The Patent Foraman Ovale Issue
PATENT FORAMAN OVALE
Other than questions concerning maintenance payments the question most presented to Delise & Hall involves queries concerning a medical condition known as a “patent foramen ovale” (PFO) and its effect on a diver’s career.
Historically, the question is presented in the following manner when a commercial diver calls and presents the following:
I recently was told by my doctor that I have what’s called a “PFO”.
The doctor then informed me that I’m permanently disqualifed from diving.
My company said they are not responsible because a PFO is a congenital defect.
My career is lost.
What should I do? Do I even have a legal remedy? I’m lost.
The issue of the effect of the presence of a PFO on the working diver is widely debated in the hyperbaric medical community. There are no easy answers to this legal- medical quandary.
Here, however, are the salient issues of which all working divers should be aware.
The foramen ovale is a passage or opening between chambers in the heart that allows blood from the inferior vena cava to freely enter the left atrium while a baby is in the womb. A patent foramen ovale occurs when the passage does not fully close as an individual ages. This condition is found in approximately 1 out of every 3 humans.
Where this becomes an issue for commercial divers – statistically one out of every three commercial divers – is when the shunt is large enough to present the possibility of shunting of gases from the venous to the atrium chamber while a diver is off gassing or when the diver engages in a valsalva maneuver. The possibility exists that the gas enriched blood then travels to the atrial side of the circulatory system with a greater possibility that the diver gets bent or suffers arterial gas embolism.
A PFO diagnosis may result in serious consequences for a diver’s career. If the PFO is discovered following an incident of CNS or AGE, a doctor may disqualify a diver permanently if the PFO is large enough, can’t be repaired or if the reason the doctor believes the CNS incident occurred was because of the POF in an “undeserved” CNS. An “undeserved” hit may be a hit where all the tables were followed perfectly, the diver was well rested and there is no other reasonable explanation as to why the diver got bent. In such cases the reason for disqualifying the diver isn’t because he was bent or because of anything that happened during or after the dive; it’s because the diver had a PFO.
There is an operation to close the PFO and it is beginning to be well received by the medical community. But, it’s heart surgery, and the jury is still out over whether it will be well received by the divers.
If a PFO is disqualifying, and remember that one in three divers have a PFO, the obvious questions are: “why isn’t it part of the medical screening prior to entry in dive school?” and, “if this is such a big deal why aren’t divers screened annually or as part of the annual A.D.C.I. physical?” These are important questions to which no one in the dive industry can, with great clarity, provide a satisfactory answer.
In many instances where a diver is bent the company and/or the treating doctor requests that the diver undergo the testing to determine whether he has a PFO. It is appropriate and wise advice. However insurance companies often use this controversy to seek to deny Jones Act claims where the diver gets bent. If the diver has a PFO it is argued that the diver was bent, not because the company made a mistake, but because of the diver’s PFO.
We at Delise & Hall have taken the position that if the presence of a PFO in a commercial diver is so important then screening, pre-bends injury, is equally important. Also, it’s a specious argument for a company to try and escape liability if the CNS is the result of something other than the PFO, such as a bad rate of ascent was bad, the table wasn’t followed, or the ADCI rest period mandates were ignored. There are many reasons a diver gets bent, reasons which have nothing to do with the presence of a PFO.
A diver’s argument against PFO disqualifcation is especially persuasive if the diver has made hundreds of dives with a PFO, and it was only when mistakes were made that the diver got bent!
Simply having a PFO does not give a diver a right to fle suit against their company. But if a diver does have a PFO, it’s probably because the diver learned he had it after an incident. The question then becomes: “why did the diver get bent?” If it’s because it was the fault of the company, equipment or poor decisions by those running or planning your dive, or it’s because of improper decompression or recompression therapy post onset of symptoms, the issue of the PFO becomes less meaningful and, in some cases, totally irrelevant.