DAN’s Fatality Workshop

In our May issue, John Bisnar, an attorney from Irvine, CA, who was a guest aboard the Galapagos Aggressor II for a February 2010 trip, wrote the account of a diving death of a passenger, a PADI divemaster on her first dive of the trip. His account raised several interesting and thought-provoking issues about current industry practice, diver qualifications and whether some fundamental changes might be in order.

The circumstances that precipitated the diver’s death had been specifically identified in advance as potential accident issues by Undercurrent contributor Bret Gilliam, who had provided input to Divers Alert Network (DAN) eight months in advance of its fatality workshop conference, held in early April. Gilliam’s prescient preamble to his paper was rejected, ostensibly for fear that his comments could raise the ire of some industry attendees.

DAN’s workshop was two months after the Galapagos Aggressor II death. The workshop’s mission was to provide a forum to identify and discuss why divers are getting injured and dying, with a goal of adopting revisions to some practices if necessary. Panels with speakers on accident investigation, medical considerations, legal ramifications and risk management, insurance coverage and underwriting, and training agency standards and practices were to be on the program, suggesting an opportunity for informed discussion and objective practical conclusions.

But several attendees and speakers believed those goals were not accomplished. One speaker, who asked to remain anonymous, noted the presentations were disproportionately stacked with PADI senior management, employees and lawyers. Other agencies were represented by a single spokesperson, and NAUI didn’t even have a person there. Another said attendance was slight. “It looked like the majority of the audience was from government or academia and had someone else pick up their $350 tab. I doubt if total attendance was even 100 persons.”

“Your Candor Could Be Embarassing”

Gilliam was initially asked to present a paper and become a panelist. Gilliam, a 40-year veteran of the diving industry, founded the TDI/SDI training agencies, for which he crafted their standards and procedures for instructors and students, training manuals and operational protocols for their facilities, including resorts and liveaboards. He had served as chairman of the NAUI board and has been a litigation consultant and expert witness in more than 230 lawsuits. He wrote the article “Anatomy of a Diving Lawsuit” that appeared as a two-part feature in our September and October 2009 issues.

Gilliam told us that “I was asked to be a presenter on risk management, litigation issues and how the industry should address ways to reduce the accident/fatality rate. At my suggestion, Peter Meyer of Willis North America Inc. was added to address concerns from the insurance industry. Meyer is a principal brokers for Lloyd’s of London underwriting syndicates and handles diving policies for resorts, retailers, training agencies, instructors, dive boats and liveaboards. We both prepared papers that would accompany our presentations. The problems started when I submitted mine.”

Gilliam’s paper was a 35-page, four-part treatise on examples of divers exceeding their capabilities and expertise, the trial analysis of the New Orleans case he had outlined for the Undercurrent article, and a detailed explanation of risk management realities for diving professionals (including the use of waivers and releases). His opening preamble, called “Elemental Issues of Accident Causation,” cited 13 areas he believed needed reform. Although only two pages long, Gilliam said it proved to be a major matter of contention to DAN’s workshop organizers.

“I got a call from a senior DAN official who told me my candor could prove embarrassing to some of the training agencies and operators that would be attending and also presenting. I was asked to delete that section to avoid ruffling their feathers. I pointed out that I had made no reference to any particular training agency, operator or business. My comments were directed at the industry as a whole. I have nothing but respect for DAN and think they do a good job of trying to address safety issues and provide hotline response to accident calls with competent medical staff available. I told their representative a fatality workshop was exactly what the industry needed, and urged DAN not to limit the input for politically correct reasons. It would defeat the purpose.

“But they had read Peter’s paper as well and said we both needed to soften our message. Rather than dilute our opinions, which were fact-based, we decided to withdraw from the conference, though we did help them with other matters for the workshop. My frustration is not directed so much at DAN, whose intentions were conceptually good . . . but at the industry in general and specifically at those that wanted DAN to stifle an unbridled commentary to help implement needed changes to improve safety.”

Peter Meyer said, “We both have access to details of fatalities no one else does, due to our hands-on involvement in litigation. But like Bret, I wasn’t comfortable with being censored in advance. So I opted out of attending as well.”

“A Well-documented History of Avoidance”

Brian Carney, President and CEO of International Training Inc. (owner of TDI/SDI and its public-safety training division ERDI) was on the panel of presenters about training issues. “It seemed every time a question was posed to the legal or insurance panel, no one wanted to make a definitive statement. None of the panelists could agree on anything. No one seemed willing to go on record about what things needed change. Even those audience members who offered spirited critical input were looked at as if they were intruding on private company policies instead of framing the debate along known problems that have to be addressed.”

Meyer says, “Our industry has a well-documented history of avoidance. We hide from what we all know (or should know) about the real risks and responsibilities of what we choose to do and continually try to shift our responsibility to others, whether or not they are able or competent to accept it. The operators, instructors and training agencies need to be more proactive, reasonable and prudent. And then they just might be able to avoid accidents from the start.

“It’s a no-brainer. Spend huge sums on your defense in litigation, or act obviously responsible enough so that nobody wants to sue you? It should be a sobering look at the real perception the public has of our industry, and it should prompt some serious self-evaluation and change.”

Carney said DAN did not have the training agency sessions recorded for later transcription and inclusion in any proceedings’ document. He says it’s hard not to conclude that this was not due to concerns over future lawsuits.

Undercurrent has obtained Gilliam’s preamble to his paper; which follows. Truth is, there’s nothing in it Undercurrent divers don’t know already. Seems like the industry is afraid of its own shadow.

