Worsening insurance crisis

[rmssetc]

Apropos this discussion: Can We Create A Safety Culture In Diving? Probably Not, Here’s Why.

 

[Jim Lapenta]

On the lying on the medical form issue -

Some years back there was a Boy Scout diving class in the Midwest. The 11-13 year old boy had asthma. His parents lied on the medical form. He died during OW dives. I can’t remember where I read about it. Might have been here. Don’t remember if there was a lawsuit or not. Bad enough when divers themselves lie on the form, but a parent? Those parents didn’t have a leg to stand on for a lawsuit, IMO.

That was the Tuvell case and it was widely discussed here.

Parents sue Boy Scouts for 2011 negligence death

It looks like a slam-dunk since the Instructor left the two children below on a Discover dive. Here is the Accident thread: http://www.scubaboard.com/forums/accidents-incidents/389241-utah-boy-scout-drowns-diving-bear-lake.html From Parents of boy who drowned filed lawsuit against Boy Scouts...

scubaboard.com

I have a number of case exhibits in my library and in the files section of the accidents group on Facebook.
Including the testimony of Al Hornsby from PADI who argued that only a few people had died in DSD's so there was no need to change the ratios to 1 to 1 or 2 to 1.
I took that to mean there was an acceptable number of dead participants to him.
It was also the case that insurers looked at and told agencies that if they didn't reduce ratios for DSD's they would not cover them.
SEI and SDI both lowered ratios for DSD's.
PADI did not.

 

[Subfiend]

Thank you Subfiend for the information, I wanted to find the studies to research all the medical lingo, but your reply gives me a place to start.

This diving hobby is supposed to last us until the golden days, I want to make sure we are prepared and not putting ourselves in harms way.

Not to punt, but the articles are out there if you look for them. I am buried this week and I don't have time to look for them. This article I wrote has citations to some of the studies: Legal Issues with Diving Fatalities

This article is the gold standard, but it has been updated since its initial publication: Denoble PJ, et al. Common causes of open-circuit recreational diving fatalities. Undersea Hyperbaric Med., 2008; 35(6):393-406.

Here is another one of my articles that can lead you in the right direction: Rebreather Accident Investigations

 

[Subfiend]

That was the Tuvell case and it was widely discussed here.

Parents sue Boy Scouts for 2011 negligence death

It looks like a slam-dunk since the Instructor left the two children below on a Discover dive. Here is the Accident thread: http://www.scubaboard.com/forums/accidents-incidents/389241-utah-boy-scout-drowns-diving-bear-lake.html From Parents of boy who drowned filed lawsuit against Boy Scouts...

scubaboard.com

I have a number of case exhibits in my library and in the files section of the accidents group on Facebook.
Including the testimony of Al Hornsby from PADI who argued that only a few people had died in DSD's so there was no need to change the ratios to 1 to 1 or 2 to 1.
I took that to mean there was an acceptable number of dead participants to him.
It was also the case that insurers looked at and told agencies that if they didn't reduce ratios for DSD's they would not cover them.
SEI and SDI both lowered ratios for DSD's.
PADI did not.

I defended the Tuvell case. The boy had multiple respiratory issues and constant upper respiratory infections in the months before he died, he had been treated for a severe respiratory infection just six weeks before he died, he had all the symptoms of asthma but was not formally diagnosed with asthma because he didn't go for a spirometry test, and his mother -- a nurse and respiratory therapist -- had a physician's assistant, who had never examined him and knew nothing about diving, sign off on the medical form. The boy died of an AGE before he ever made it to the surface.

There was a boatload of misinformation posted about the Tuvell case on SB. We don't need to relitigate that case here. However, the fact is, the boy was medically unfit to dive, even by the standards of the family's own medical expert. And yes, in case you're wondering, the case contributed to Willis pulling out of insuring the diving industry.

 

[drrich2]

This article I wrote has citations to some of the studies: Legal Issues with Diving Fatalities

Thank you for sharing this. It's valuable and worth the read. I'll mention several bits from it here. It's regarding a DAN diving fatality workshop from April 2010 (nearly 13 years ago) with a panel of 5 attorneys noted to have decades of experience investigating scuba fatalities and litigating dive accident cases.

"Every year, approximately 125 divers die in the North America, Europe and Asia. Of this number, between 50 and 60 scuba divers die in the United States.[ii] Figure 1 shows the number of scuba fatalities is trending upward after remaining static for several years."

Thanks for the numbers. I wonder what they look like now? I'd expect a temporary dip from the COVID-19 pandemic suppression of the dive industry.

"It is worth remembering that scuba diving is an inherently risky sport. The human body is not designed to function underwater, and the risk of injury is present in all physical activities. All divers are taught the risks of scuba diving in their initial training and throughout any advanced level training they may take. All divers must understand and accept the risks of scuba diving before they ever enter the water, and be prepared to overcome any adverse events that may befall them once they enter the water. All divers are taught to “plan your dive and dive your plan,” not to dive beyond their training and experience levels, and that overconfidence kills.

