CORRELATION BETWEEN MIXED-EXPIRED AND END-TIDAL Pco 2 : 1 ATA AIR
B. Nitrox Community Standard Of Care
Lang (ed.): DANNitrox Workshop, Divers Alert Network, November 2000
that we think applies to recreational sport users. Somebody else, the plaintiffs side in this particular case, can point to a document and to other experts saying that's far too risky because at the Navy it says 1.3 atm. Theoretically, that is a potential problem.
///. Nitrox Risk Management Discussion
the air tables as they exist and that's what they're using. The Navy didn't dive nitrox on the TWA flight 800 recovery. They were diving heliox and air. This wouldn't have made any difference any way. The Navy develops its procedures for the Navy. Everybody has to understand that. The Navy Diving Manual is a Navy publication which, by law, has to be made available as a public document. The Navy does not canvas other organizations when it changes its procedures. This is in stark contrast to the Royal Navy, where their diving manual is an official document that is not available for that exact reason. They have the advantage of being able to change their procedures and theoretically nobody else is allowed access to that document. If you have it and you want to use it, that's fine, but you're not supposed to have it.
M. Emmerman: To clarify the comment on the TWA dives, the Navy divers were using mix.
The SUBSALV commander actually denied us the right of using nitrox on that operation.
B. Oliver: I want to suggest a hypothetical scenario and this is the one in which Bill said that the plaintiff is going to hold up the existing standard, which in this case is the U.S. Navy limit.
You will defend that by using the practical standard that is derived from the scientists and the individuals that comprise this group. Would you be better served if you had a formal standard drafted by this group or would that standard also be challenged against the Navy standard by the plaintiff?
B. Turbeville: I don't think it would matter that much. I think we still have the Navy standard out there and that's still an issue we have to deal with. All that any attorney defending a sued individual instructor, agency or dive charter can do is point to the standard of care that's been followed by the recreational/sport community so successfully for more than a decade now. If the standard is in writing and it says U.S. Navy, certain jurors and certain judges will think that's got to be the bible. Dr. Thalmann is right that the Navy is free to not canvas other agencies and to set standards for its own operations. My only wish would be they would make that clear in their manual. What they are doing is very specific for their operations and for the concerns they have for their divers for what they have to do. It does not apply to what we in the recreational/sport or even technical community have to do. In the same vein, no one thinks of applying Association of Diving Contractor standards to recreational or technical diving. We don't have diving bells. We don't have surface supplied gas. Yet I have still seen some of those issues come up, for instance, in live boat diving procedures.
Experts will bring in ADC standards because they're out there and they're in print and other people follow them. It's our job to state what operational limitations or differentials there are between that community and ours. Can it be won? Absolutely, it just takes time to explain it.
K. Shreeves: Dr. Thalmann was saying that we have to say, as a sport diving community, that the Navy standard is their standard, it's not our standard. If we can do that in our communications to the dive community, we lessen the probability that Bill Turbeville will have to defend against it in a court of law.
B. Turbeville: That's absolutely right, Karl. By no means am I suggesting the Navy standard is wrong or it should be changed, that's not the point. It has to be made clear somehow through the publications themselves or perhaps through groups like this that different communities are freely entitled to have different standards based on their separate operational characteristics. Is there a cost-benefit analysis here and a risk-benefit analysis? Of course.
Lang (ed.): DANNitrox Workshop, Divers Alert Network, November 2000
There always is. The question is then what is it based upon, what are your data? Why do you have operational differences and how can you explain that to a lay public or in my case, a lay jury, in a way that makes sense when a diver has a problem diving nitrox at 1.6 atm, has a seizure, goes unconscious and drowns. I have to defend the standard of whatever agency it is. I have to say it's been a safe standard for the past million plus dives. But poor Mrs.
Goldberg, bought the farm diving on this so-called safe standard. That may happen and probably will happen because statistically someone's going to have a problem at some point in time using nitrox.
T. Mount: Bill, if the new Navy manual does have 1.6 atm for nitrox, that solves that problem anyway, right?
B. Turbeville: Absolutely. That solves the problem, yes.
E. Thalmann: Most decompression computers predict repetitive dives that are much longer in available bottom time than the Navy tables. As I understand it, nobody has yet been successfully sued for an accident on a decompression computer. Doesn't the same situation apply that somebody can go to the Navy tables and say this individual was using a gizmo that recommended much more bottom time than the Navy standard, that's the reason he got bent and therefore the manufacturer is held liable for an unsafe apparatus?
B. Turbeville: To my knowledge, no one has gotten a jury verdict against any manufacturer, but they certainly have extracted a lot of money in settlement. The only case I know wasn't even a trial, it was binding arbitration, about five years ago. Bill Oliver was at the time both my client and one of my expert witnesses. We won that one on the basis that the law does not say you must make a perfect machine. It says only that you must design out those risks you can reasonably design out and then warn against the remainder. With decompression sickness, since we know it's a probabilistic phenomenon, we don't know enough about it to say we can make a perfect device to guarantee that you won't get bent. All we can do is make the computer as safe as the community standard will allow it to be and then warn against the residual risk. In this particular case, the arbitrator, who was an attorney acting like a judge, said this guy got bent. He was following the computer, but the fact is the warnings were very clear. You might get decompression sickness even if you do everything we tell you to do. Therefore, you must be alert to the signs and symptoms and seek treatment immediately. This guy flew back to California from Cozumel after he got bent, so he lost.
The lawsuit was brought based upon the fact that he followed the computer and still got bent.
Even with nitrox, we can design out a certain amount of risk. We can't design out all risk.
Therefore, whatever residual risk there remains must be warned against and that's what the instructional agencies do.
J. Hardy: In serving on many of these computer cases in the diving field, we have the Navy tables thrown up at us constantly. I hope you caught the fact that Bill Turbeville pointed out that it has cost the industry a tremendous amount of money in out of court settlements. In fact, some of the computer programs have been changed based on considerations of the out of court settlements. It's still costing us dearly even if the case isn't getting all the way to trial.
D. Rutkowski: We keep mentioning the Navy tables and 1.3 atm. Whatever happened to the other government document, the NOAA Diving Manual? Can't you use that for defense, Bill?
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B. Turbeville. Absolutely. I have used it in the past and I'll use it in the future. The question is what are the community standards of care? I'd be careful there, though, because the NOAA Dive Manual also says some things that are fairly harmful to some of my clients' interests.
For instance, that buoyancy compensators must act as personal flotation devices and keep your head and face up under all circumstances. The problem is none can do it. None have ever been able to do it. None will be able to do it at least in the foreseeable future. I've got to say, that's what NOAA says, but that's not necessarily what the manufacturers can do.
They can't produce such a device. The NOAA Manual is one of the documents that I use occasionally, but it's used against me occasionally as well.
D. Rutkowski: The nitrox concept's been around for over 30 years. Dr. Morgan Wells started open circuit demand nitrox in 1970. In fact, Wells and I have been at NEDU teaching courses for the Navy four years ago. I don't see where you can justify going to the Navy Manual 1.3 atm when all their stuff is operational air diving, not nitrox itself.
M. Lang: Alright, let's do one more round on this 1.3 atm and then I'm cutting that off.
D. Rutkowski: 1.3 atm is for the Navy's closed circuit UBA, which is used by SPECWAR diving and trust me, it's got nothing to do with us.
M. Lang: Uncle Dick, don't make me come over there.
D. Rutkowski: I'll tell you what, let me buy shots of Scotch. The last one standing wins.