September 29, 2015 Shuman vs. Jewish Community Association of Austin
Last modified on November 8th, 2018
This case describes the non-fatal submersion resulting in neurological impairment of a young 5-year-old.
The Jewish Community Association of Austin (JCAA) is located at 7300 Hart Lane on a 40-acre Dell Jewish Community Campus in Northwest Austin. The JCAA features a large aquatics facility consisting of a 25-yard, 8-lane pool, and a “wading” or “baby” pool described within the Shalom Austin website as “a large, shallow wading pool with a UV shade for our youngest Members.”
The JCAA utilizes the Krayzelburg JCC Swim Academy, which is also utilized by several other JCC’s around the U.S. According to the Lenny Krayzelburg JCC Swim Academy’s website, “our program offers a variety of classes to meet every parents need. Parent tot classes, private lessons, group classes, stroke development, you can find it all at Lenny Krayzelburg JCC Swim Academy.” The Lenny Krayzelburg website recognizes that “drowning is one of the primary causes of death among children under five.” However, although the Academy focuses on learn-to-swim principles, it does not dictate safety procedures and protocols for supervision and lifeguarding.
The JCAA’s Aquatics Director, was “a former University of Texas Lady Longhorn and NCAA Division 1 individual and team champion.” According to the texasiron.net website, “Her past working career includes years of hands-on experience with world renowned coaches, and aquatics facility management. She also worked as the assistant to the Vice President of Speedo America, where she facilitated sponsorship contracts, team sales, and was a liaison for the national support team program. She is currently the Aquatics Director and Head Swim Coach for the Austin JCC, and owner and Head Coach for Texas Iron Multisport.”
Although no records have been produced indicating the level of training and certification for the JCCA lifeguards, the assumption is that they were certified through the American Red Cross in Lifeguarding and CPR for the Professional Rescuer. This assumption is based on the fact that the JCCA website has a section on Lifeguard Training and Certification where individuals can review the course offerings and register to participate in this training. The website does not indicate who the instructor is for any of these courses, but the website does indicate to “contact the Aquatics Director at (512) 735-8216.” The American Red Cross Lifeguard Training curriculum, according to the JCC Austin’s website, includes: American Red Cross CPR/AED for the Professional Rescuer and American Red Cross Basic First Aid.
Non-Fatal Submersion Incident: Sequence of Events
On August 12, 2014, 5-year-old Nicholas Wyatt Shuman (Wyatt) was enrolled as a student in a pre-school program at the Jewish Community Center in Austin, TX. This was his last day of the program and his 3rd season at the pre-school. Wyatt was signed up for a 15-minute private swim lesson that was scheduled to start at approximately 4:00 PM. The normal procedure is for a school staff person to escort Wyatt from his classroom to the pool and then a staff person then escorts him back to his classroom after the completion of the swim lesson.
Prior to the incident, the “wading/baby” pool was reported to have been crowded with children and adults. Sally, a JCC member, had been in the main pool and was facing the “wading/baby” pool. According to Sally, “there seemed to be a lot of people, little and big, in the baby pool.” Based on other witness statements, there were 10 – 15 people in that pool at the time of the incident, of which the majority were children.
At 3:38 PM, a staff person is recorded on the security footage tape as entering the pool gate with some children. It is unclear whether the children were being escorted by the Aquatics Director or some other staff person, as the police incident report states that at 3:38 PM the Aquatics Director escorted a group of boys onto the pool deck from the day school. However, Rachel was a deck supervisor for the LKS swim program and stated to the police that she had gone to the day care and walked the kids to the pool.
Although Wyatt was in the custody of Rachel prior to the start of his swim lesson, Rachel had asked the Aquatics Director to watch the children in her group so she could search the computer to obtain the information she needed. The Aquatics Director, confirmed that Rachel had asked her to relieve her so she could access her computer. Both Rachel and the Aquatics Director confirmed that the Aquatics Director had agreed to watch Wyatt. But, according to Lifeguard B, the Aquatics Director then was observed by Lifeguard B to be texting on her cell phone.
Rachel stated to one of the investigating officers that the kids are allowed in the kiddy pool while waiting for their swim lesson to begin. The Aquatics Director stated she was on the east side of the pool and that the two lifeguards were on the west side of the pool. However, no JCC staff person was specifically assigned to supervise Wyatt, even though posted signs at the pool state that parents must be within arm’s reach of non-swimmer children. The Aquatics Director stated she saw Wyatt and his friend, Steven, playing on the lifeline next to the wall.
