BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1507 A
Assembly Member Pavley B
As Amended July 11, 2005
Hearing Date: July 12, 2005 1
Health and Safety Code 5
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SUBJECT
Automatic External Defibrillators: Mandatory Placement in
Health Studios
DESCRIPTION
This bill would, for a five-year period beginning July 1,
2007, require a health studio, as defined, to acquire,
maintain, and train personnel in the use of automatic
external defibrillators (AEDs), as specified. Employees of
the health studio, the facility's board of directors and
the facility itself would be immunized from civil liability
for injuries resulting from the rendering of emergency care
with an AED, except for injury or death that results from
gross negligence or willful or wanton misconduct in the
use, attempted use, or nonuse of the AED. A facility's
immunity would be further conditioned upon the facility
complying with specified maintenance, training, and
staffing requirements. (This immunity would track the
immunity provided by existing law to building owners who
voluntarily install AEDs in their buildings.)
As amended by anticipated author's amendments, after July
1, 2012, health studios opting to continue making available
AEDs installed pursuant to AB 1507's mandate, would
continue to be conditionally immunized from civil liability
AB 1507 (Pavley)
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for injuries resulting from use or non-use of the AED so
long as they complied with the specified maintenance,
training, and staffing requirements.
The bill would define a "health studio" as any facility
permitting the use of its facilities and equipment, or
access thereto, to individuals or groups for physical
exercise, body building, reducing, figure development,
fitness training, or any other such purpose, on a
membership basis. The bill would not apply to any hotel or
similar business that offers fitness facilities to its
registered guests for a fee or as part of the hotel
charges.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
AB 1507 was heard by this committee on June 28 and failed
passage 3 - 2. Since then, the author has agreed to accept
a five-year sunset of the mandate for health studios to
install AEDs in their facilities. Two other amendments are
necessary, however, to restore language omitted or changed
unilaterally by Legislative Counsel's office in the July 11
amendments. (See Comment 1.)
An AED is a small, lightweight medical device used to
assess a person's heart rhythm and, if necessary,
administer an electric shock through the chest wall to
restore a normal heart rhythm in victims of sudden 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. Portable AEDs are
available upon a prescription from a medical authority.
Their general cost is about $2,500 to $3,000 per unit.
AEDs are said to be "fool-proof," but some AEDs have been
recalled recently by the manufacturer. (AED's by Access
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CardioSystems recalled due to serious issues in
performance. November 9, 2004, EMSNetwork News.) In
addition, AED malfunctions have been reported, with most
malfunctions attributable to a weak or discharged battery.
According the American College of Emergency Physicians
(ACEP) website, 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. 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.
The ACEP supports increased public access to AEDs as part
of a comprehensive emergency response plan that is
coordinated with community medical services systems and
with appropriate training. The National Center for Early
Defibrillation adds that attention to maintenance and the
development of procedures to enable quick access to the AED
are also necessary
In 1999, the Legislature enacted SB 911 (Figueroa) to
provide a qualified immunity from civil liability for
trained persons who use in good faith and without
compensation an AED in rendering emergency care or
treatment at the scene of an emergency. The qualified
immunity would also extend to those businesses that
purchased the device, the medical authority that prescribed
the device, and the agency that trained the person in the
AED use, provided that specified training and maintenance
requirements were met. The immunities do not apply in
cases of personal injury resulting from gross negligence of
willful or wanton misconduct. SB 911 was enacted to a
five-year sunset to allow assessment of the impact of its
provisions.
In 2002, the Legislature enacted AB 2041 (Vargas), Chapter
718, Statutes of 2002, to modify the conditions for
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immunizing the AED user and purchasing business. It
eliminated the CPR and AED-use training requirements for
users and relaxed the facility's training and staffing
requirements. AB 2041 was enacted with a five-year sunset
to allow an assessment of its broader immunity provisions.
