IUCRR and Eagle's Nest Incident

[MORGAN]

What were you wrong about? Was it not a man or was he/she not dead?

Reminds me of an old joke:

Attorney: Dr. Jones, how did you determine that Mr. Smith was in fact dead? Did you conduct a complete examination?

Medical Examiner: No.

Attorney: Did you check his level of responsiveness?

Medical Examiner: No

Attorney: Did you check his pulse?

Medical Examiner: No

Attorney: Did you check for breathing?

Medical Examiner: No

Attorney: So will you explain to the jury how you could be sure that Mr. Smith was in fact dead, when you didn't perform even the simplest components of a physical examination?

Medical Examiner: His brain was in a jar on my desk. Though I suppose it's not impossible that he could be out there somewhere practicing law.

[Ken Hill]

Reminds me of an old joke:

Attorney: Dr. Jones, how did you determine that Mr. Smith was in fact dead? Did you conduct a complete examination?

Medical Examiner: No.

Attorney: Did you check his level of responsiveness?

Medical Examiner: No

Attorney: Did you check his pulse?

Medical Examiner: No

Attorney: Did you check for breathing?

Medical Examiner: No

Attorney: So will you explain to the jury how you could be sure that Mr. Smith was in fact dead, when you didn't perform even the simplest components of a physical examination?

Medical Examiner: His brain was in a jar on my desk. Though I suppose it's not impossible that he could be out there somewhere practicing law.

Morgan,

Thanks for the best explanation ever to state what it is like dealing with opposing lawyers. No one should lose sight of the fact answering these moronic inquiries will cost us $250 an hour in legal fees and that is something NO volunteer organization or individual should have to face.

Again Morgan thank you, "I rest my case." /K

[Walter Pickel]

$250 an hour in legal fees

Cheap attorneys Ken...You getting discounted rates?

[Squirrel Girl]

Wow has it been that long?

Sadly I remember when I heard the news. I was in India, coming back from a dry caving expedition, and got online at an internet cafe in Shillong on the way home. There was the news in an email. :-( At least I was able to make the Virginia memorial. Hah--Wes ran around the campsite with a string of firecrackers hanging off his @$$.

[FW]

...I have photos of the first recovery seminar ever done, at Little River, circa 1981/2 or so....with Sheck, Forrest, Mark Long, Mary Ellen Exley, Steve Omeroid, Henry Nicholson and others...and some in the cave, with Sheck as the "victim"...

That was actually the second one. The first was at Indian springs, but the cave was tannic, so we put off the in-water part until later.

[Benderr]

Just out of curiosity, is there a documented case of someone getting sued for making public data that was obtained with a valid FOI request ? I really don't know that answer and wonder if anyone does.

That's a bit outside of the work that I do, so I can't say.

I was referring to a plaintiff using details of the now published report to support a complaint. In some forums, you have to be very specific about your legal injury, and why you are suing party X. The information would be subject to discovery in any civil case, weather it was public or not, but you wouldn't want to make it easier for someone to get their foot in the door.

So then you could argue that you could just let the statute run, and then publish the report, but do you wait two years, or seven? Does the seven start at the time of death, or at the moment that malpractice took place (the basis of the extension)? You would have to have a legal opinion form an actual lawyer to determine what your best bet would be, but that costs money, and still isn't a guarantee that you won't harm yourself by publishing the details.

I've worked several cases where defendants were given legal advice by otherwise competent attorneys, and that advice turned out to be 100% wrong. You could call that malpractice perhaps, but even "simple" issues of law are often like underwater caves.

I have had a couple of back and fourths with Ken over this. I think the issue is the IUCRR does not want to release their report they provide to LEO for Legal reasons.I understand this. What is at issue is Once the report and the Case are public record IE Closed, The medical examiner's report and the IUCRR report would be available for release under most public records circumstances, AL LA New Town, CT The parents tired to block the release but a judge sided with the News Media. If the report is obtained under all legal public records process and post to a blog as a new item I do not see how or why there would be any legal liability on any party.

Publishing public information in and of itself isn't the problem, it's that it may make it easier for litigation to be initiated, or, may spur someone to initiate litigation that they otherwise would not have initiated. Win, lose, or draw, someone from the IUCRR will have to produce documents, and sit for a deposition if a civil case gets to discovery.

I suggested this would be something the Agencies might wish to pursue for their instructors, Ken also suggested this might be an opportunity for someone with a passion for news to submit these as stories to UWS as a type of I learned about Cave Diving.... Article.

Agencies probably don't want to point out that people die on scuba, even if they break the rules. They're in business to issue cards. They have to invest in safety, because deaths are bad for business, but you'll also lose business talking about dead divers. A tough balance. IHO, you need an independent author . Put something together like Exley's "Caverns". I'd buy that book.

[curtschu]

When I say agency I am speaking of the cave diving training agencies not the PADI instructors. I think accident analisys would be good for the up and coming instructors to take part in.

[MORGAN]

Morgan, Thanks for the best explanation ever to state what it is like dealing with opposing lawyers.

The reason I thought it was funny when I first heard it is that I've been deposed and testified as a witness on a number of occasions - it rang all too true.


Years ago an ER doc friend was being badgered by a plaintiff's attorney:

Attorney: Doctor, I refer you to page 22 of your deposition. You can find page 22, can't you?

ER Doc: Yes, I can. To get into medical school, as opposed to law school, you have to be able to count all the way to 100.

[Omisson]

Just out of curiosity, is there a documented case of someone getting sued for making public data that was obtained with a valid FOI request ? I really don't know that answer and wonder if anyone does.

Every state's foil laws are different. In NY anything obtained via a Foil is inherently a public document. Dissemination is not prohibited. Florida has SIMILAR freedom of information statutes- but I can't speak to their common law case law.

Dan-O

[Omisson]

I don't believe HIPAA applies here, for those of you quoting HIPAA should go to HHS.gov and research hipaa.

HIPAA applies (in this context) only to non public elements of an otherwise public record - i.e. Patients medical history not directly related to the incident, his blood type, personal pedigree (address, social security, phone). The general PCR and Police report, would be redacted to exclude such info in a FOIL request.

There is a bright line set of rules for the application of HIPAA to incidents involving public safety.


Dan-O

PS this doesn't constitute legal advice... Yada ya da yada....