Elemental Issues of Accident Causation

1. Some scuba training agency programs lead divers to believe they are more qualified than they are, with ratings like “Advanced Diver” with as few as 10 total dives, “Master Diver” ratings with less than 50 dives, and “Rescue” courses that are so simplistic as to be largely impractical in actual emergencies, etc.

2. Divers can qualify for instructor ratings with as few as 50 dives in some agencies.

3. No effective oversight is made within some agencies to interdict and restrict instructors with consistent standards breaches and accident records.

4. Courses tend to be abbreviated for the sake of “moving the student” through the system instead of ensuring skills and knowledge are fully learned and mastered. One agency claimed to use a “performance based” standard of qualification but in one lawsuit’s discovery disclosures, that premise was proved to be totally misstated. For example, if a student was asked to clear a mask two dozen times and finally got it right on the 24th time, he was “passed” in spite of the fact that this clearly did not demonstrate the “mastery” and “repeatability” of the skill … only that the student had successfully cleared his mask once! This hardly meets a standard wherein the skill can be repeated as needed with competence and confidence by the participant, no matter how many certification cards he may have in his wallet or patches sown on his windbreaker.

5. Students need the opportunity to make mistakes under direct supervision, then have them corrected by the observing instructor who turns the process into a positive learning experience instead of a lesson in survival when it occurs in the field with no outside help.

6. The number of divers entering the sport has historically been vastly overstated for marketing purposes. Recent DEMA census reporting has confirmed this. When the database of divers is not accurate, it skews the ratio of participants’ accident incident rates and makes forecasting risk predictability and actuarial insurance ratings impossible to determine and assess.

7. Additionally, the dropout rate for divers and instructors is at a historic high. This is particularly significant for instructor and other “leadership” level ratings, as it tends to then replace existing “professionals” with those even less qualified. This is due mostly to employment conditions and lack of financial compensation. Although touted as a “career” path by many agencies, the majority of instructors find they lack the means to obtain a position that will pay them a living wage unless their ratings are supplemented with legitimate extra credentials like EMS training, maritime licenses, or specific expertise in such fields as photographic training to supplement their value in a retail, resort or liveaboard position.

8. Since diving has experienced a decline in participation within the last decade, there has been a corresponding decline in experienced mentors for new instructors and divemasters for “on the job” or “in the field” training in actual scenarios. This has contributed to accident rates and the failure to identify early identification of behavior patterns that would have been recognized as potentially dangerous by more veteran diving supervisors.

9. As a general observation from a review of lawsuits and accident reporting, we are seeing more causation of accidents resulting from a simple lack of common sense, maritime experience, etc., because little of this specific training and assessment is incorporated in many agency curricula.

10. There is also a need for enhanced training in evacuation, field assessment and treatment, and perhaps most importantly, disqualification of divers from some activities due to lack of experience before being allowed in more challenging conditions. For example, the September 2009 issue of Undercurrent reported the celebration of a diver’s 25th logged dive… aboard a liveaboard at Cocos Island, a site notorious for the need for more advanced diving skills and the ability to dive independently. How such a diver was even accepted as a customer defies all prudent logic.

11. The role of the remaining (and rapidly shrinking) diving press in print media is not helping either. Just take a casual review of photos showing dangling gear, “octopus” emergency second stages dragging on the bottom, unsuitable equipment, overweighted divers, etc.

12. The tragic record of “diver error” rebreather accidents and fatalities, “expedition” trips led by less than qualified “leaders” with associated fatalities, lack of pre-qualification protocols, failure for a designated overall qualified “supervisor” on specialized equipment, deep or penetration dive programs is rampant.

13. Finally, while most training agencies do a credible job of developing worthy standards and procedures for training, many resorts and liveaboard operations lack even rudimentary operations manuals that address “field condition” protocols for more advanced medical assessment, search and rescue, adequate evacuation methods, procedures for site treatment of decompression sickness with adequate oxygen and delivery equipment along with in-water treatment table procedures, or even sufficient supplies of oxygen with demand masks for surface breathing first aid.

To summarize the preamble to this paper, our goal obviously is to identify and recognize the precipitating events that cause accidents so they can be prevented and reduced. But a secondary consideration is the effect of increased accident/fatality incident ratios on the availability of professional insurance coverages and premium rates for all aspects of the diving business.

Finally, if the insurance business is not sustainable as a business model due to losses versus premium incomes, the underwriters will simply decline to insure the risk and exit the market. This would result in catastrophic impacts to the diving industry, as virtually none of the segments are capable of self-insuring their risk.

As I have often been quoted, “ Safety is good business.” We are seeing a departure from that axiom and it could well come back to haunt this generation of diving. The diving industry is at a crucial crossroads of evolution at this time. Without some fundamental changes in paradigms as noted in the above narratives, there are very real consequences that will materialize and further limit growth and profits as accidents/fatalities escalate and the insurance market contracts.

Increased litigation costs from unnecessary breaches of duty by insureds will only increase underwriters’ reluctance to participate in this risk and eventually exit the market or result in costs that may prove unaffordable. Lawsuits will only increase and the costs of defense, settlement, or verdict awards escalate to unacceptable levels.

One thing is certain: Litigation is recession-proof. Understand your opponent and adapt to combat the threat or simply prove the Rule of Darwinism as it applies to business - - just as in the natural world of species evolution.

- - Bret Gilliam