Diver Indicted in 2003 GBR mishap

[ItsBruce]

Bruce - you're missing a fundamental point. What if it is claimed, after the victim has definitively died, that in fact he did have a pulse but you failed to detect it, so by performing heart massage you did in fact kill him? How do you defend yourself against that?

It is easy to claim someone had a pulse. It is harder to prove it. Yes, you could get sued, and yes, you would have to go through the trouble of defending yourself. But, it is the plaintiff's burden to prove causation and thus to prove there was a pulse.

WARNING: the following is a dissertation on legal procedure, read it at your own risk.

Most jurisdictions in the US (and I'm guessing foreign countries) have a procedure for getting rid of meritless cases. The procedure is usually called a motion for summary judgment. At lease in California, it can be brought when a defendant can prove a plaintiff cannot prove something the plaintiff is required to prove at trial.

So, how does a defendant prove a plaintiff cannot prove something he or she s required to prove at trial?

Again, most jurisdictions have a procedure called "discovery." Through discovery, a party is entitled to learn about contentions an opponent is making and about facts, evidence and witnesses the opponent knows about. One thing that can be done is to use something called "written interrogatories." These are written questions that must be answered under oath.

A common interrogatory may read something like: "State each fact upon which you base your contention that ..." So, in the hypothetical case, the interrogatory might be: "State each fact upon which you base your contention that the decedent had a pulse at the time defendant began to administer CPR."

If the plaintiff's answer is insufficient, that could lead a court to grant a summary judgment. The courts speak in terms of "factually devoid" interrogatory answers. The courts then reason: "If this is as good as he can do at trial, he will lose ... so I may as well end it here."

So, what constitutes a sufficient versus insufficient response: "He had a pulse" -- insufficient. "I tried and I felt a pulse" -- probably sufficient to avoid a summary judgment. "I saw him moving" -- probably sufficient. "I heard him moaning" -- probably sufficient.

END DISSERTATION

Since most lawyers representing plaintiffs in personal injury or death cases work on a contingency fee basis, the economic reality is that if the lawyer is any good, once he or she figures out the case is a loser, he or she will dump it. There is just no profit in pursuing a bad case. And, any lawyer who is so desperate for a case that he or she will keep going with a loser, isn't good enough to get through a trial anyway.

 

[ItsBruce]

:
They wouldn't press charges unless they felt they had enough to convict.

The check is in the mail. And, I'll respect you in the morning.

:
... I am inclined to put a lot of weight on that when I form my opinion of how likely Gabe played a criminal role in Tina's death.

It has been said that when a criminal defendant is at trial, there are two strikes against him before it even starts. First, the defendant is there at all. Regardless of what they may say publicly, jurors start out with the thought that "They wouldn't press charges unless they felt they had enough to convict." Second, the defendant acts guilty. He or she may be dressed up and may start by sitting up straight at the defense table, but it quickly becomes apparent that this is the first time he or she has ever been dressed nicely and his or her body language will show he or she knows he or she is going to prison. Third, regardless of what the judge says about the defendant having a right not to take the witness stand, jurors will always wonder why the defendant did not at least say "I didn't do it." Fourth, the prosecution will play back the parts of the interview that make the defendant sound guilty, e.g. outright lies, even if about other things, inconsistent statements, whether due to differing recollections, etc.

Remember that it is three strikes and you're out ... and there are already four.

 

[ItsBruce]

JUST A MOOD LIGHTENER but sadly enough it seems relevant.


ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No.
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law.

This is why a fundamental rule of examining a witness in trial, especially with a jury, is not to ask a question unless you already know the answer or it does not matter what the witness says.

 

[I Dive]

I think the suggestion is that the victim has been attended to by some EFR person. This person has made a mistake in missing a pulse in his initial assessment. Then this person begins chest compressions thus killing the victim.

Would a coroner actually be able to see evidence of this after the fact?

Cheers!

AS far as I know(I'm not an attorney and I don't play one on TV), in the US, as long as you act in good faith (don't give chest compressions with a machine press for example) you are not liable if something like this happens unless you are an actual medical professional. Keep in mind anyone can sue anyone at any time for anything they want, but the question is where the suit will go.

 

[bowlofpetunias]

Quote ItsBruce

Since most lawyers representing plaintiffs in personal injury or death cases work on a contingency fee basis, the economic reality is that if the lawyer is any good, once he or she figures out the case is a loser, he or she will dump it. There is just no profit in pursuing a bad case. And, any lawyer who is so desperate for a case that he or she will keep going with a loser, isn't good enough to get through a trial anyway.[/quote]

:blinking:ummm errr:shocked2: didn't you just refute your own argument with that statement?:shocked2: Or are Prosecuting Lawyers not concerned about taking on high profile cases they are likely to lose and perhaps effect their credibility/reputation?

 

[bowlofpetunias]

This fear of missing a pulse and therefore killing someone with CPR is the reason ILCOR (International Liasson Committee on Resuscitation) recommendations resulted in taking pulse checks out of the CPR rescue sequences around the world. This fear was grossly overstated. If someone is unconscious, not breathing, not moving, swallowing, responding... in other words no signs of life they need someone to get the air going in and out and the blood pumping around and around to get the brain oxygenated. I know of no way that it is possible to determine the rescuer "missed" an existing pulse after the fact. Statisticely it has been proven the conscequesnces of delaying the CPR are much more significant that the potential harm of starting too early.

You don't want to be thumping on a chest if you don't have to... (it is blinking tiring) you do 2 rescue breaths and do another quick check. In the past we did 10 sec check 2 breaths 10 sec check for pulse and breathing meaning a that for at least 20 seconds in about 25 to 30 seconds there was no oxygen getting to the brain and brain cells were potentially dying.

I confess I thought they were crazy taking the pulse check and landmarking out but after teaching it to 2,500 or so first aiders a year over the last nearly 3 years since we brought in the changes.... I am sold on it. Just too much time wasted messing around with stuff people fixated on and worried about and delayed for when the patient needed action! Highly educated, competent students that I had taught in the past repeatedly came to me and told me they had secretly feared missing a pulse and killing their casualty/patient. All the paranoia about people killing everyone that passed out blew over because it was proven to be nothing more than fear mongering and media beat up.

:blushmg will someone get her off that soapbox?

:focus: Has anyone heard if the extradition procedures have started?

 

[peterbj7]

I don't recall reading here that the man subsequently remarried. I wonder what his new spouse thinks of all this.

 

[Dadvocate]

I wonder what his new spouse thinks of all this.

Whatever she thinks, I bet it has something to do with a delayed honeymoon that is nowhere near the water.

 

[bowlofpetunias]

I don't recall reading here that the man subsequently remarried. I wonder what his new spouse thinks of all this.

:blinking:well there never seems to be a shortage of women who buy into the "Poor me" syndrom or "My love will change him". Amazes me how people in jail for murder have people wanting to marry them

 

[Dadvocate]

Gabe’s not in jail yet, so I am not sure the comparison is apt. Nonetheless, I think you are right in general. Actually, this happens a lot with people in relationships where one person is not incarcerated, so maybe you are right after all.

Perhaps the “poor me” and “my love will change him” syndromes are an extension of the caregiver syndrome that leads loads of people into unhappy relationships. I guess one added advantage of the “poor me” husband sitting in prison is that he is less likely to go astray… not willingly anyway.

In that vein, I wonder if OJ will finally get hitched again now that he will be enjoying his 9 to 15 year stint in his “most eligible bachelor” celled pad. I’m sure he meets the “poor me” side of the equation based on the look on his face in the news this morning.
Okay, way, way off topic now. Avoiding work…

Sorry.