To Rescue, or not to Rescue - that is the question.

[Thalassamania]

Those that go after divers for trying to help should be ashamed of themselves.

There is no need for anyone to be ashamed, as far as I know no one has ever gone after a diver for trying to help, never.

So ... how do you feel about fear mongering and rationalizing away what should be commitment to help?

 

[Deep-Thief]

Being a firefghter,and I am only trained medically up First Responder,It would be hard for me not to stop and help,IF and thats a big IF,IF it's a life or death situation,or help a drowning child or if close and see someone needing help,I would have to in good conscience.I don't have a duty to act that I know of when I am off duty,but I would if I could,

I think you do have a duty to act. You HAVE medical training, only up to first responder, but medical training none the less. I used to be a nationally registered first responder and I was taught in my class that you do have a duty to act. Kinda like if you are a doctor or nurse and you pass an accident where someone needs medical aid, if someone saw you pass without stopping, you can be sued. You have an Ethical duty to act. This is weather, on duty or not. This is the way it was explained to our class and the way I understood it. YMMV. Mark

 

[rstofer]

So ... how do you feel about fear mongering and rationalizing away what should be commitment to help?

I feel very badly about it. My Rescue training is 20 years old. Do I really remember the subtleties? How could I possibly consider myself to be competent? So, I don't. I don't even discuss my Rescue cert and I surely wouldn't discuss it with an insta-buddy. What you see is what you get and don't have any expectations that I will have any capability to do anything. That's the safe position. Same ocean, same day, that kind of thing.

In fact, I will only be diving with family so a lot of the issues disappear.

But, would I really be willing to risk my 401(k)'s, my and my wife's pensions, our home equity, my wife's income and our insurances to help where, even if I'm the only diver in the area, I might not do it to the satisfaction of a lawyer after-the-fact. Hm... I'm not so sure.

The California Supreme Court stated in the very first sentence of their decision states: "Under well-established common law principles, a person has no duty to come to the aid of another." Well, if they say I don't have a duty, why should I assume I do?

http://www.courtinfo.ca.gov/opinions/documents/S152360.PDF

In the dissent, the minority poses the lunacy: "One who dives into swirling waters to retrieve a drowning swimmer can be sued for incidental injury he or she causes while bringing the victim to shore, but is immune for harm he or she produces while thereafter trying to revive the victim."

It is true that the case decided by the Supreme Court was egregious and the outcome may, indeed, have been reasonable. One of the plaintiff's lawyers in the case suggested not to read too much into the decision because the actions of the defendant were so extreme. OTOH, he could just be drumming up business.

I understand the Legislature is working on the problem of extracting the words the SC added to the section (1799.102) where they never existed. But, we still don't have a budget! I wouldn't count on anything happening on this problem either.

If you have nothing to lose (money), you might as well help where you can. If you do have something to lose (a comfortable lifestyle) then maybe you should send flowers. Unless it's family, of course!

Richard

 

[Deep-Thief]

My main thought to this whole thread, Do unto others as you would have them do unto you. To all those that don't want to help someone else. I sure hope you don't ever need help. Am I saying to put you own life in jeopardy to help someone, NO. If you can reasonably help with out injuring yourself, I would hope you would.

This reminds me of the girl who watched her sisters get pitchforked by an intruder. Yes you read that right and this is a true story. She got out of the house and ran to the neighbors for help. When she got there, she asked if he had a gun and told him what had happened. His response, If I go and shoot the intruder I will get in trouble. He didn't help. Guess where this happened, CALIFORNIA. Oh theres a suprise.

I mean nothing towards the average Californian, but you all have some STUPID laws. You all need to elect some people with some common sense. Unfortunatley that is lacking in most of society today all over this country.

 

[wve]

I'm late to this thread, so I haven't caught up on the California ruling. (I usually figure California laws are crazy from the git-go.) But I do want to respond to this quote:

... if you are a doctor or nurse and you pass an accident where someone needs medical aid, if someone saw you pass without stopping, you can be sued. You have an Ethical duty to act. This is weather [sic] on duty or not.

There is a difference between an ethical duty to act and a legal duty to act. Any legal obligation would stem from an established doctor-patient relationship which usually does not exist in rescue situations.

Since many do feel that there is an ethical or moral obligation to help others in need, many (if not most) states have Good Samaritan Laws which protect those rendering help against being sued for simply trying to help.

