POINTING FINGERS AFTER A DIVER’S DEATH (rant & discussion)

[The Chairman]

When things go bad they are not the ones getting sued.

You keep posting out of ignorance. The agencies are always getting sued for the incompetence of their instructors as well as the mistakes made by divers. A number of those cases have been discussed right here on ScubaBoard.

Part of the problem is the certification agencies portraying that scuba is safe for the whole family including the elderly and children.

The inherent risks of diving have been taught in every course I have taken or given. The whole point of training is to reduce the risk to an acceptable level through skills, knowledge and understanding. That's the whole point of getting certified. If you dive within your limits, and adhere to common industry practices as taught in most every OW course, the chances of you getting hurt are pretty nil. However, if you dive beyond your training, skills, gear, gas and endurance (aka limits) then the odds of you getting hurt rise dramatically.

 

[kelemvor]

First of all, kudos to everyone participating/posting in this thread. This is the type of relatively fact-based, opinion-clearly-labeled discussion I had hoped we would have. Onward . .

One thing to remember is that when as an expert (myself, Frank, or any of the other regularly-used people) are engaged/hired, it's usually shortly before trial which is generally fairly far along in the process. So in those cases, there's likely enough factual evidence to create at least the possibility or appearance of a connection between a diving death and something someone did or didn't do.

Also bear in mind that no matter how diligent you think you are, I can pretty much guarantee that there will be SOMEthing - might be minor, might be major - that you did "wrong" during the course of the dive or the day. And the plaintiff's attorneys will either point to that as cause or use that to accuse you of being careless and that there's obviously something else unknown that you carelessly did that contributed to the death.

Some quick ones I've been involved in where operators were sued:

• Diver runs out of air, buddy breathes to the surface with buddy, but apparently embolizes on the way up and dies. Sues dive shop since rental gear has a pressure gauge that read 150psi at 0psi. Settled out of court.

• Diver never surfaces from dive. Small dive site and unlikely that diver could have surfaced far away due to water depth. However, roll call is botched and boat leaves site. Subsequent investigation shows that boat leaving was at least 30 minutes longer than the diver's longest dive ever and 30 minutes later than the tank possibly could have lasted. Settled out of court.

• Diver/photographer on commercial scuba underwater photo shoot loses group, goes to average 180 feet (maxed at 200) for about 25 minutes (with his buddy) while diving Nitrox32. (I can hear the audible gasps from the readers as I type.) Says he was just trying to find the group the whole time even though he kept shooting video. Despite computer alarms going off, stays down until buddy motions 500psi. Buddy runs out of air on the way up, they octo breathe and then suck the second tank dry, and both free ascend from 40-ish feet. Diver ends up severely bent and will be in a wheelchair rest of his life. (Ironically, buddy - on the exact same dive profile and on Nitrox32 - suffers NO injuries.) Testimony makes it appear that photog oversold his credentials to get the job but he testifies at trial (from his wheelchair) that he doesn't know much about diving and should never have been allowed to make the dive, plus he's not nitrox-certified and they never asked. Also an issue of no O2 on the boat (but the dive was 10 minutes from their dock), and a delay in evacing to a recompression chamber. After the case went to the non-diving jury, settled for a huge amount, but even that was about half of what the defense attorneys feared a jury might award.

I'm guessing that any diver reading this would place the majority of the blame, if not the entire blame, on the diver in these cases. The roll of the dice is whether or not a non-diving jury would agree and if they don't, to what extent will they offer monetary damages?

The big hammer the plaintiff's lawyers use - and I've argued that we as an industry should fight this concept tooth and nail - is that it is "well-known" that the captain is responsible for the safety of his passengers while they are on his vessel. And while I agree that if I'm ON your boat, and you ram it into the breakwater and injure me, that's on you. But when I'm diving, I'm NOT on your boat. And anything I do underwater is totally out of your influence or control.

If we're doing a $5 bar bet on "captain is always responsible" I'll accept "everyone knows" as proof. But when you want $5 million, then I'd like to see the CFR or some official regulatory documentation to validate your assertion. (Frank, can you shed any light here? Because I've challenged this notion in testimony and no one can produce anything in Coast Guards regs or CFRs. The best they come up with is Naval tradition.) But it seems too often lawyers and juries accept the notion that the captain is expected to be an omnipotent psychic, who can predict the bad things that will happen and then prevent them before they occur.