This bill would specifically apply most of the AB 2041
provisions to health studios, and would make their
acquisition mandatory rather than voluntary. It, too,
would have a five-year sunset to gauge the impact of the
law.
CHANGES TO EXISTING LAW
Existing law , Civil Code Section 1714.21, immunizes from
civil liability:
1) Any person who, in good faith and not for compensation
renders emergency treatment by the use of an automated
external defibrillator (AED) at the scene of an
emergency.
2)A person or entity (e.g., a building owner) that provides
CPR and AED training to a person who renders emergency
care pursuant to (1) above. (However, CPR and AED
training is not required for the Good Samaritan user's
immunity.)
3) A person or entity that acquires an AED for emergency
use if the person or entity has complied with specified
training and staffing requirements, as set forth in
subdivision (b) of Section 1797.196 of the Health and
Safety Code.
The immunity does not apply in cases of gross negligence or
willful or wanton misconduct.
Existing law , scheduled for sunset on January 1, 2008,
provides any person or entity that acquires an AED with an
immunity from liability for its use by any person rendering
emergency care under Civil Code Section 1714.21, if the
person or entity ensures all of the following:
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a) That the AED is regularly maintained and regularly
tested according to the operation and maintenance
guidelines set forth by the manufacturer;
b)That the AED is checked for readiness after each use and
at least once every 30 days if the AED has not been used
in the preceding 30 days. Records of these periodic
checks are also required;
c)That any person who renders emergency care or treatment
by using an AED activates the emergency medical services
system as soon as possible, and reports any use of the
AED to the licensed physician and to the local Emergency
Medical Services (EMS) agency;
d) That for every AED unit acquired up to five units, no
less than one employee per AED unit shall complete a CPR
training course that complies with specified standards.
After five units, at least one employee shall be trained
for every extra five AEDs installed;
e) That acquirers of AED units shall have trained
employees who should be available to respond to an
emergency that may involve the use of an AED unit during
normal business hours;
f) That building owners prepare a written plan
describing the procedures to be followed in the event of
an emergency requiring the use of an AED. The plan shall
require the user to immediately notify "911" and trained
office personnel at the start of AED procedures; and
g) That building owners ensure that tenants receive an
American Heart Association or American Red Cross approved
brochure describing the proper use of an AED, that
similar information is posted next to any installed AED
unit, and that tenants are notified of AED locations no
less than once a year.
(Health and Safety Code Section 1797.196.)
This bill would, for a five-year period beginning July 1,
2012, require a health studio, as defined, to acquire,
maintain, and train personnel in the use of automatic
external defibrillators. On July 1, 2012, the acquisition
mandate would expire, but the conditional liability
protections would remain in place for those health studios
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electing to continue the installation of the AEDs.
The bill would confer a conditional immunity upon employees
of the health studio, the board of directors of the
facility and the facility itself, from civil liability for
injuries resulting from the rendering of emergency care
with an AED. The immunity would not apply for acts of
gross negligence or willful or wanton misconduct in the
use, attempted use, or malicious nonuse of an AED.
The bill would confer upon the health studio that
conditional immunity from civil liability arising out of
any act or omission in the rendering of emergency care with
the AED (by any person) if the health studio complies with
specified conditions [listed as a) thru f) above].
Existing law requires, and this bill would require, as a
condition of immunity for the facility, that "acquirers of
AED units shall have trained employees who should be
available to respond to an emergency that may involve the
use of an AED unit during normal operating hours."
This bill would further provide that health studio
acquirers of AED units may need to train additional
employees to assure that a trained employee is available at
all times.
COMMENT
1.Author's amendments needed to avoid potential new
opposition to two changes in July 11 amendments
a) Change "shall" to "should be"
Existing law requires as a condition of immunity for
the facility that "acquirers of AED units shall have
trained employees who should be available to respond
to an emergency that may involve the use of an AED
unit during normal operating hours." In order to
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encourage the voluntary placement of AEDs in office
buildings by building owners who feared potential
liability if they did not comply with strict staffing
requirements, the Legislature softened the standard
usage of "shall" to "should be" for the five-year
trial period of AB 2041. It is unknown if that softer
standard has indeed encouraged more building owners to
install AEDs voluntarily.
