Training agency throws Instructor under the bus while misleading the court

[Wookie]

I really don't have an answer. I am truly baffled about what is going to happen in terms of liability.

I have never heard of lawsuit involving teacher malpractice or doctor malpractice or attorney malpractice that included the college that trained the individual involved. If that is the direction that scuba lawsuits will take, I don't know what can be done. How far are we away then from holding the certifying instructor responsible? If some day 10 years from now a DM that I trained misses a name in a roll call and leaves a diver at the dive site, will I be sued for that as well, even though I may have long since retired and have not maintained any liability insurance?

In the recent lawsuit of DeWolf vs Kohler, et. al., another Concannon case, the widow sued the original certifying instructor and his shop, the rebreather manufacturer, the dive boat, the charterer, the Discovery Channel, (huh?) and the training agency. DeWolf died of a heart attack, BTW. The certifying instructor and his shop settled on the advice of their insurance company and were separated from the suit. Discovery Channel was dismissed, and the dive boat never responded to the suit, and the owner died shortly after. The boat had a First Preferred Ships Mortgage, so even after a summary judgement, there was nothing to satisfy the judgement. In the end, everyone was dismissed except Kohler, who was merely the trip organizer. He won, but the widow is appealing.

DeWolf died of a heart attack.

An expert witness brought up in court (this was some guy who runs a dive shop in Austin) that Kohler isn't qualified to be a divemaster, even though he was a trimix rebreather instructor at the time. As we all know, we can be sued for anything, any time, by anyone. DeWolf's widow filed this case with days to go before the deadline for filing.

 

[fire_diver]

Padi wants instructors to teach the skills in standards, to teach beyond that is in fact a standards violation.

Can you please explain how it is possible to maintain "proper" supervision when teaching a DSD to ratio and one students bolts to the surface? Do you leave the student that bolted alone on the surface or the students that didn't underwater? Do you prevent the bolting student from reaching the surface? If yes did you commit manslaughter if he/she drowns?

It is a reasonable to expect a student to bolt on a DSD, it is common. It is unreasonable to have standards that when dealing with the common and likely make you in violation of said standards. You are being set up to fail, or more likely IMHO set up to take the fall.

A very good friend and former PADI instructor was slapped with this exact problem! One student bolted to the surface during skills practice. Vis allowed him to see the bolter was on the surface and not falling down, drowning. He took the other student to the surface to verify bolter was OK, and try to continue the skills. Somehow, someone made a complaint to PADI and they raked my friend over the coals. After clearing his name and his actions he gave the finger to PADI and changed agencies.

 

[mathauck0814]

I really don't have an answer. I am truly baffled about what is going to happen in terms of liability.

I have never heard of lawsuit involving teacher malpractice or doctor malpractice or attorney malpractice that included the college that trained the individual involved. If that is the direction that scuba lawsuits will take, I don't know what can be done. How far are we away then from holding the certifying instructor responsible? If some day 10 years from now a DM that I trained misses a name in a roll call and leaves a diver at the dive site, will I be sued for that as well, even though I may have long since retired and have not maintained any liability insurance?

You solve this by doing two things:

1) Making course directors and instructor trainers responsible for the Instructors they cert.
2) Requiring instructors (and ideally divers) to recert on a biennial basis (and pay for it)

Instructors are churned out at breakneck speed from instructor mills with no repercussions and even if those instructors are of a certain quality when certified, they're not intending to be instructors and don't teach very often so a few years from now they do decide to take a friend on a DSD (because hey, they've cut a check every year and paid their dues and they remember most of what they were taught in Thailand or wherever) and bad things happen.

It also solves the problem of too many instructors in the industry. Some will simply not renew and the pool will shrink on account of the attrition others won't have the time or see the value in the economics of participating in a valid recertification (the agency will be kept whole because it'll make up for lost dues via the recert fees it collects).

My $0.02

 

[Dr. Lecter]

You solve this by doing two things:

1) Making course directors and instructor trainers responsible for the Instructors they cert.
2) Requiring instructors (and ideally divers) to recert on a biennial basis (and pay for it)

There's already a significant number of divers seeing a large gap between costs of the collective certs "required" to do the dives they want to do/are doing, and the value added to their diving by that training...and you think making it a recurring cost is going to make things better? Ha.

 

[flots am]

A very good friend and former PADI instructor was slapped with this exact problem! One student bolted to the surface during skills practice. Vis allowed him to see the bolter was on the surface and not falling down, drowning. He took the other student to the surface to verify bolter was OK, and try to continue the skills. Somehow, someone made a complaint to PADI and they raked my friend over the coals. After clearing his name and his actions he gave the finger to PADI and changed agencies.

Mandatory maximum ratios that are more than 1:1 are a "setup to fail" problem.

Even completely ignoring standards, It's simply not possible to safely do OW Checkout dives with more than one student, without assistance.

At some point, someone is going to bolt or have a problem or get lost or whatever and then the decisions get ugly.

flots.

