IM NA is being sued for death at IMFL (Page 7)

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OK, here's where we need to get a little picky...gotta define experience. Reason being, and I'll give the disclaimer that I can't support this with data right out of the chute - but I'd bet that the majority of fatalities in the swim have zero to do with experience, and much more to do with dormant medical conditions that, under stress, come to the surface. Sure, you'll get the occasional 'kicked in the face' fatality, but most times, when an inexperienced swimmer can't finish a swim, they find a kayak. Plus, experience makes no difference. I've done a grand total of 3 tris in the last 2 years, and I'm a good open water swimmer. I could name 30 people that have done a bunch of tris, but couldn't survive the St. A's chop in 2006. I've struggled with how to establish this standard, and in the end, can't come up with anything. Maybe the courts should rule to tell us what's reasonable, not negligent, etc.

I'd argue a more reasonable hurdle to jump over, before signing up for a tri, is a stress test / ekg / check for heart irregularities. I had to run past 3 coded people at Marine Corps Marathon 2 years ago, and I was running 9's, and they were ahead of me, so it wasn't that they didn't know how to run. Their bodies just couldn't deal with the stress on that day.  This will never happen, though.

Lastly: ChrisM (I think) brought up the point a few pages ago that prosecutors need to show INCREASED liability (e.g., ratios of lifeguards to swimmers) danger in this event compared to others. That's a relative measure. Let's just say that in the past, for sake of argument, that the lifeguard to participant ratio was 50/1. Let's also say that it's increased to 75/1 in the bigger events now. How could that possibly form the basis for a case?  What's the right ratio?  A 1:1 ratio wouldn't guarantee someone wouldn't drown, and a 1000:1 ratio wouldn't predicate someone would perish. So many variables. I just don't get it....hoping to learn something here.

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Is there even such thing as a good samaritan doctor?  It seems to me like you can be a good samaritan or a doctor.  Not both.  Just because your not at the office doesn't mean you're not a doctor.  Even when I was certified as just a lifeguard, if I was anywhere and saw some kind of accident I could technically be sued if I didn't help.  And technically, if the victim doesn't give consent for me to help (unless they're unconcious) I could be sued for that too.  I agree that it doesn't always seem right, but thats the way it works.

Actually, we covered this in Bar Review today... here are my notes:

No duty to rescue.

-       Two exceptions:

o   If there is a pre-existing relationship between the person in peril and the potential rescuer.

§  What kind of relationship?

·      Employer/employee

·      Invitee/land owner

·      Family relationships

·      Sometimes courts even stretch to friends, etc

o   If the defendant put the person in a position of peril, then there is a duty to rescue.

However:

-       If you choose to rescue, without having a legal duty to do so, but you SCREW up the rescue – you’ll be liable for that.

o    A voluntary or gratuitous rescuer who botches the rescue is liable for that.

-       Good Samaritan laws: statutes that alter CL doctrine.  NY has one, but it is very narrow, because it only applies to individuals in particular career categories:

o   NY Law only protects nurses and doctors, but they can still be liable if gross negligent.

So, I don't think doctors have a duty to rescue, unless one of those exceptions applies - pre-existing relationship or they caused the peril.  I don't know what kind of 'internal' code doctors might have - is there anything in the medical ethics rules saying they have to stop and help?  

Good Samaritan Laws are meant to protect those who stop - even though they don't have a legal duty.  I don't know that you would have had a legal duty to stop and help as a lifeguard? If you did stop and messed something up, you could be liable depending on the Good Samaritan laws of the state. I'm studying for NY bar right now - it seems like NYs are narrow and only cover nurses and doctors who stop... 

Done.

John

Couple of points (to no one in particular, just quoting the last post):

1. The summary judgment motions have not yet been adjudicated. The plaintiff filed one on May 10 (or thereabouts) challenging the Defendants' assumption of the risk defense. The Defendants filed their motion for summary judgment four days ago. This is the problem with news reporters reporting on things they know nothing about. Everybody thinks the case is definitely going to trial. That's still up in the air. The trial date was set months ago in the scheduling and mediation order. Just because the have a trial date doesn't mean it will actually go to trial. My thought is that some or all of this case will be dismissed well before the July 6, 2009 trial date.

(I went to the Northern District of Florida CM/ECF link and logged into PACER to download the docket report from inception to today's date. If anybody wants to see it (though I can't think why you'd want to) I have a PDF of it I can PM or email you.)

2. The case has pled an unspecified amount of money in excess of $75,000.00. It was originally filed in a state court in Panama City, but was removed to federal court by the Defendants because all of the defendants have different states of residence from the plaintiff. It's what we call "diversity jurisdiction" of the federal court. Very basically speaking, diversity jurisdiction is only implicated when the states of residence of the plaintiff and defendants differs, and if the plaintiff seeks an award in excess of $75,000.00. Because the lawsuit was removed and not remanded to state court, I would conclude that the judge found that the amount sought in the lawsuit meets the "over $75,000.00" requirement.

