Nitrox workshop dings - Divers Alert Network

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Rubicon Foundation Archive (http://rubicon-foundation.org)Lang (ed.): DAN Nitrox Workshop, Divers Alert Network, November 2000can call nitrox a product, claim that it was "manufactured" improperly, they've just gottenaround the waiver, which is our first and most important line of defense.J. Hardy: The next issue is O2 cleaning of equipment by the dive store in their repair and servicedepartment.B. Turbeville: That's more on the negligence side. This is nothing that's terribly new. I don'tknow of any significant cases that have come out of any of these issues yet, frankly. As faras an overall view, I should have probably said up front that I don't believe nitrox is a legalissue at all. It really isn't. It is a very minor portion of what I have to do in my practice,which is 100 percent in the diving field. Of much greater concern to me are things like notrunning out of air, not holding your breath going to the surface, and making sure that studentsare under the control of an instructor at all times. If you don't O2 clean properly, you're backin the same boat as a dive shop that doesn't do good maintenance on the regulators. You arenow liable, not for product liability, but for negligence. That's something, by the way, thatyou can probably get around with a waiver.J. Hardy: The next item would be training in nitrox use.B. Turbeville: If there's ever any litigation that's going to center on the training aspect, assumingthat they get past the release somehow, teaching nitrox or teaching air would be the same.That is, what is the standard of care and was is it reasonably followed in this particular case?That's where I get back to the concern we've just addressed about what is the standard of carefor our community. Is it appropriate or even proper to bring in the standard of care fromother communities? If so, why? There's no easy answer to this. All I can tell you is that itsimply isn't even a blip on the radar screen yet. The operational use of nitrox is not posingany significant problems for us in the legal field to defend. We just don't see the cases.M. Lang: You don't see the cases because they don't go to trial due to pre-trial settlements?B. Turbeville: No. There have been claims filed. In fact, I'm defending a couple where nitrox isat issue, but only on the technical end where everyone agrees that somebody breathing 32percent at 220 feet is a problem. But that's not an issue of nitrox as we're discussing it here.That's an operational and a supervisory consideration.J. Hardy: The supervision of nitrox divers gets complicated because you have, for example, aDivemaster on the vessel supervising some people diving air and some diving nitrox. Whatare the potential implications of that?B. Turbeville: That could be a tricky issue depending upon the standard of care for the charter.Divemasters are an area of the diving field that I don't think anyone's ever gotten a handle on,because Divemasters wear so many different hats. The obligation of a Divemaster dependson whether he is assisting a class, is the on-board individual responsible for checking peopleoff and checking them back in, or is an underwater tour or group leader. Let's say you havea Divemaster on one of the California charter boats with 25 or 30 divers going in the water.On this particular boat they've always had the Divemaster record times in and out. Unlessthose divers are following computers, they're basically following the tables based upon thetimes given to them by their Divemaster. If some are using nitrox and some are using air,that becomes a very difficult situation for that Divemaster. Is that a particularly heinousproblem? I don't think so. I think you break it down into individual cases. But theoretically,if you're making a law school exam, you could make a pretty intriguing problem there.112
Rubicon Foundation Archive (http://rubicon-foundation.org)///. Nitrox Risk Management DiscussionJ. Hardy: Let me press you a little bit further, Bill. I've served on cases, going back on air now,where they said the Divemaster took the time in the water, took the time out and recorded thedepth of the dive. By doing so, the Divemaster has now taken responsibility for that dive.Lo and behold, the dive was executed on a computer, but what was thrown up in our facewere the dive tables.B. Turbeville: That is absolutely a problem, Jon. It's one of those situations that you can neverreally get around. The fact is either the Divemaster is going to do too little or too much,depending on which way the plaintiffs lawyer wants to bring the case. If you make thisDivemaster the be-all and end-all for dive safety, you've put an enormous burden in his or herlap, one that cannot be maintained. Some operations have taken the opposite tack and theysimply say our Divemaster is basically a deckhand. The Coast Guard requires a deckhand,which is what our Divemaster does. He will help you on and off the boat, assemble tanks,pick up dive weights if you need them, but, folks, once you get to the dive platform, you'reon your own. Now if that's made clear, that is a defensible standard. I can also guaranteeyou that we'll have someone come up there and say, wait a second. In this other communitywe have back in California or Hawaii the Divemasters typically are group leaders, tourleaders and they follow you like hawks under the water. They are the Dive Gestapo. That isone standard of care. Unfortunately, the Dive Gestapo have been thrown in our faces beforewhen other operators wanted to give people the ability to do what certified divers should beable to do, which is dive by themselves. But you're right, Jon, no matter which way you go,there is always an opposing viewpoint.J. Hardy: After we've sorted our way through all this and the plaintiff can't find any other way tosue us, they come up with the theory that no matter what happened with nitrox or air, thefailure to rescue becomes an issue.B. Turbeville: The failure to rescue is like failure to warn in product cases. That's where badcases go to die. It's really a bad claim for the most part because the fact is that most peoplewho are dead, stay dead. It's hard to revive the dead. We've had lots of cases where peoplehave been dead for some period of time and then the plaintiffs expert will say, but if onlyyou'd done CPR in this fashion, if only you'd added oxygen to the CPR equation, perhaps wewould have revived this person. Ladies and gentlemen, I'm no doctor, but I do know this:typically people don't rise from the dead. If you look at the statistics that we've put in frontof judges and juries, such as the one done in Seattle recently, the fact is that those who arealready unconscious, are not breathing and don't have a heart rate, are clinically dead for allpractical purposes. With the failure to rescue, if the person is struggling on the surface andwhile they're struggling there's a problem with getting the tow rope out or the boat can't breakanchor and they drown while they are under view, that's different. That is probably a goodclaim depending upon the circumstances. When you find somebody on the bottom withregulator out of their mouth and for all intents and purposes they're no longer alive, to saythat if only you had done something more, is very rare to lose a case like that. The data that Ihave seen show that you don't revive many of these victims.J. Hardy: To round it out, we have the sale and rental of "O2 clean" nitrox equipment.B. Turbeville: That gets you back to the manufacturing standard. Product liability in thiscountry is governed by Restatement of Torts, Section 402(a), a 1964 standard of the113
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Nitrox workshop dings - Divers Alert Network

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