Rebreather Diving Accident

Attorney checklist for diving accident investigation

In general, divers using rebreathers are at the leading edge of diving.  Their dives are technical and unforgiving.  Unfortunately, rebreather accidents are usually fatalities.  This leaves the family, family's attorney and or estate legal representative with a lot of questions about what happened on the dive .  Investigators, unfamiliar with rebreather operations, often find themselve scratching their heads while trying to formulate the best investigation possible.  There are certain things that should be done in order to aid the victim/family of the diver and provide the investigators with proper divng accident investigation tools.  Also, the future safety of all rebreather divers can only be enhanced by proper risk assessment and error attribution.  The risks of diving have often been compared to the risks of flying.  As everyone knows, when aviation accidents happen, a thorough investigation, is done by the NTSB, a factual report created, and attribution of fault is assessed.  As a result, aviation is one of the safest modes of travel known and risk associated with it are well known.  Consider what safety records would be if proper investigation techniques were not followed, manufaturers conducted proprietary investigations and withheld important accident data and unsophisticated parties controlled investigations.

This is where we are with rebreather accident investigation.  Some rebreather manufacturers will immediately try to participate in the investigation by offering "technical expertise" to investigators. They will usually have an investigator on the scene within 24 hours of a serious accident to start the preparation of their legal defense.  They are there to protect their interests - not the interests of the family.  Families should be aware that they should have an attoney or legal representative protecting their rights as early as possilbe in the investigation.  

The scuba diving accident victim would be best advised to seek out legal advice as soon possible. With this in mind, there are certain preliminary actions that should be taken:

• The diving equipment should be immediately sequestered by the police.  It should not be released to the manufacturer.  Data on the dive computers and rebreather electronics now belongs to the family. In addition to user downloadable data, rebreathers can contain data that only a manufacturer can access. It makes no sense that a Manufacturer would be able access information about the dive but would not want to share it with a police investigation into a death.  If a munufacturer balks at provided access to all information you should be immediatley contact legal representation. Data should not be provided to the manufacturer without obtaining their unqualified agreement to share all data (and the ability to read it) with the police and family. If an examination of the equipment is desired it should be done so in the presence of a knowledgeable ltechnical expert and lawyer for the famility. 

• Secure all scuba equipment that was used on the dive and make sure that it is not altered in any way. If a fatality or a serious injury is involved the investigating officer may take possession of the equipment for testing. Make sure s/he is informed that the family wants to be aware of the progress of this testing and that none of the equipment of computerized dive information is to be distributed without the family's consent. Try to find out where the testing will be done and keep informed of the results. Make sure to take possession of the equipment (or find out who did take possession) as soon as possible.

• Some rebreaher equipment, or the dive computers used in conjunction with them, record data as the dive progresses. Get a copy of this data.  

• Some rebreather equipment can record data that only the manufacturer can access. This data now belongs to the family as the owner of the rebreather equipment. Any reasonalbe manufacturer would want to provide all relevant information about a fatal dive to the police. If a manufacturer balks at providing the police investigators with the ability to read this information you should immediately seek an attorney to assist in data preservation.

• Batteries fail. If the data is not downloaded prior to their failure valuable information can be lost. Make sure the investigators download all possible data.

• If this is a fatality try to ensure that dive autopsy protocols are followed. Obtain the autopy report.

• Scrubber material should be analyzed by the police investigators and preserved.

• Manufacturer's will assert that pre-dive checks were not made. Try to get as much information as possible from dive participants and spectators regarding what the diver was doing at the beginning of the dive. Memories fade. Try to get a written statement from anyone who observed the pre-dive checks being done and the amount of time spent in view. 

• Maintain a copy of any promotional literature relating to the dive.

• Obtain the name, address and home/work phone numbers of any witnesses that you believe observed any portion of the dive.

• Obtain the name of all dive participants.

• Obtain and secure any photographs or video of the dive.

• Obtain a copy of the police report regarding the accident.

• Police departments will often send out the rebreather to what they feel to be a qualified individual or entity to conduct further examination. NEDU (Navy Experimental Diving Unit) will often get involved. Make sure you obtain their report as soon as it is finished.

• Obtain a copy of the coast guard report regarding the accident.

• Have someone photograph injuries as soon as possible.

• Have someone photograph the scene of the accident. Videotape it if possible. Make sure something like a newspaper is used to enable you to correlate the photo/video to a date.

• Secure photographs or videotapes from any person in your party that participated in the dive.

• Get the names, address and work/home phone numbers of any other persons who were in the vicinity who took photos or videotaped any portion of the dive preparation, dive and/or dive aftermath.

• Obtain all documents that were given as part of dive instruction if instruction was involved in the accident.

• Retain all documents that were signed by the victim or obtain a copy of all documents signed by him/her.

• Often a company representative, insurance representative or manufacturer's attorney will contact the victim of an accident  or member's of their family in an attempt to obtain a written or recorded statement. Understand that they are not taking the statement so that they can assist the victim - they are on the other side of a potential lawsuit. Do not give a statement without consulting an attorney.

• Retain all records of payment for the dive, dive training, transportation, and/or dive course (charge card slip, checks, written receipts).

• If the accident resulted in the death of the diver the potential defendants (through their insurers, attorneys and doctors) invariably assert that the death was the result of a "spontaneous cardiac disrythmia." A spontaneous cardiac disrythmia is an extremely rare event in real life, but an extemely popular defense. If an autopsy is performed you must make sure that the specimens are properly maintained and that you get a copy of the full written report. If organs are harvested, you should obtain all pathology reports. You should seek a competent medical opinion from a specialist as soon as possible.