73 The Alabama Lawyer 274 (2012). Diagnostic and Daubert Criteria for Diving Injury.

• Author: By Gregory C. Buffalow

Alabama Bar Journal

2012.

73 The Alabama Lawyer 274 (2012).

Diagnostic and Daubert Criteria for Diving Injury

Diagnostic and Daubert Criteria for Diving InjuryBy Gregory C. BuffalowMost Alabama lawyers prooaoiy associate

underwater diving with warm water vacation destinations where scuba diving opens an underwater world of colorful coral reefs and exotic marine life. For many people who live and work on the Gulf Coast, though, underwater diving can be a hazardous duty that is part of a difficult occupation. Injuries are common and legal and medical issues can be tricky.

Typically, reported cases and commentary involving diver's decompression injury or decompression sickness focus on questions of jurisdiction and the evaluation of factors pertaining to the Longshore versus the Jones Act.

The Longshore and Harbor Workers' Compensation Act ("Longshore Act") applies to persons in maritime employment including longshoremen, ship repairers and other harbor workers, but excludes "a master or member of a crew of any vessel." 33 U.S.C. §902(g). The Longshore Act does not preclude application of state workers' compensation laws, which may be of practical benefit if state law benefits are more generous.

In contrast, the Jones Act requires a connection with a vessel or fleet of vessels. The U.S. Supreme Court has approved a rule of thumb that "[a] worker who spends less than 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Chandris V. Latkis, 515 U.S. 347, 370 (1995). The Jones Act negligence remedy is provided to an injured seaman "against the employer." 46 U.S.C. §30104. Finally, general maritime law also provides a remedy to an injured seaman based on unseaworthiness of the vessel on which he is a crewman. The Osceola, 189 U.S. 158 (1903).

While scholarship on jurisdictional issues is important, lawyers who practice in this area need to educate themselves about medical issues surrounding diving injury, decompression and residual symptoms. Consequently, the following summary is offered as a guide to evaluating diagnostic criteria, including references to medical literature, case law and other reliable authorities.

Decompression injury includes decompression sickness and arterial gas embolism.(fn1) Decompression injury is a general term applied to all pathological changes "secondary to altered environmental pressure."(fn2) Arterial gas embolism usually occurs after a diver holds his breath too long after breathing pressurized air while underwater. It can also occur if a diver ascends to the surface too rapidly, without adequate time for pressurized air to dissipate. Arterial gas embolism is associated with impaired consciousness, visual loss and vertigo.(fn3) Other terms frequently used in the context of diving injury include "the bends" which refers to joint pain, "the chokes" which refers to pulmonary symptoms and "the staggers" which refers to vestibular (balance) symptoms.(fn4)

Guidance in this area is essential because the medical evaluation is quite subjective and "the diagnosis of decompression injury is challenging because there are no specific diagnostic tests."(fn5) The cause of decompression sickness is the result of "bubble formation" in the blood and tissues. As pressure increases during diving, "inert gas-primarily nitrogen-is dissolved in tissues, creating in the body a supersaturated state; if ascent is too rapid, the dissolved nitrogen in the blood and tissues . . . [will] form bubbles that cause tissue injury. . .(fn6) Recompression is recognized as the definitive treatment to reduce bubble volume, and redistribute and re-dissolve gas.(fn7) Initially, the diagnosis of a mild case of decompression injury may be based on nothing more than clinical reports of pain, followed by improvement after treatment in a hyperbaric chamber.(fn8) There is no firm classification system or "gold standard."(fn9) Decompression injury is characterized as a "spectrum."(fn10) Type I decompression injury, at the lower end of the spectrum, is characterized by the absence of neurologic symptoms and "usually manifests as musculoskeletal symptoms, such as pain."(fn11) Type I patients may experience merely "fatigue, malaise, and a sense of foreboding,"(fn12) as contrasted to Type II, which involves more severe decompression injury involving "severe cardiopulmonary or neurologic symptoms,"(fn13) or inner ear and pulmonary symptoms with long-term or irreversible damage.(fn14) Generally, the classification is as follows: Type I involves joint pain and Type II involves impairment of the central nervous and pulmonary systems.(fn15)

Diagnostic criteria, which can be summarized from a review of the literature, correlates more serious incidents of decompression injury (more likely to have long-term consequences) with additional, objectively verifiable symptoms. The diagnostic criteria for symptoms associated with more serious incidents of decompression injury involve the following:

* Inner-ear symptoms;(fn16) * Neurological symptoms;(fn17) * Cardiovascular symptoms;(fn18) * Pulmonary symptoms;(fn19)

Each of the foregoing symptoms has "special importance, because it often results in long-term and irreversible damage."(fn20) Additional factors used in the diagnosis of decompression injury are reported in order of importance as follows:

* Symptom onset time;(fn21)

* Loss of consciousness or other neurological symptom;(fn22) * Seizure as presenting symptom;(fn23) * A plausible history of a rapid decompression (such as rapid ascent).(fn24)

Onset time is deemed "critically important," because the probability of decompression injury "rapidly decreased with symptom onset times greater than 2-3 h[ours] after a dive."(fn25) Other criteria taken from a listing of 25 important factors include the following:

* Joint pain;(fn26) * Any relief after recompression treatment; (fn27) * Motor weakness (anywhere) reported as a "secondary symptom,"(fn28) * Skin symptoms;(fn29) * Unusual fatigue;(fn30) * Previous decompression injury.(fn31)

Depression as a consequence of decompression injury is a rarely reported symptom.(fn32) Headaches are usually considered unrelated to the dive.(fn33) There is little concern in the medical literature for the "false positive" case of decompression injury, because "recompression of false positive cases of decompression sickness or arterial gas embolism is not harmful."(fn34)

Consequently, a diver with marginal symptoms is typically "assumed to have decompression injury and [is] treated."(fn35) The literature thus recommends "[i]f there is any doubt as to the cause of pain, the physician should assume that the patient has decompression injury and treat accordingly."(fn36) The U.S. Navy Diving Manual also recommends that "[i]f there is any doubt as to the cause of the pain, assume the diver is suffering from decompression sickness and treat accordingly."(fn37) Standard treatment principles thus advise "[n]ever fail to treat doubtful cases."(fn38)

While the foregoing regimen, no doubt, provides reassurance to the emergency room physician that no harm should result from recompression treatment of the doubtful case, it enables the false positive patient or claimant with minor injury to pursue workers' compensation or injury claims involving minor incidents without residual symptoms, which do not involve the likelihood of long-term consequences. Mild decompression injury symptoms such as limb pain without neurological signs "almost invariably stabilize within 24 h[ours]."(fn39) Typically, such mild decompression injury symptoms "do not worsen over days, weeks or months."(fn40) Reliable studies therefore conclude that the majority of "mildly injured divers" obtain complete relief after recompres-sion.(fn41) Courts should be encouraged to dismiss the claim of mild decompression injury or limit recovery in the absence of residual symptoms.(fn42) Likewise, courts should consider dismissal in the absence of more significant objective symptoms,(fn43) particularly where the diver has complied with dive tables(fn44) and recognized standards, or where there is failure to establish factual support for negligence.(fn45) The foregoing summary of diagnostic criteria, supported by reliable medical authorities, may assist a defendant in limiting exposure for Type I cases and in properly evaluating...