Who is right? Who is wrong?

[frontiernurse]

A little off topic, but... As a primary care provider who would be the one signing a medical waiver, I wonder if I could be liable if I signed someone off and they died. I've never had to do that, but because I dive I've talked about it with other providers. No providers I know will "clear" anyone for diving who isn't 100% healthy, mostly because they have no idea what diving entails. I'd feel comfortable stating what a person's condition is and make an educated guess at their risk of dive-related medical injury (low, moderate, high), but there is always a risk. Would any agency allow anyone to dive without a "risk free" statement from a provider? Most providers (unless they are dive specialists which are hard to find) won't even touch those forms.

 

[boulderjohn]

A little off topic, but... As a primary care provider who would be the one signing a medical waiver, I wonder if I could be liable if I signed someone off and they died. I've never had to do that, but because I dive I've talked about it with other providers. No providers I know will "clear" anyone for diving who isn't 100% healthy, mostly because they have no idea what diving entails. I'd feel comfortable stating what a person's condition is and make an educated guess at their risk of dive-related medical injury (low, moderate, high), but there is always a risk. Would any agency allow anyone to dive without a "risk free" statement from a provider? Most providers (unless they are dive specialists which are hard to find) won't even touch those forms.

I am not risk-free, and I have never had trouble getting a doctor to sign. No one is risk free, and the fact that you need to have the doctor sign it guarantees that you have some risk and understand it. Therefore, ALL agencies allow people to dive without a "risk-free" statement, and I have never had a student even hint that there was trouble getting the form signed.

 

[kaerius]

I'm with Joe^ above. I think that the sanctions were appropriate.

PADI (I assume that the cases were PADI as you use the term "DSD", which is a PADI term) provides very clear standards for conducting SCUBA experiences for non-certified divers/students. It doesn't matter in case number 1 if the student wrote you a blank check and told you to cover your expenses if something happened to him, you don't take a student diving if you know there is a contraindication to diving, which the dive center strongly suspected if they refused the diver a number of times due to his obesity. When you get a feeling about something, you go with it. You don't hope it will go away with some home grown liability release.

In case 2, DSDs must be performed by an instructor. DM's may only assist. It sounds like standards were broken in each case, and PADI took proper action for broken standards.

DM's can do DSDs on their own with a bit of extra training(DSD leader), which I assume is the case here, though they are limited to 4 students in pool and 2 in open water if my memory serves me right. However a standard was broken if this was the first dive, which has to be made in pool-like conditions(good vis, no current), and I suspect the DM was not close enough to immediately correct problems, which is also a standard(IE: he should've been close enough to shove a reg in the students mouth within reaction time of the problem happening, 1-2 seconds tops). I've dealt with panicked divers before, and had to shove their reg in when a DSD spat it out once.

 

[boulderjohn]

DM's can do DSDs on their own with a bit of extra training(DSD leader), which I assume is the case here, though they are limited to 4 students in pool and 2 in open water if my memory serves me right..

DMs cannot do it in the open water---it has to be an instructor.

 

[DCBC]

... Share your opinion about the case, just asking. Thanks.

First of all, I'm not a lawyer, but have acted as an expert witness for several recreational and commercial diving deaths in a number of jurisdictions. As you have already received several good answers to your questions, I might just add:

1/ In civil litigation, much is dependent upon the jurisdiction and personal opinion of the Judge/Magistrate/Jury. In-fact, they are the one's whose opinion matters. Because of this, no one can predict the outcome of a case; however logical one conclusion may seem.

2/ The strength given to a liability waiver is also dependent on jurisdiction. Generally speaking, it often requires informed consent. This means that the waiver must be given based upon a clear appreciation and understanding of the facts, implications, and future consequences of an action. In other words, the person signing the waiver must be in possession of all relevant facts at the time consent is given.

So if we try to apply this, we first have to ask ourselves is it reasonable for a non-diver to be in possession of all the relevant facts of the extent of the risk diving entails? Just based on what I've seen, in the case of death having a liability waiver isn't reassuring.

3/ If an Instructor/Divemaster conforms to all certification agency requirements, that does nothing to release them from liability. For one Agency to state X is needed, doesn't excuse the Instructor from acting in a manner that is deemed reasonable under the circumstances by the Court. This is why various 'Experts' are used to establish the Duty and Standard of Care.

 

[kaerius]

DMs cannot do it in the open water---it has to be an instructor.

Just rechecked standards: DM DSD leader can do followup dives with them in open water after they've done 1 dive with instructor in open water, max ratio 2:1. So the DM can do a the confined training, then the student(s) can follow an instructor on one open water dive, and then the DM can take over for future open water dives.

They can also do "confined open water" at a 2:1 ratio without any instructor help at any point. Some house reefs may qualify(calm lagoon).