Refusing a student with medical clearance

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Drew Sailbum

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Scuba Instructor
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Grand Cayman
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I recently had a situation that I wondered if others have encountered.

Our shop had a potential student provide written medical clearance from his oncologist to dive with lung cancer which was being treated by chemotherapy. :bonk:

When I ran this idea past our local dive physician (who is a scuba instructor, hyperbaric physician, and an ENT specialist) he said, "No <expletive deleted> way!"

Based upon the emphatic reply from our local doc, our shop refused to teach this person. Anyone else ever have a similar experience of second guessing a medical clearance?
 
Originally posted by Drew Sailbum
When I ran this idea past our local dive physician (who is a scuba instructor, hyperbaric physician, and an ENT specialist) he said, "No <expletive deleted> way!"

Well that was a good call on your part! :) I definately would take the advice of a dive physician over just a regular physician any day of the week. However the reality is even if you had let the student dive, if something had happened the oncologist would of been held liable as he signed him off.

I didnt have exactly that happen to me before but it was a case were the parents were divorced and one lied about the childs medical history and when we checked with the other parent we were told the truth. Its a shame a parent would put there own child at risk just so they can take there kid diving.

Ryan Stone
 
to question it at least for your own information if nothing else. Ideally for the potential student it would be good if you could get the oncologist and the hyperbaric doctor to discuss the case and then jointly decide if diving is an acceptable activity for this particular student. I suggest this to prevent the student from going elsewhere and taking an unnecessary risk without the benefit of the hyperbaric doctors input. It could be that there is no reason for him not to dive once the two doctors hash things out together.
 
Without commenting on whether any particular party was correct in their clinical assessment:

About once a month, the Diving & Medicine section of ScubaBoard erupts with someone asking about a question re the risks of diving with a particular disease or disabling condition. People opine without specific information about the individual's symptoms, etiology, or degree/areas of impairment and make broad-brush proclamations re who should or should not dive. This leads thread participants to assume extreme positions that are invariably inappropriate over-generalizations, which in turn leads some folks to decide to hide or ignore key medical considerations, and others to then offer extreme misinterpretations of the Americans with Disabilities Act.

Although the sequence of events may well have included other components which, in the interest of brevity, Drew may have omitted, please consider the following probable flow of events:

- Student presents with bona fide medical clearance (whether the oncologist is correct or not is not the issue: the oncologist made an expert clinical determination);

- A well-intentioned individual who is not a physician second guesses the individual who is a physician;

- The well-intentioned instructor gets another physician to opine based on little more than a diagnosis and not based on a clinical assessment of the patient him/herself and a comprehensive review of the patient's medical record.

- The well-intentioned instructor shuts down the discussion by refusing to provide a service.

Rather than encouraging the individual to sit down with the dive doctor and his oncologist to develop an informed assessment (as JBD has wisely suggested), this approach only encourages the person to "shop around" for another instructor who may be (1) more open-minded, (2) less concerned about student safety, or (3) less informed re medical aspects of diving. It may encourage the student to hide the details of his medical condition and perhaps make an uninformed and potentially risky decision. And if, as the diving doctor has opined, lung cancer (treated or in remission, we don't necessarily know which) is an absolute contraindication for diving, the oncologist will never learn that and may blissfully continue to clear others. It just seems to be a formula for resentment and disaster.

I think JBD laid out a much more appropriate and responsible approach, since in the final analysis, it should be an informed individual that makes the decisions re diving, NOT A WELL-INTENIONED INSTRUCTOR OR A LDS OWNER OR A PHYSICIAN THAT HASN'T PERSONALLY EVALUATED THE PATIENT OR EVEN THE ONCOLOGIST!

