The View from the Other Side

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Posted by Ken Kurtis on February 27, 2001 at 23:30:02:

With the renewed discussion on legal liability in reagrds to nitrox, I called a friend of mine who's a retired Personal Injury attorney. It's important to know that this guy's not only a diver, but a Divemaster. This is the guy who will file the lawsuit against us on behalf of the "victim".

I outlined the scenario of the non-nitrox-certified DM supervising nitrox divers and asked him if, in the case of an accident, especially if the DM had give the wrong advice, the fact of the DM NOT being nitrox-certified would give the attorney more fodder.

His reply, in a word . . . absolutely.

He basically said that in a case like this, you're looking for things that either went wrong or seemed out of place. In the case of nitrox, you have a gas that requires additional training for it's use. It's not unreasonable to assume that, during the diving operations, questions might arise about nitrox. He felt that putting someone in a supervisory position who lacked the knowledge of how to use nitrox, could be argued to create problems that could have been foreseen and avoided.

He also pointed out that a supervisor (DM, in our case) can be considered to be an expert and will be held to a higher level of care and knowledge.

He also pointed out that when these types of cases are argued, they're not argued to the experts. They're argued to a jury who is probably not well-versed in the intracacies of, in our case, diving.

And he pointed out that these juries tend to look for obvious/overt mistakes or ommissions when they try to reach a verdict. He feels that a non-nitrox certified DM could present such an ommission.

He told me of the following REAL case that he settled for (so he said) a LOT of money.

A woman was ready to give birth. During the labor, fetal distress was detected. The standard procedure is (WARNING - this may get a bit graphic) for the doctor to stick his hand up the birth canal, grab the baby's head, and turn it slightly to relieve the distress. An emergency C-section is then performed.

The key factor is whether or not the doctor holds the baby's head properly to relieve the distress. If he does, the baby is born normally. If he doesn't, the baby suffers brain damage. The outcome is strictly based upon how well the doctor holds the baby's head in the proper position during this time.

In this particular case, the doctor stuck his hand up the birth canal ans grabbed the baby's head. He then (still holding the baby's head the whole time) ordered everyone to move to an operating room for the C-section. They went out of the delivery room, down a hall, waited for an elevator, went down a few floors, down another hall, and came to the operating room. But there was a problem.

The operating room was pitch black and hadn't been prepped for the operation.

So they went back down the hall, back up the elevator, back down another hallway, and back into the delivery room, where they managed to perform the emergency C-section. Unfortunately, the baby came out brain-damaged.

The experts on both sides agreed that the trip downstairs and back up had nothing to do with the outcome. But the jury, who found in favor of the baby and the family, focused on the time delay in doing the operation. It was something very obvious and very wrong, even if it didn't factor into the ultimate outcome.

My friend feels the same thing could happen in a nitrox case. Even though we, as experts or at least well-educated amatuers, may undertand that there's a minimal correlation between a DM not knowledgable in nitrox and a bad decision by a nitrox-certified diver, a jury may not. And the real question is . . . do you want to roll the dice?

Personally, I do not.

Ken Kurtis
NAUI Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, Ca.

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