AB 1507 intends to replicate that standard for health
studios installing AEDs. However, the July 11
amendments would require instead that trained
employees shall be available to respond.
The author may offer an amendment to change "shall" to
"should be."
b) Should health studios have a choice of keeping the
installed AEDs after July 1, 2012, or should they be
given the option
The five-year sunset language submitted to Legislative
Counsel's office provided health studios with the
option on or after July 1, 2012 to uninstall or
continue the installation of any AEDs installed
pursuant to the mandate of this bill. If the health
studios decided to continue with the installations,
the conditional immunity provisions would still apply.
The July 11 amendments prepared by Counsel, however,
omitted the option language and instead provide for
mandatory maintenance and training requirements after
July 1, 2012.
Consistent with the language submitted to Legislative
Counsel, committee staff believes that the author will
be offering an amendment to make continued maintenance
of AEDs after July 1, 2012 at the option of the health
studio, and not mandatory.
2. Stated need for bill
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The author writes:
Strenuous physical activity is common in health clubs
and may trigger a SCA (Sudden Cardiac Arrest). ? Sixty
percent of all SCA victims experience a heart
Arrhythmia for which the Automated External
Defibrillator (AED) is designed to correct.
Therefore, the placement of AED's in health clubs will
save SCA victims lives by reducing the time between
the SCA victim's collapse and the first defibrillation
shock. AED's have been proven to be effective if
applied quickly. In addition to saving a SCA victim's
life, they can help to reduce neurological impairment
resulting from prolonged oxygen deprivation. ?
She adds:
Health Clubs are in the business of providing a
service to their members. Included in that service
should be the assurance that if a member has a sudden
cardiac arrest the health club would have an AED on
site. Health Clubs should take every and all
precautions to ensure that their members are safe at
all times while in the facility.
She concludes:
Currently, there is no requirement that health club
facilities install AED's in their facilities, although
there are some clubs that are voluntarily doing so.
This bill will ensure all facilities have AED's on
site and that their staff is trained in their use.
3. The potential benefit of AED placement in health studios
Sudden cardiac arrest (SCA) often occurs in active,
outwardly healthy people. Indeed, strenuous exercise has
been shown to be a trigger for SCA. One supporter, The
National Center for Early Defibrillation, asserts that
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the risk of SCA during exercise is significantly higher
than at times of no exertion.
Thus, the placement of AED units in a health studio where
fit and less-than-fit members are strenuously exercising
to sweat off pounds and inches, they hope, seems
eminently logical. Proponents assert that AB 1507 would
enact good public policy by requiring AEDs in health
clubs where strenuous activity leading to sudden cardiac
arrest is certainly foreseeable.
Proponents also note that SCA strikes more than 250,000
people each year in the United States. Of this number,
only 7% survive. Proponents also point out that 60% of
SCA victims experience heart arrhythmias (Ventricular
Fibrillation) that are "shockable" with an AED, and that
the purpose of the electrical shock provided by an AED is
to restore the SCA victim's heart to a normal rhythm.
One proponent, the American Heart Association (AHA),
asserts that cardiac arrest is a life-or-death situation,
and the patient has very little chance of survival
without defibrillation.
According to the HeartSave program, emergency medical
services (EMS) can have response times of anywhere from 8
to 30 minutes. This is too late for almost all SCA
victims. Survival rates from ventricular fibrillation
can exceed 90% if defibrillation occurs in the first 1-2
minutes. However, the chances of survival decline by 10%
per minute for every minute thereafter.
Proponents thus assert that AEDs can save lives,
particularly in the confines of a health studio where
trained health studio employees should be available to
respond to a SCA emergency. In case they are not
available, studies have shown that AEDs are capable of
being operated by non-trained individuals.