That being said, once the accident happens, the captain/crew/instructor certainly has a duty to respond, and respond effectively & efficiently. Failure in that area, even though it didn't cause the accident, might leave you exposed and justifiably so. So to go back to where I started in post #1, I'm not saying that captains (and instructors and shops) aren't ever to blame. Simply that there are many times when it's made to look like it's their fault when, certainly to a certified diver, it is not.

- Ken

Yep, lawyers are a scourge on the country (and probably the world). Accident analysis on scubaboard is not (in my opinion) about lawyering. For me, it is about the rest of us learning something from a tragedy. Maybe it's a gear or skills change. Maybe it's just being wary about a particular operation.

Edit: Not all lawyers, but there does seem to be an awful large number who are a problem.

 

[tarponchik]

Part of the problem is the certification agencies portraying that scuba is safe for the whole family including the elderly and children. They gloss over the fact that open water is an inherently dangerous environment. Talking to a non-diver they think the biggest risk underwater is sharks, they don't understand OxTox, DCS, or other problems with diving under pressure. With such a public perception it is not difficult for attorneys to find a sympathetic jury. The agencies make their money on certifications, membership fees, book and materials, etc. The more divers and dive professionals the better. When things go bad they are not the ones getting sued.

Did your mom forget to tell you that our whole world is an inherently dangerous environment? Google tells me that twice more people die from heart attacks per each marathon run than per each scuba dive, 1 in 126,626 runs vs. 1 in 211,864 dives, and you don't even need a doctor's release form to run; you only need to qualify for most popular runs, like Boston.

Agencies save lives by distracting people from far more dangerous activities, like driving a car.

 

[Bob DBF]

Google tells me that twice more people die from heart attacks per each marathon run than per each scuba dive, 1 in 126,626 runs vs. 1 in 211,864...

I could believe the marathon stastics since the runners register for the runs and sponsors like advertising the size of the run. The Scuba industry on the other hand, relys on estimates when it comes to the number of dives.

One would have to compile the boat manifests, training dives (if the agencies share), and that would not count divers like me that just head from home to the coast and dive. Estimating the number divers and dives is easy, but not accurate. On top of that there is no body that compiles every scuba death worldwide, dandy don does try, but all deaths are not reported so that number could be suspect as well.

I would guess the number of active divers and the number of dives estimated by the dive industry is an inflated figure but there is no way for me to know either.


Bob

 

[The Chairman]

Agencies save lives by distracting people from far more dangerous activities, like driving a car.

I love it...

 

[Chavodel8en]

Part of the problem is the certification agencies portraying that scuba is safe for the whole family including the elderly and children. They gloss over the fact that open water is an inherently dangerous environment. Talking to a non-diver they think the biggest risk underwater is sharks, they don't understand OxTox, DCS, or other problems with diving under pressure. With such a public perception it is not difficult for attorneys to find a sympathetic jury. The agencies make their money on certifications, membership fees, book and materials, etc. The more divers and dive professionals the better. When things go bad they are not the ones getting sued.

I don't understand this post, it sounds like you are faulting cert agencies for training people altogether -- for leading people into "an inherently dangerous environment." Do people not have primary responsibility for their own safety?

My dive training was a long time ago, but I remember I was taught about OxTox, DCS, narcosis, etc -- the dangers you cite. Im pretty sure every training module covers these things. From my view, they are generally covered in depth and the dangers are STRESSED ALOT.

I mean if someone chooses to skip the written material and just wing the test and pass, I guess they could get certified w/out getting the necessary information about OxTox, DCS, etc. Is that the agency's fault?

I am sure that there are instances when a cert agency -- or a dive operator -- do something wrong and it contributes to a death.

However, as a certified diver, the choice to go to an "inherently risky environment" is mine alone. I decide if Im prepared to handle myself wherever I choose to go. I choose to put myself underwater in __ conditions and at __ depth, its on me (and if needed, my buddy) to get myself back on the boat safely.

Whatever happens underwater is on me. Barring faulty equipment, the only fault I could conceivably put on another for underwater occurrences is if a dive briefing is negligently wildly inaccurate.