Now, if a person chooses to help, that person may be held accountable for the standard of training that s/he has attained. In other words, an EMT or physician may be held to a higher standard of care than a layman once that care is initiated. Still, the Good Samaritan statutes may override this.

The most common emergencies are trauma, heart disease, and strokes. I am not a surgeon or trauma specialist. I am not a cardiologist, and I am not a neurologist. Consequently, when I come across most emergencies, I am not the best person to take care of such things. On the other hand, I probably know more than most lay people on the scene.

So what I do is assess the situation. I quickly try to figure out what happened and what needs to be done about it. If someone else is already dealing with it, and if they appear to be taking care of things adequately, I don't butt in. But if I think I can add some expertise, I do so because it is the right thing to do, not because I feel compelled to do so legally.

I do have a question for the lawyers among us: The legal duty to act may vary among different states. So if there are any states which actually place a legal duty to render aid upon physicians and other professionals, does that duty only extend to those licensed within that state, or does it apply to anyone who has ever been licensed as a physician anywhere and at any time?

(Not intending to hijack the thread, but the comments started me wondering...)

 

[Thalassamania]

Somehow I find trouble equating my "lifestyle" preferences to somebody's life, especially since we are taking about a concern, (e.g., being sued as a result of a botched diving rescue) that's naught but hypothetical ... I don't think it's ever occurred. I remember some cases where there was an instructor who had a student in trouble ... but there was clearly a duty to the student there and these involved allegations of reckless and wanton actions.

 

[rstofer]

I mean nothing towards the average Californian, but you all have some STUPID laws. You all need to elect some people with some common sense. Unfortunatley that is lacking in most of society today all over this country.

Our problem is that the Supreme Court is now in the business of creating laws where none existed before. This judicial activism has to stop! Nobody on the SC was elected; they do NOT represent the will of the people.

But I wouldn't be surprised that a 'fine print' reading of the Good Samaritan laws of other states would show them similarly worded. The problem with this decision is that the SC ADDED words to the section that were never there in the first place. The majority, in their meager wisdom, decided that their interpretation is what the legislature really meant even when it was clear that it wasn't what the legislature wrote.

Between the US 9th Circuit Court Of Appeals and the CSC, this state is in a shambles. I assume everyone knows that the 9th CCA is the most overturned court in the country! Unbelievable...

Richard

 

[83aztec]

You always ask for consent. If the answer is no then you are not to help. If the person passes out or you find them that way you have implied consent. But you still first must ask (not if underwater). If you are foolish enough to ignore their request not to help then you should be sued. The CA law has not really changed. Now what would you do? Hopefully, exactly as you were trained.

 

[NudeDiver]

There is no need for anyone to be ashamed, as far as I know no one has ever gone after a diver for trying to help, never.

There was a case recently - I think it was in Washington State? Not sure...dead guy's wife went after the dead guy's dive buddy. Don't remember all the details.

 

[rstofer]

Somehow I find trouble equating my "lifestyle" preferences to somebody's life, especially since we are taking about a concern, (e.g., being sued as a result of a botched diving rescue) that's naught but hypothetical ... I don't think it's ever occurred. I remember some cases where there was an instructor who had a student in trouble ... but there was clearly a duty to the student there and these involved allegations of reckless and wanton actions.

You're right! It's all hypothetical; until it isn't. And at that instant in time, a decision must be made. Do the right thing and try to help or do the safe thing and walk away.

That there may not be a court case directly on point is irrelevant. The Calif. Supreme Court has set the stage for every scum bag lawyer in the state to come after anyone that helps another. Talk about a full-employment act! This is going to get way out of control!

I'm too old to live on the street as a result of trying to help someone I don't even know. I couldn't even afford the attorney's fees to defend myself. After all, the plaintiff doesn't have to pay his legal costs, the lawyers take theirs from the proceeds. In effect, I wind up paying both lawyers. And it's a given that I will lose: just my attorney's fees if I am vindicated or everything I own if I am not.

There's a mathematical diversion known as Game Theory. One of the results is that a player never wants to make a move to a position where, no matter what they do, they lose. More important, the opponent doesn't want to put the player in that position because they may not act rationally. They may choose to lose bigtime rather than take a smaller hit. This is because there is a difference in perception about the size of the hit. See "The Ropes to Skip and the Ropes to Know: Studies in Organization Behavior" by Ritti.

People die every day. It's a given that it will happen to everyone, sooner or later. As this is all hypothetical, let's hope none of us ever has to make a decision about it. But there's no point in becoming a second victim, physically or financially.

Richard