One other consideration which, while it may not apply to Drew's situation since he is working in the Cayman Islands (everybody let out that sigh of envy!), is relevant here in the states. If, as I might guess, the potential student's oncologist wrote certain medical information on the clearance/approval sheet, it must be regarded as a medical record which cannot be released to a third party without the express written permission of the patient. You may say that the student gave it to the instructor, so the instructor has the right to do whatever he wants with it. This is simply not the case. I am not a lawyer (and I don't play one on TV), but I might wonder if this information and document is subject to the HIPAA regulations, which for the first time sets specific federal penalties if a patient's right to privacy is violated (fines up to $250K and/or imprisonment up to 10 years for knowing unauthorized disclosure/unintended use of individually identifiable health information).

Drew, I don't for a minute doubt that you had the best intentions in securing the second opinion and it may indeed be that lung cancer (treated or in remission) is an absolute contraindication (perhaps some of ScubaBoard's venerable physicians can provide us with some additional information!), but please recognize that you are participating in a "medical transaction" in which all parties have certain rights and responsibilities. You may say, "but what about my rights as an instructor or a LDS operator?" While I can't speak to the laws of the Cayman Islands, here in the states, Title III of the ADA sets the rights of the person with a disability and those of the "public accomodation" (which in the Act is legal-speak for a public business):

36.202 Activities.

(a) Denial of participation. A public accommodation shall not subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

One may ask if there are exceptions established in the law. Yes, but "instructor wanted to protect the person from potential risk" isn't necessarily one of those exceptions. Re that risk, right now all we know is that the two physicians have disagreed on the magnitude of risk. For a LDS owner to accept the physician's opinion that he/she finds more compelling still has the net effect of violating this "right to participate" provision of the Act.

I certainly don't wish to leave the impression that I would condone diving for someone whose disabling condition created an unreasonable risk of harm to self or others. But the practice of medicine and the laws of this country do not make this situation as clear cut as some might want to think.
 
I'm neither a doctor or a lawyer (I'm a diver Jim, not a doctor!) but there would seem to be problems for both sides. I can see that the patient deserves a fair shake, and I'd think the best course of action would be the aforementioned physician's conference.

This being said however, as the LDS I would fear potential repercussions from training the diver and then having an accident happen (and it wouldn't even have to be related to the previously-known illness, i.e. the guy bolts and has an embolism) - I'd think that the lawyers would try to pin that death on everyone involved (this has been empirically proven by just about every diving accident that I've read about) and the press would have a bonanza on their hands. On that issue alone, the LDS would have a reason to refuse service and would be justified in doing so.

I also believe that the ADA would not become involved in this situation as the LDS cannot be forced by the act (through the "undue hardship to management and company" clause of the ADA as one example) to teach this individual how to dive - there is a very distinct difference between what the ADA does and forcing a company to take on the serious responsibilities that this situation presents. I personally think that the LDS owner would be severely derelict in his duty to the customer if he proceeded to train this person while there are two physicians in disagreement. If the physican who the LDS consulted with read the medical release and wasn't satisfied without additional information, I think the LDSO should follow that recommendation.

On the doctor/patient priviledge, if I remember correctly from some of my previous experiences with attorney/client priviledge (which I have understood to be based on the same/similar law) - if the patient/client releases some of their records to a third party with the reasonable assumption being that the third party will have to further release the information in order for it to be useful (i.e. I can read your medical chart all day long, but it's not going to make a bit of sense to me unless I bring in my own expert to go over them with), and no explicit non-disclosure statement was executed between and client/patient and the third party which protects those records prior to the release - then priviledge is waived by the patient upon handing the documents over to the third party (priviledge is to keep my doctor/attorney from running around town and telling my private business, if I wanted to send my entire medical record / legal documents to the local town newspaper - that's my choice to exercise.) There may be some seperate privacy protection laws which may cover this however. Any doctors/attorneys out there that can give better clarification on this point?

Again, I'm not a lawyer or a doctor, just applying previous experiences in business/life to this question - I think it's a debate that does need to be revisited often, and even think that this person should be certified if the parties involved can work his situation out to everyone's safety and satisfaction - if this could be done, and he/she understood the risks and assumed full responsibility for their well-being there is no other reason to withhold them from the enjoyment of scuba.

(In a nutshell, if I was in this person's position and didn't know what tomorrow might bring, I'd probably be doing the same thing: trying to experience more out of life - I can't fault them for that at all.)
 