 

[Jim Lapenta]

They don't have to. But it does take drilling the students in proper buddy procedures over and over before taking them into open water. Then you need to make sure that they follow them. One of the biggest things I see at local training sites that gives me nightmares is instructors leading divers on checkouts single file. Even with a DM or two in the water. I have seen as many as 8 OW students bouncing blissfully along behind an instructor with a DM bringing up the rear. The only one under supervision in this case in my mind is the one directly in front of the DM. He can grab that one. Everyone else is potentially dead.

---------- Post added August 27th, 2014 at 04:41 PM ----------

Oh and I never take more than 2 on the first two dives. regardless of how good the vis is. If it's poor then one on one and two. On three and four they buddy up. At some point you have to have them buddy up to see how they do as a team. Because next weekend when they go diving you may not be there to supervise each one.

 

[Scott]

You cannot maintain 8:2 ratios in a mudhole in Utah.

Or 4:1, 3:1 or 2:1
In the early 90's and friend and fellow instructor conducted the program at this camp. His ratio 1:1
Around '95 he had a career change that left him with the decision to step away from the contract. My wife who assisted when needed maintained the contract for the remainder year and both of us for a few years there after. Our ratio 1:1
We didn't care if there was a standard that allowed higher ratios, it was based on the environmental conditions.
Some days you would be happy with even a mudhole.

 

[cerich]

Hmmm, OK

When I did my crossover to PADI it was made quite clear at the time that we were not to exceed standards. I've read the letter you refer that came out and I got the impression that by exceed the standards they are discussing more water time and more repetition of skills, I did not get the impression we could add skills. If I was wrong, I need to look at it again. I am sure I am biased because when I did my crossover I felt the approach of do until they show you the skill good once and move on, and never exceed the standards was wrong quite frankly. But I needed the PADI instr rating working in the islands so...

So...in the context of a DSD what skills can I teach beyond those in the standards? Can I do it with Nitrox? CESA? Yes I am being a little silly, but honestly isn't that setting up the instructors to fail? (and this is not exactly limited to PADI BTW)

That's not at all true, Chris.

PADI does not allow an instructor to withhold certification because the student fails to do something beyond the standards. Not only can they teach additional stuff, they are encouraged to do so. An article written by its President and CEO explaining this is required reading for instructors during their training. There is no certification involved with DSD.

The DSD course does several things that must be taught, including inflating a BCD to attain buoyancy at the surface. It does not specify a number of things that would normally be considered basic fundamentals of diving. It does not specify teaching how to put on fins or clear a regulator, either. These are common sense.

Here are the ssections of the standards related to ratios and supervision:

 

[markmud]

You solve this by doing two things:

1) Making course directors and instructor trainers responsible for the Instructors they cert.
2) Requiring instructors (and ideally divers) to recert on a biennial basis (and pay for it)

Instructors are churned out at breakneck speed from instructor mills with no repercussions and even if those instructors are of a certain quality when certified, they're not intending to be instructors and don't teach very often so a few years from now they do decide to take a friend on a DSD (because hey, they've cut a check every year and paid their dues and they remember most of what they were taught in Thailand or wherever) and bad things happen.

It also solves the problem of too many instructors in the industry. Some will simply not renew and the pool will shrink on account of the attrition others won't have the time or see the value in the economics of participating in a valid recertification (the agency will be kept whole because it'll make up for lost dues via the recert fees it collects).

My $0.02

Hello Mathauck0814,

I think you should think in the macro verses micro plane of thought; there is a bigger problem that needs to be addressed. We as a nation desperately need TORT reform. Lets not make SCUBA diving a total pain-in-the-A and very expensive.

Also, we need to re-educate our citizens that they are ultimately responsible for their lives. I am talking about personal responsibility. As a student, I make sure I am diving with a qualified and responsible instructor. As a trainee, I do my due diligence. I did dive with a poor excuse for an instructor; however, I had done my due diligence and was prepared to be responsible for myself--"caveat emptor" (it was not an OW class).

However, a negligent instructor, one who removes a BCD from a student and then allows the student to sink like a lead-borne rock (because he had a weight belt on) is negligent. Failing to perform your job in a workmanlike and professional manner that results in a corpse-filled-body-bag is grounds for a TORT. Leaving a diver in the water and shifting the boat to another dive site is grounds for a Tortious claim. Not teaching your student to ditch his weight belt is a failure to be a responsible instructor.

Suing your original instructor from 10 years previous? No, I don't think that is societally responsible. Suing PADI over a minor deviation in curriculum, or for a procedure that "an ordinary person" would conclude to not be prudent...no way.

My 2 cents.

 

[Wookie]

HHowever, a negligent instructor, one who removes a BCD from a student and then allows the student to sink like a lead-borne rock (because he had a weight belt on) is negligent.

I believe that's gross negligence, not negligence. Negligence can be waived, and is. Gross negligence cannot, and is certainly exemplified by your example.