omission in the
rendering of the emergency care or treatment.
This bill would provide that it is the intent of the Legislature
to encourage all public schools to acquire and maintain at least
one AED.
This bill would specify that it does not alter existing
requirements with respect to the use of AEDs by persons
rendering emergency care.
This bill would permit public schools to solicit and receive
nonstate funds to acquire and maintain an AED. Those funds
shall only be used to acquire and maintain an AED and to provide
training to school employees regarding AED use.
COMMENT
1. Stated need for the bill
According to the author:
California children spend many hours away from their parents
and under the supervision of the state while they receive an
education in California's K-12 public schools. While under
this supervision, parents should be confident that their
children are protected.
According to the American Heart Association, sudden cardiac
arrest kills over 300,000 people a year and is the leading
cause of death in the United States. 5,760 of these deaths are
children under the age of 18.
Unfortunately, many schools are reluctant to acquire AEDs
because existing law does not clearly protect school districts
from civil damages if an AED is used in good faith.
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AB 2217 provides school districts and their employees with
protection from lawsuits if an AED is used on campus to try
and save a life. This will encourage the acquisition of AEDs
in public schools and improve the safety of our state's
children.
2. Similar bill heard last session
As noted in the Background, there have been numerous bills over
the last decade encouraging and regulating the use and
maintenance of AEDs by person and entities. The resulting
provisions provide for qualified immunities for persons
rendering emergency care by way of an AED unit and for entities
that make those units available. With respect to schools, in
2005, AB 254 (Nakanishi, Ch. 111, Stats. 2005) was enacted to
specify the notification and staffing requirements that must be
met when a public or private K-12 school voluntarily installs an
AED on school grounds and to allow immunity from civil liability
resulting from any acts or omissions in using the AED to render
emergency care.
Specifically, 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
complied with the maintenance, training, and notice requirements
specified in the Health and Safety Code. (Civ. Code Sec.
1714.21(d).) Under that provision, the qualified immunity does
not apply in the case of personal injury or wrongful death which
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).)
Nonetheless, the author contends that many schools remain
reluctant to acquire AEDs because existing law does not clearly
protect school districts from civil damages if an AED is used in
good faith. The apparent lack of clarity appears based upon
uncertainty as to what is "a person or entity" that qualifies
for limited liability under the existing provision described
above (i.e., is a school district an "entity" for the purposes
of the Civil Code). Thus, in order to achieve the stated
purpose of encouraging all public schools to acquire and
maintain at least one AED, this bill seeks to address any lack
of clarity as to whether schools that acquire, maintain and use
an AED have qualified immunity. Notably, this bill is
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essentially a narrower version of AB 939 (Melendez, 2013) which
contained similar qualified immunity language that was approved
by this Committee before the bill was held under submission in
the Senate Appropriations Committee.
That being said, the bill provides for essentially the same
qualified immunity as AB 939, in a slightly different way.
Accordingly, this bill would provide that an employee of a
school district shall not be liable for any civil damages
resulting from any act or omission in the rendering of emergency
care or treatment through the use, attempted use, or nonuse of
an AED at the scene of an emergency, if the employee complies
with existing requirements under Civil Code Sec. 1714.21 above
(i.e. requiring that the employee have rendered the care in
compliance with specified maintenance, training, and notice
requirements under the Health and Safety Code.) In doing so,
and consistent with other similar qualified immunity provisions
under existing law, this bill would also state that the immunity
not apply in the case of personal injury or wrongful death that
results from gross negligence or willful or wanton misconduct on
the part of the person who uses, attempts to use, or maliciously
fails to use an AED to render emergency care or treatment.
Additionally, this bill was most recently amended to provide
that if a public school or school district complies with the
existing requirements of Civil Code Section 1714.21, above, the
public school or school district shall be covered by that
section, and shall not be liable for any civil damages resulting
from any act or omission in the rendering of the emergency care
or treatment. Staff notes that in doing so, the bill does not
expressly apply the bill's gross negligence and willful or
wanton misconduct exceptions to this provision. While the gross
negligence and willful or wanton misconduct exceptions could
still apply given the cross-reference to the Civil Code section
which contains the same exceptions, confusion could arise based
on the express language of the bill.
To avoid any such further lack of clarity, the following
amendment is suggested to ensure that the bill's gross
negligence and the willful or wanton misconduct exceptions apply
to the school and school districts as well:
Suggested amendment :
On page 2, at the start of line 17, insert "Except as provided
in subdivision (e)"
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On page 2, line 24 strike "Subdivision (c)" and insert
"Subdivisions (c) and (d)"
Support : American Heart Association/American Stroke Association
(AHA/ASA); Association of California School Administrators
(ACSA); California Association of Joint Powers Authorities
(CAJPA); California State Council of Emergency Nurses
Association; California State PTA; Civil Justice Association of
California; Contra Costa County; Emergency Medical Services
Administrators Association (EMSAAC); Emergency Medical Directors
Association of California, Inc.; Napa County Board of
Supervisors; Olivia's Heart Project; Superintendent of the
Murrieta Valley Unified School District
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : SB 1266 (Huff, 2014) would require
school districts, county offices of education, and charter
schools to provide emergency epinephrine auto-injectors to
trained personnel who, consistent with existing law, may use the
auto-injectors to provide emergency medical aid to persons
suffering from an anaphylactic reaction, as specified. The bill
would also require that each employee who volunteers be provided
defense and indemnification by the school district, county
office of education, or charter school for any and all civil
liability, as specified.
Prior Legislation :
AB 635 (Ammiano, Ch. 707, Stats. 2013) expanded the provision of
naloxone, an opioid antagonist, to persons believed to be
experiencing a drug overdose and granted specified qualified
immunities to licensed health care providers who issues such
prescriptions or standing orders, as well as to unlicensed, but
trained, individuals who administer the naloxone.
SB 669 (Huff), among other things, authorized a trained
pre-hospital emergency medical care person, first responder, or
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lay rescuer to obtain and use epinephrine auto-injectors to
render emergency care to another person, pursuant to specified
requirements, and granted such individuals limited liability, as
specified.
SB 1436 (Lowenthal, Ch. 71, Stats. 2012) See Background.
SB 63 (Price, 2011) See Background.
AB 2083 (Vargas, Ch. 85, Stats. 2006) See Background.
AB 254 (Nakanishi, Ch. 111, Stats. 2005) See Background.
AB 2041 (Vargas, Ch. 718, Stats. 2002) See Background.
SB 911 (Figueroa, Ch. 163 Stats. 1999) See Background.
Prior Vote :
Senate Education Committee (Ayes 7, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Education Committee (Ayes 7, Noes 0)
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