3. Talk about the dangers of a mass start swim is irrelevant. The guy got into trouble on the second lap of the swim. The start was long over. Even if mass starts are inherently dangerous, it would seem that the plaintiff will have a hard time proving that this inherent danger is causally related to Mr. Rice's death. A more plausible theory is that there were insufficient resources to adequately identify distressed swimmers in time to prevent the death. I don't know if that's true, but it makes more sense than an argument that mass start swims are inherently dangerous.

4. In all likelihood, the case will either be thrown out on summary judgment or will settle prior to trial for a manageable amount with WTC, NAS, and USTA not admitting any liability, and spinning it as a business decision to put the matter to rest and give Rice's family something to assist them in their time of need.

5. FWIW, the federal 11th Circuit in which Florida's federal courts are located, is a very conservative court (not so much as the 4th and 5th, but much more so than the 9th and 10th). Even if Rice wins the case at a trial, my bet is that his award, whatever it might be, would get cut down tremendously or completely overturned if WTC, NAS, and/or USTA appealed it. The deck is stacked in favor of the defendants here, so let's not go handing over control of the Ironman brand to the Rices just yet.



Edited by Sharkboy 2009-05-28 6:13 PM

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I did a race in Switzerland that was mass start and I did not notice any differences other than getting kicked by what seemed to be an extreme number of breast strokers and a guy using swim paddles.

I feel sorry for the family losing their husband/father/son, but like others have said, it is inherently dangerous.

The NWS is a government agency - soverign immunity... you can't typically sue the government for money.

Ahh... a true believer defense lawyer.  Why are plaintif's lawyers uncomfortable in USDC?  I do commerical litigation/bankruptcy (used to do some PI both plaintiff and defense) and really could care less whether I'm in USDC or state court. 

11th amendment !

Swim Safe swim belt. I've use one for 2 years, it's a great piece of mind. In the Bike or Run if you need to stop and regroup you can. It's kind of hard on the swim. I know that a guy died last in in the gulf coast half. The swim safe can give you a second chance if and when you really need it. It would have probadly saved both peoples lives.

I would argue that this ties into vetting the swimmer before he starts sub-thread that is going on. If you have a bunch of weak swimmers, you force the lifeguards to focus on weak, therefore creating insufficient resources to identify distressed swimmers.

Also, the argment that those who die in the water are all heart/genetically related and not poor swimmers, I point back to the article I put up pages ago (page 5 maybe?) there were 12 or 13 deaths in the study, with 3 heart related. None on the bike or run.  I have a hard time believing that all those were good swimmers and that stress of a race to cause a heart attack death is only in the swim.

Aren't those called WET SUITS?

I can't speak for Florida, but in Texas, it is DEFINITELY to the defendant's advantage to be in federal court. The big reason is the burden on summary judgment. In federal court, the burden is on the plaintiff to present sufficient evidence to support each element of his/her claim. In Texas state courts, the burden is on the defendant to disprove at least one element.

Also, the judges in federal court tend to be brighter and more well read. Finally, the federal judges are appointed for life. There's no fallout with the plaintiff's bar if they dismiss cases. In Texas state courts, judges are elected and they have to keep in mind the powerful lobby of the plaintiff's bar. You don't get their support in the election if you're constantly dismissing their cases.

I guess it's obvious which side of the bar I practice on.

What I meant was not that they failed to identify weak or poor swimmers, but that once the swim started, perhaps (or so the theory might go) there were not enough lifeguards and other rescue personnel to adequately cover the area and respond in a timely fashion to people who wound up in distress.

Having done an IM event, I find would find that theory hard to swallow. When I did Wisconsin in 2007, there were a ton of kayaks and boarders helping out the swimmers. I can't imagine that they would have been understaffed at IMFL.

First, thank you John - you put much more clearly what I meant. I thought by putting "joke" it would come across as, well, a joke. It is only a half-joke, though, as I know a medic who has had to pretty much forcibly remove a veterinarian because they were screaming, "I'm a doctor!" and trying to take over. It does happen. I pointed out, though not well at all, that if a doc had the credentials, I'd absolutely be backing away, ready to help them in whatever they needed as they took over the scene. I mentioned EMT-I and medic, and also meant that to include PALS, ACLS, etc. without listing a bunch of what I thought would be meaningless letters to most. You come up to me and say you are ACLS, scene's all yours! You come up and say you're a doctor, I'm gonna be asking some questions first. If I turn my scene over to a podiatrist who hasn't even sent his kid to the ER, much less been in any sort of emergency situation, experience, or training, my azz is grazz.

Second, on naming the doctor in the suit (and repeating what John wrote above): I very carefully put naming the doctor. Assuming the doctor did everything right and within her training, the suit should most certainly not be successful. Anyone can be sued for anything. Good Sam doesn't stop you from being sued, it stops the suit from being successful. Sounds like, again assuming she did everything right or at least not grossly negligent, she's all sorts of covered under Good Sam.

Third, I'm a she.

Finally, I still think the rescuer-to-swimmer ratio and victim access are valid concerns, and that if this lawsuit addresses that, as it seems it will, that is a good thing.