Scuba diving is also a relatively safe sport. As one study pointed out:

In a survey of 444 subjects, for example, scuba diving was ranked as more risky than snow skiing but less risky than bungee jumping, rock climbing, motorcycle racing, hang gliding, cliff jumping and sky diving. In fact, the actual likelihood of injury in open water recreational diving seems to be 100 times less than the likelihood of injury in snow skiing.[10]"

Appreciate the comparisons. Wonder how those activities are doing in terms of the insurance industry?

"Consequently, all of the panelists felt that there isn’t really a “problem” of divers dying underwater, because some fatalities are inevitable in a sport involving some degree of risk and with millions of dives being performed every year. However, there is a very real problem of divers not following their training or diving within their experience levels, and this is the underlying cause of a majority of accidents. Additionally, medical issues such as cardiac and obesity are an important part of the problem,[11] and divers bear primary responsibility for assessing their individual health and fitness to dive.

Mark Hruska observed that, in 25 years of litigating diving accident cases, 90 percent of these cases were simply the result of diver error. The other panelists expressed similar figures: between 85 and 90 percent of the hundreds of cases litigated by the panelists were caused by diver error."

If I understand correctly, as of April 2010 the panel didn't seem to think the issue was an excessive number of fatalities, but rather uncertainty in cause of death leading to litigation. This surprised me:

"Uncertainty Leads to Litigation

Very few cases are cut and dry, where fault and responsibility are clear. Consequently, the Legal Panel members universally expressed their belief that uncertainty about what causes divers to die, how events may have unfolded underwater and the inability to accept responsibility for making mistakes, are the major factors that cause a diving accident to develop into a diving lawsuit. Simply put, uncertainty leads to litigation.

Furthermore, the greatest number of diving fatalities occurs in older divers; in other words, the primary bread winners of the family.[4] These fatalities can be financially devastating to surviving family members. Consequently, families of injured divers often sue to recover lost income, loss of consortium and money for pain and suffering that the family members incur due to the loss of a loved one. When the cause of death is uncertain and families are financially devastated by the loss, litigation is a virtual certainty, regardless of who may be at fault."

Since in the U.S. the burden of proof is on the plaintiff, I'd have thought ambiguous circumstances where cause of death isn't evident wouldn't lend themselves to lawsuits, but the panel indicated the opposite. Like this:

"Craig Jenni observed: “when we see drowning on an autopsy report and family members of a decedent diver see drowning, there is a presumption and misconception among the general population that a dive professional should have somehow intervened much like a lifeguard would at a pool. And so that creates a burden of responsibility from a defense perspective to establish why exactly this person drowned as opposed to a simple drowning that could have been prevented such as at a pool with a lifeguard.” Furthermore, a great deal of litigation that we have seen recently is simply because family members, loved ones, are angry. It is a normal emotional response to the loss of their loved one. They want to hold someone else accountable.”

This desire to hold somebody accountable causes prolonged litigation, particularly where scant information is available to show what happened to cause a diver’s death."

Love this bit - "Like bats that live in the darkness of caves, lawyers thrive in the gray areas." And this - "Finally, one questioner remarked that some divers seem to think it is their Constitutional right to go diving, regardless of their health and other limitations, and there was little that could be done to keep some people from becoming statistics."

---

@Subfiend - You're busy and may not have time to respond to this. I'm curious whether you think dive fatality rates have gone up substantially vs. 2010? Are things more dangerous, or are we just in a more litigious society?

---

P.S.: While my focus is on the U.S., I was amazed at this part:

"In Europe, the burden of proof rests on the diving professional to prove they were not at fault in causing a fatality; automatic liability is assumed on the part of the professional when selling package travel. In other words, the dive professional is guilty until proven innocent.

Francois Jaeck provided a summary of a legal regime in Europe that affects more than 500 million people. In June 1990, the Council of Europe enacted a directive on package travel reversing the burden of proof between a professional and a consumer. Previously, the injured diver had the responsibility of proving that the dive professional was responsible for causing their injuries. Now, however, automatic liability of the professional is assumed when selling a travel package. To date, over 27 countries have amended their domestic legislation to comply with the directive. The European regulation has drastically changed the rules by stating that tourism actors can be declared responsible even if they have not committed any fault. If the professional cannot demonstrate the real cause of the accident, and that this cause is attributable to the diver, the professional will be automatically responsible. In Europe, it is no longer a demonstration of fault or negligence which determines the outcome of the trial in a scuba case, but the demonstration of the cause of the accident. Consequently, dive professionals have placed a much greater emphasis on the immediate collection of evidence to escape automatic liability in the event of a future legal proceeding.[7]"

I don't know what all countries this covers in Europe; are any popular dive destinations amongst them? Anyone know?

 

[Mod63]

I don't know what all countries this covers in Europe; are any popular dive destinations amongst them? Anyone know?

Spain, France, Italy, Croatia, Malta, Zypress, Austria, Germany

and even I have not heard of that law until now, maybe because it applies to a tour package...