There have been many good points made...I would respectfully submit that the goal be the focus: ie, to offer training, to all those who qualify, with as little exposure to harm as possible to the diver, and as little unnecessary liability to the LDS.

If one accepts that thesis, then the conversation between the oncologist and dive physician is desireable. Facilitating that conversation may take diplomacy, but I felt the long term benefits enumerated here-knowledge for future patients etc-are considerable.

Ken
 
Under the scenario above, the LDS, dive instructor or certification agency might (or might not) be liable under state common law or statute if they mishandle a student’s medical records, but I don’t believe they are not subject to penalties under HIPAA or the ADA.

The Health Insurance Portability and Accountability Act governs the release and maintenance of private health information (“PHI”) by employers, other health care providers, health plans, and health care clearinghouses (“Covered Entities” or “CE”s). (Lawmakers love alphabet soup.) The regulations also require CE’s to impose the privacy rules protecting PHI on their contractors, such as third party administrators (or other contractually related “business associations” or BAs). In English, the privacy obligations are imposed on Covered Entities and their contractors, but the entire world (yet). HIPAA and its regulations do not seem directly applicable to the LDS, certifying agency or dive instructor that receives private health information with the student’s written consent because (i) they have no duty under HIPAA and (ii) they have the individual's written consent.

Regarding the ADA issue, first a dive shop is not included in the list of private entities that are specifically labeled as “public accommodations” under the Americans with Disabilities Act. , and the ADA does not impose an unqualified right to perform a task if the disability makes him or her unqualified to perform it safely. At least one federal court has held that the loss of the ability to continue scuba diving is not a “major life activity” protected by the ADA (do you BELIEVE that?). My sense is that a certifying agency, LDS and dive instructor are not obligated to rely on a medical statement provided by student if they believe in good faith that diving would pose a risk to the student or others, especially if they have have an opinion to the contrary.

DISCLAIMER: Oh yes, for those LDS, dive shops and certifying agencies out there: this is provided for discussion purposes only and does not constitute a legal opinion. Contact your own lawyer for that.
 
Very good points made by all, I think the bottom line for Drew is simple. CYA, Cover Your *Backside* Regardless of what a doctor says, both Drew and his LDS have the right to refuse to teach for ANY reason. If the guy is ugly, they can refuse. It may not be the best business practice but...
At the shop I teach with, we had a *potential* student show up with a medical form which stated that he had athsma and was on medication for it. The doctor signed off that he was cleared to dive, but added his own comments after that that stated he could dive "as long as he doesn't have an athsma attack" :confused:
When the doctor was called to attempt to clear the confusion, he maintained his position. "Yes, John Doe can dive, as long as he doesn't have an attack while underwater, he could drown." :confused: I guess Mr. Doe should schedule his athsma attacks on non-diving days.:rolleyes:
Needless to say, we politely refused to teach him SCUBA. Did he go elsewhere? Maybe. But if he did, and did get training, its his funeral, and theirs. At least I won't feel guilty for training someone in a sport which, for him, is dangerous.
 
If you read your PADI Instructor Manual you would see that you do not need to accept the student. If you are in doubt don't teach him. I have had a few cases like yours, not many though. One was where the student had a condition similar to asthma. One dr gave her the ok, the other did not. The Dr NO won and the student was turned away. Hey it's your liability.
 
I had a lady who came in, and quite openly admitted to having only one lung (as the other had been removed due to lung cancer), but as she had been bungee jumping, parachuting and white water rafting, she wanted to learn to dive. She only had six months to live and wanted to know if she could finish the course in this time.

I politely refused to have her on my courses, even after she produced a medical form from her doctor clearing her to dive. She then got very upset and said that her nephew is an instructor and he said it was ok to dive. I then asked why she did not want her nephew to teach her, to which she replied ...
"Well what if something happens, he would never forgive himself. I dont want to cause him any trouble"

I hear her wheezing all the way down the corridor and out of the door when she left!
 

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