Instructor on Enriched Air

[LUBOLD8431]

Yeah, I dont know why all you guys are getting up in arms over an instructor using nitrox.

I use NITROX on EVERY training dive I do with students. I never use AIR for OW dives...

I (like NetDOc), want to have as little n2 in my system as possible. GOing up and down like a yo yo is not good, for anyone. I want to try to limit my risk, and EAN does that. I want to be teaching for a long time...


As for your initial question, I dont think you would be liable in any way if you had to donate air to a student (at least you gave him another breath). Its the whole duty of care thing. You are responsible for them. The gas difference between EAN and air is not that significant. I would think the student would not know the difference. And, hopefully, its only a few breaths, and then they are back on the surface. I dont see a problem with this. Unless, they tox, or get injured directly because of the EAN. I think this is a long shot...

 

[devilfish]

LUBOLD8431 once bubbled...
Yeah, I dont know why all you guys are getting up in arms over an instructor using nitrox.

I use NITROX on EVERY training dive I do with students. I never use AIR for OW dives...

I (like NetDOc), want to have as little n2 in my system as possible. GOing up and down like a yo yo is not good, for anyone. I want to try to limit my risk, and EAN does that. I want to be teaching for a long time...


As for your initial question, I dont think you would be liable in any way if you had to donate air to a student (at least you gave him another breath). Its the whole duty of care thing. You are responsible for them. The gas difference between EAN and air is not that significant. I would think the student would not know the difference. And, hopefully, its only a few breaths, and then they are back on the surface. I dont see a problem with this. Unless, they tox, or get injured directly because of the EAN. I think this is a long shot...

of the lawyers and OSHA. Becasue of osha regulations the attorneys for the plaintiff would have a party.

One of the guys that works for me runs into my office one morning, screaming and up in arms because he got a speeding ticket down the street. The cop would not take his excuse that he drives that street everyday like this and never got a ticket before. DUHHH
Nothing happens till it happens. It does not matter what the Instructor thinks or what excuse they have. It's what the lawyers think and what they have to work with.
Any lawyers on the board?

 

[AzAtty]

...there are several lawyers on the board. I'm one of them.

29 CFR 1910.401(a)(2)(i) states that the regulations propounded by OSHA governing commercial diving operations do not apply to "any diving operation: (i) Performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits." I haven't researched the annotations to that section, but it appears that recreational scuba instruction could fall within that exception. On further consideration, though, scuba instruction may still be subject to the regulations. I'll have to do some more research on the topic.

29 CFR 1910.426 governs "mixed-gas diving." That section says nothing about particular training being necessary to use a mixed gas in commercial diving operations.

I also ran a quick search using the terms "nitrox" and "enriched air" separately on Westlaw using the ALLCASES database. That database covers every reported case in the United States. There were six "hits" on "enriched air" and eight hits on "nitrox." All of them were patent infringement cases. Not a single case involved an OSHA enforcement action or a personal injury case.

There may be other regulations that I did not find. Admittedly, I only spent about ten minutes looking, so you're welcome to do more research if you like.

Now, for my thoughts on radagalf's hypothetical:

I intentionally will not provide what I think is the "right" answer to the question. In my Quantitative Business Analysis course during my MBA program, the professor said on the first day that you cannot judge the quality of the decision based upon the result you get. That's really a profound statement, and it seems counterintuitive. People don't understand it unless they understand how to make decisions. Sometimes very good decisions have bad results, and very bad decisions have good results. The best you can do is analyze the data and information you have available to you, and settle on a course of action.

Analyze the situation yourself: the student will die if he can't breathe, and the student may suffer a toxic episode if he breathes enriched air. In either case you'll get sued, so make the decision that maximizes the chances of the student living and minimizes your chance of being sued. Keep in mind that there are standard emergency responses set by your agency to which you should adhere--at least if you want to be covered by their insurance policy. Following those standards may provide you with defenses to claims brought by the diver. At the same time, you need to know when to bend or break the rules.

Even if you make the "right" decision, you may be held liable on other grounds. How did the student run out of air? Were you down too long? Did you check tank pressure at the beginning of the dive? Did you check the equipment for any leaks? Did you notice any signs of distress or heavier than normal breathing? Did you signal your students to check their air every ten minutes? The list goes on and on.

Ultimately, the issue is whether you acted as a reasonable and prudent instructor would have acted under the circumstances. I can't provide an answer to that question, but you should look at the standards provided by your agency and other agencies. Those are probably the best place to start.

 

[devilfish]

I don't know if it has been passed, but here's an interesting link.
http://www.osha.gov/pls/oshaweb/owa...=NEWS_RELEASES&p_id=9972&p_text_version=FALSE

 

[cornfed]

reefraff once bubbled...

Here in the States, instructors are considered to be commercial divers and the use of EAN is an occupational safety issue regulated by Uncle Sugar. You can use it, but you have to follow (stupid) strict mixed gas protocols, including having an on-site recompression chamber. Yup, on-site recompression chamber. Violations of OSHA regulations definitely constitute a liability nightmare. Your results may (and hopefully do) vary.

Look at the posts by AzAtty and devilfish. It doesn't appear that dive instructors are subject to those regulations.

Cornfed

 

[Otter]

I was told by an Master Instructor that PADI Standards prohibit teaching Nitrox on an EAN. Since, I don't plan on it, I never bothered to follow up and determine if its true. Anyone else?

Otter

 

[AzAtty]

I believe I said that they *could* be exempt. I'm waffling over whether "for profit" instruction falls within the OSHA regulations based upon the way the code reads. Some research into the proposed changes to the Commercial Diving Operations rules seems to indicate that recreational instruction is exempt, but I don't have a District court or appellate court case upon which to rely, so it's still up in the air to me. Like I said, I'd have to do some more digging. OSHA really isn't my area of expertise. I'll walk down the hall and check with an admin law attorney.

 

[cornfed]

Did you look at the link devilfish posted? It mentions a variance for a PADI shop and I'm pretty sure PADI is for profit.

Cornfed

 

[AzAtty]

Yes, I looked at it. What bugs me is the following language in a summary of proposed changes to the Commercial Diving Operations rules:

OSHA believes that by limiting application of the proposed alternative as discussed above, recreational diving instructors and diving guides who dive according to the proposed requirements would receive a level of safety and protection equivalent to recreational diving instructors who are exempted from the CDO standards altogether under § 1910.401(a)(2)(i); the recreational diving instructors covered by § 1910.401(a)(2)(i) must use compressed air supplied to open-circuit SCUBAs under no-decompression diving limits.

29 CFR 1910.401(a)(2)(i) is the exemption section to which I initially referred. What bothered me was the language in that section: "solely for instructional purposes." Absent a case interpreting that language, it seemed to me that "for profit" instruction might not qualify for the exemption. However, from the OSHA proposed CDO change notice, it appears that instructors who breathe compressed air are exempt. I suppose that's as official as I'll get without a case on point.

 

[diverbrian]

I nearly never dive straight air. I especially don't when the possibilty of multiple ascents/descents exists (ie. panicky students in the open water). All of our shop DiveCon's and Instructors dive nothing but EAN36 during training and that includes pool. I like the extra O2 to help me feel better (even if it is pschosomatic) and the fact of less N2 is always a benefit. Our training dives with the exception of deep diving courses do not go below 60 ft and normally it is 40 ft as we train many junior certs.

Another factor, our LDS sells the EANx course bundled in with open water training. The students are doing their last two training dives on EAN36 right along with the instructors/assistants.