Proponents assert that having AEDs installed in health
studios would significantly add to the victim's chances
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of surviving a sudden cardiac arrest.
4. Revised narrower definition of "health studio"
The July 11 amendments define" health studio" to mean
"any facility permitting the use of its facilities and
equipment, or access thereto, to individuals or groups on
a membership basis, for physical exercise, body building,
reducing, figure development, fitness training, or any
other such purpose. Health studio does not include any
hotel or similar business that offers fitness facilities
to its registered guests for a fee or as part of the
hotel charges."
According to the author's office, she intends this bill
to apply to the fitness centers and health studios that
provide fitness services and facilities to its membership
cliental. The bill is not intended to apply to, for
example,
a) hotel or resort gyms and spas that offer hotel guests
day passes to hotel fitness facilities for a fee or as
part of the hotel charges; b) facilities such as the Elks
Lodge that rent space to aerobics or tai chi instructors
to teach a class; or c) other private or public building
owners that rent their facilities for recreational use by
a third-party organization (such as the city or local
high school renting out its tennis courts for use by a
private tennis club). The original reference to Civil
Code Section 1812.81 could have been interpreted to apply
AB 1507 to those situations. The July 11 amendments
narrow AB 1507's scope accordingly.
5. Health studios may need to train additional employees to
meet staffing requirements
One condition for the immunity under existing law and
this bill is that the facility "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."
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That standard was a compromise standard enacted in AB
2041 (Vargas) in 2002 to encourage building owners to
voluntarily install AEDs in public and private buildings.
On the one hand, sound public policy argued for
requiring all building employees and potential AED users
to be trained, not only to avoid mistakes but to improve
proficiency. Proponents reported that there was a
situation where an AED was available, but a child died
because there was no one trained to retrieve and use the
device. Most individuals can reportedly be trained to
use an AED in four hours or less.
On the other hand, if the training standards are made too
onerous or expensive for building owners, they may refuse
to install AEDs voluntarily or may install the bare
minimum if required by law to install them. As the
compromise, AB 2041 repealed the requirement for all
expected employee users to be trained and instead enacted
a sliding scale training requirement. For up to five
installed AEDs, the builder owner shall train "no less
than one employee per AED unit" in cardiopulmonary
resuscitation and AED use. If more than five AEDs are
installed, the builder owner is required to train a
minimum of one additional employee for each five
additional AEDs installed. (The AB 2041 compromise also
repealed the requirement that any Good Samaritan user of
the AED had to be trained in AED use and CPR - thus
further broadening the conditional immunity.)
Thus, the AB 2041 compromise recognizes that the
impracticality of requiring every potential employee user
be trained in AED use, but also establishes a seemingly
appropriate minimum level of trained employees and
requires the builder owner to have trained employees
capable of responding to an emergency during normal
operating hours.
This bill is intended to adopt the same compromise as the
Vargas bill, but also would further provide that health
studios "may need to train additional employees to assure
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that a trained employee is available at all times."
This additional language was added to recognize the fact
that health studios have normal operating hours that are
quite extended. In fact, some operate 24 hours a day.
Thus, to remove any implication that bare compliance with
the training standards (one trained employee for each AED
installed up to five) would be sufficient in every case,
AB 1507 makes the express declaration that health studios
may need to train additional employees to qualify for the
conditional immunity. (Thus, if a health club only
installs one AED but is open 24 hours a day, the training
of a single employee would not suffice for the immunity.)
As noted in Comment 1, an amendment is needed to conform
this bill to the Vargas compromise standard.
6. AEDs are not the cure-all, in and of itself
Notwithstanding the wish of human nature for the AED to
be the answer for all sudden cardiac arrest situations,
the National Association of School Nurses cautions that
while early defibrillation is an important element in the
survival of a cardiac victim, defibrillation must be
combined with other elements such as early access to EMS,
early CPR and early access to Advanced Cardiac Care.