 

[Carl_F]

drrich2 asked:

> I'm asking what the boat is obligated to provide.

1.) Emergency O2 capability? - yes; maybe not by law but by common industry practice
2.) Boat staff watching the water for heads bobbing up & divers in evident distress? - yes
3.) Site briefings? - depends on the charter; if I, as a dive professional, am taking a group out, then likely "no" and I'm responsible for briefing my group. If I'm a customer asking the boat taking me out for a two-tank morning dive, then "yes".
4.) Staff training in CPR/First Aid? - yes; especially if they are dive professionals
5.) AED? - not yet ... but as they become more common and accepted industry practice, they may get to that point.
6.) Verify the divers have cert.s? - no from an obligation to the customer but yes from a business/insurance risk management practice
7.) Warn the divers not to exceed some particular depth? - no from an obligation to the customer but yes from a business/insurance risk management practice
8.) 'Bench' divers who do or come up in deco. if told not to go into deco.? - no from an obligation to the customer but yes from a business/insurance risk management practice
9.) Monitor max. depths or ending PSI (I'm pretty sure the answer here is no)? - no from an obligation to the customer but maybe from a business/insurance risk management practice (I've not seen this done regularly ... but if the crew finds out about exceeding max depths or gross violation of ending PSI, they've taken action consistent with business/insurance risk management practice)

 

[Wookie]

I don't understand this post, it sounds like you are faulting cert agencies for training people altogether -- for leading people into "an inherently dangerous environment." Do people not have primary responsibility for their own safety?

My dive training was a long time ago, but I remember I was taught about OxTox, DCS, narcosis, etc -- the dangers you cite. Im pretty sure every training module covers these things. From my view, they are generally covered in depth and the dangers are STRESSED ALOT.

I mean if someone chooses to skip the written material and just wing the test and pass, I guess they could get certified w/out getting the necessary information about OxTox, DCS, etc. Is that the agency's fault?

I am sure that there are instances when a cert agency -- or a dive operator -- do something wrong and it contributes to a death.

However, as a certified diver, the choice to go to an "inherently risky environment" is mine alone. I decide if Im prepared to handle myself wherever I choose to go. I choose to put myself underwater in __ conditions and at __ depth, its on me (and if needed, my buddy) to get myself back on the boat safely.

Whatever happens underwater is on me. Barring faulty equipment, the only fault I could conceivably put on another for underwater occurrences is if a dive briefing is negligently wildly inaccurate.

I would contend that you and your attitude are not the norm. And it really isn't about YOU, it's about your heir. If you die because you didn't do something right, no harm (except to you). Your wife, however, who might not be a diver, and might not understand diving, may not understand that it's on you to stay alive.

 

[Carl_F]

An additional point ... boat operators providing policies and practices that help the diver have a safe dive and different than what would be obligated to provide (e.g., safe passage to and from the dive site) do help the bottom line. A diver that comes up bent or, in the worst case, dead costs the boat a lot of money ... the O2 provided in response to the incident, the race back to the dock (likely at higher speeds than a normal return so more fuel burned), the potential lost income from other divers who may not come back for another dive on the boat, etc. There are real costs to the boat operator if there is an injury/death on one of their dive trips.

So the additional practices of monitoring diver performance (checking certs, checking air/depth, keeping divers out that went into deco or violated computer deco obligation, etc.) can be a positive addition to the bottom line.

 

[wetb4igetinthewater]

I got disheartened mostly by the difficulty finding competent crew in an improving economy, but also because of the times I heard "My vacation is ruined". How is your vacation ruined? The weather/visibility/we didn't go to the fort/we had to go to the fort/I didn't see a turtle. The expectation of entitled folks is that they will go to the fort/not go to the fort/see a turtle, and if you don't meet their expectations, their vacation is ruined.

OT: When I stayed at a private game reserve in South Africa a long time ago, the game ranger was upset that he didn't get to show me a leopard. I was ecstatic with the images I brought home. While it would have been nice, it didn't phase me a bit. He enjoyed my time there because I made him work, making him stop, move to different directions for the right light/composition. It was a great experience. I thought I was a PITA, but he said I was the ideal customer as I wanted to learn and see as much as I could.

Perspectives I guess.