 

[Subfiend]

When I led this panel in 2010, I was handling primarily technical diving cases and fewer recreational diving cases. Then, I primarily represented training agencies and rebreather manufacturers. This ratio flipped somewhere around 2014, and we have handled mostly recreational diving cases since. Now, I don’t represent any training agencies and the rebreather manufacturers formed RESA, of which I am General Counsel, and changes RESA implemented to reduce fatalities seem to have led to a reduction in CCR fatalities.

I never counted the number of scuba fatality investigations I was involved in during before March 2020, when the Covid pandemic began. On average, it was probably 12-15 per year, often internationally if the death involved a CCR diver. Suddenly, during Covid, I saw a large spike in the number of fatalities that I was asked to investigate or assist with the investigation. I was involved in 21 fatality investigations in just nine months, all in North America. This number has tapered off some, but I am up to 35 since I started counting just about three years ago.

My sense is there are more fatalities today, but maybe it’s just that I am seeing more because I am in a different area? Then again, the training agencies’ lawyers see all the fatalities involving their members because they see all the incident reports. I don’t anymore. Even so, why am I involved in more incidents than I ever was before?

If the DAN Fatality workshop were held again today, some of what I said and wrote then would still be true, and some would have changed. Personally, I am seeing a lot more health-related fatalities. Very, very few involve equipment malfunctions, and those that do often involve poor maintenance or improper set up or use of the equipment. Sadly, a lot of the new incidents I am seeing involve inexperienced divers or students. AOW has become the new DSD.

With the increasing availability of downloadable dive computers, and dive computers with more sophisticated features, it is rare that you cannot tell what happened to the diver underwater. Not surprisingly, many of the cases I have had, including all of those that went to trial (Barrett, DeWolf, Skiles), and recently Mills, have involved missing dive computers. In a case that will go to trial this September, the Medical Examiner refused to look at the dive computer data and the conclusion he reached is actually the only cause conclusively ruled out by the dive computer data. The cost of defending and trying cases like this is not helping to solve the growing insurance crisis.

 

[Mod63]

Did some digging, and "COUNCIL DIRECTIVE of 13 June 1990 on package travel, package holidays and package tours (90/314/EEC)" seems to be the underlying law; it has been superseeded since with "DIRECTIVE (EU) 2015/2302 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC"

The important thing to know is that it does not matter where the service is provided, but where the contract was made. To give an exampel how the law applies in the real world: A traveller booked a package tour (flight and hotel). He then cut his foot an a broken tile in the hotel pool. While the travel agent had to give him a deduction on the travel cost (because the broken tile was a deficency) he was not entitled to compensation of damages.

 

[Subfiend]

Side note: I am fully aware that, by taking on the Mills case and by posting honest comments here, I am likely making myself unemployable to many in the dive industry. That fact and $4 will get you a cup of coffee at Starbucks. That’s how much it means to me. I just don’t f***ing care.

 

[wetb4igetinthewater]

AOW has become the new DSD.

Mic drop.

I read your post Legal Issues with Diving Fatalities. I think about the deaths in my area, specifically with Seattle Scuba, where students were lost during training (see Home | Seattle Scuba Info).

Ms. Flores-Perez failed to ascend in an OW course with a 2:4 ratio. Now they were diving in Cove 1, an extremely silty site (though more rocky in the shallows). I was actually diving in Cove 3 that morning, but I was gone before the tragedy took place.

Ms. Xu was lost during an AOW night dive in Cove 2 (another very silty site) where it was 2 instructors and 7 students.

Both young women drowned. However, how should these deaths be categorized? How do you categorize loss of a student?

I have stated a number of times that ratios are too lax, however, in the case of Ms. Flores-Perez, a 2:4 issue is quite safe. However there is something else at play here. It is difficult/impossible at times, to keep track of students in silty conditions. This is why I started giving students dive lights even when I was a crappy, on-the-knees instructor. They would kick up a cloud of silt and I'd go to the bright spot and take them into where the water was clear and resume. I don't understand why the use of dive lights is not standard issue for open water courses in the Puget Sound. I believe this is gross negligence (and I know that statement may set off some local instructors). In this fatality, the instructor/dm had insufficient gas to descend and look for Ms. Flores-Perez.

In the case of Ms. Xu, each instructor had to count 8 lights: 7 for the students and 1 for the other instructor. Did they count someone twice? The maximum number of students that should be in a group at night should be 4 students max. These should have been 2 different groups: 1 with 3 students, the other with 4. Would that have resulted in Ms. Xu not being lost? Not guaranteed but more likely. Again, I know people will take exception with this, but I still believe a high light count at night is recipe for a fatality.

Now if I did drugs, I would hope for the WRSTC to convene and discuss what changes (if any) could be made to mitigate fatalities. But as I don't do drugs, I will never hope for that.

Side note: I am fully aware that, by taking on the Mills case and by posting honest comments here, I am likely making myself unemployable to many in the dive industry. That fact and $4 will get you a cup of coffee at Starbucks. That’s how much it means to me. I just don’t f***ing care.

And you are making yourself more employable to clients with ethics.