As noted in the background information, the American
College of Emergency Physicians supports increased public
access to AEDs that is coordinated with community medical
services systems and with appropriate training. Existing
law and AB 1507 is consistent with that position. (See
proposed Section 104113(e)(2)(C), (D), and (E) on page 3,
beginning line 13.)
7. Consumer attorneys and health clubs are neutral
Representatives from the Consumer Attorneys of California
and the International Health, Racquet, and Sportsclub
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Association (IHRSA) participated in the drafting in AB
1507. Both organizations are "neutral" on the bill as
amended.
8. Very small chance of misuse or misapplication, asserts
Heart Association
According to the American Heart Association, AEDs contain
microcomputers to accurately identify sudden cardiac
arrests and make extensive use of audible prompting and
signals to provide operators with clear and concise
instruction, making their use uncomplicated, intuitive,
and nearly foolproof. AHA's website states that "an AED
will almost never decide to shock an adult victim when
the victim is in non-VF (ventricular fibrillation:
irregular heart rhythm). AEDs 'miss' fine (sic) VF only
about 5% of the time. The internal computer uses complex
analysis algorithms to determine whether to shock?. The
AED will make the correct 'shock' decision more than 95
of 100 times and a correct 'no shock indicated' decision
in more than 98 of 100 times. This level of accuracy is
greater than the accuracy of emergency professionals."
AHA also reports that the device does not allow for
manual overrides, in the event a panicked operator tries
to administer the shock even when the device finds that
the victim is not in cardiac arrest.
Intentional misuse would not be covered by the qualified
immunity.
9. Minor variation allowed in maintenance and testing
requirement
Existing law, the Vargas bill, requires the AED to be
maintained and regularly tested according to the
operation and maintenance guidelines set forth by the
manufacturer, the American Heart Association, and the
American Red Cross, as well as according to any
applicable rules set by a state or federal authority.
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This bill would relieve a health studio from having to
maintain and test the AED unit according to the standards
of both the American Heart Association and the American
Red Cross, in addition to following the guidelines of the
manufacturer and applicable rules of any applicable state
or federal authority. While the guidelines of both
organizations are currently identical, in the unlikely
future event of a conflict between the two standards, the
health studio obviously cannot comply with both. This
change corrects that problem.
Support: American Heart Association; American Red Cross of
CA; California Fire Chiefs Association;
California State Firefighters Association;
California State Alliance of YMCAs; Emergency
Medical Services Administrators' Association of
CA; Fire Districts Association of CA; League of
California Cities; National Center for Early
Defibrillation; Philip Medical Systems; Santa
Clara County Fire Chiefs' Association; Sudden
Cardiac Arrest Survivor Network; University of
Pittsburgh School of Medicine Professor Mossesso;
numerous SCA survivors
Opposition:None Known
HISTORY
Source:Author
Related Pending Legislation: AB 254 (Nakasnishi) would
establish specific rules for
immunizing the school and its
employees for any injury resulting
from the use of an AED voluntarily
installed in a private or public K -
12 school. AB 254 was approved by
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this committee
6 - 0.
Prior Legislation: SB 911 (Figueroa), Chapter 163, Stats.
1999, established the "Good Samaritan" law
for acquisition and use of AED's in
emergencies, and provided a qualified
immunity from civil liability for trained
persons who use in good faith and without
compensation an AED in rendering emergency
care or treatment at the scene of an
emergency.
AB 2041 (Vargas), Chapter 718, Stats. 2002,
extended the "Good Samaritan" law by
broadening the immunity for the use or
purchase of an AED, established more flexible
training and staffing standards for builder
owners that install AEDs, and required owners
to notify building tenants of AED locations
and to provide a brochure as to its use.
Prior Vote:Assembly Floor (45 - 30)
Assembly Judiciary Committee (6 - 3)
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