It is important to note that when Rachel was asked by the police investigator about the use of lifejackets, she told the police officer the kids can wear them if they want. When asked if there was a policy that staff members need to be in the water with the children, she stated there was no policy requiring that. When asked about the rule requiring parents to be within arm’s reach of a non-swimmer, she stated this policy did not apply to staff who bring children into the pool area.
Sharon, a JCC member, stated she had entered the pool area with her son and a friend around 3:30 PM. As they went to the kiddie pool, she observed “2 lifeguards sitting at the shallow end.” After approximately 15 minutes, she observed the two lifeguards still in the same location. Meanwhile, she had observed Wyatt jumping in the deep end of the pool and holding onto the side of the pool, approximately 5 feet from the ladder. She also observed Wyatt violently coughing prior to his submersion.
The police investigators observed there were two lawn chairs on one side of the pool and an elevated wooden lifeguard stand on the opposite side of the pool. According to Lifeguard B, the lifeguards were seated on lawn chairs at the shaded part of the pool. According to Lifeguard S, there is no particular location that lifeguards are required to sit while guarding the kiddie pool. He also stated that the location he was at on this day presented a blind spot in the water and that from his position he could not see Wyatt at the bottom of the pool.
It is important to note that a Police Department investigator assessed the location and efficacy of the deck chairs as compared to the lifeguard stand and stated in his report that “I was unable to see all of the pool surface area due its height and location (from the deck chairs).’ But, from the elevated lifeguard stand, ‘I was able to see all of the pool surface area due to its height and location.”
The swim lesson was scheduled from approximately 4:00 – 4:15 PM. According to Rachel, while waiting for the swim lessons to begin, she allows the older kids to get into the kiddie pool. She had asked the Aquatics Director to watch the kids as she had to attend to something at the desk. When she finished she noticed the lifeguards were pulling Wyatt out of the pool. She then ran into the main building to instruct the front desk to call 911,
Swim Instructor BB was supposed to give Wyatt a private swim lesson at approximately 4:00 PM. He went to the pool looking for Wyatt and asked the Aquatics Director where he was. According to Swim Instructor BB, the Aquatics Director then pointed to another boy and Swim Instructor BB stated that wasn’t Wyatt. When the Aquatics Director further scanned the pool, she saw Steven come up, but did not see Wyatt come up. According to Swim Instructor BB, “that is when we both saw him at the bottom of the pool.” The Aquatics Director then signaled to the Lifeguards to respond.
The Aquatics Director admitted that Wyatt was swimming in the deep portion of the pool and that this is normal practice for the kids to do so before swimming lessons start. The Aquatics Director also stated that Wyatt from the time she relieved Rachel until the incident was only 30 seconds. The Aquatics Director stated that Wyatt was under “longer than normal” so she alerted the lifeguards.
According to the Aquatics Director, “Wyatt was swimming with friends in baby pool… He was by the line and doing dunking up and down in water.” She stated to the police investigator that Wyatt was in the pool with six other kids and that she noticed that Wyatt was in the deep end under water and not moving. The Aquatics Director stated that there was a lifeguard on duty and that the kids who cannot swim are instructed not to go past the roped off area.
Prior to the recognition of Wyatt’s distress, Lifeguard B was sitting and guarding the baby pool and observed the Aquatics Director texting for several minutes. The second Lifeguard was relieving Lifeguard B at approximately 4:00 PM when the Aquatics Director screamed at which time the two Lifeguards ran to the pool. According to Lifeguard B, “he was right in my blind spot” and according to him, “we had only been talking and briefing one another for 30 seconds until we were told of the boy.”
When asked why the children don’t wear lifejackets, the second Lifeguard stated they don’t put them on the children, but doesn’t know why they don’t. He confirmed there were 10 – 15 people in the pool and 90% of them were children.
According to this Lifeguard , he was in the process of relieving Lifeguard B “when it was pointed out that a little boy was sunken at the bottom of the baby pool.” When the second Lifeguard was alerted to the emergency by the Aquatics Director, he then entered the pool and removed Wyatt from the water. That Lifeguard then placed Wyatt on the pool deck. That Lifeguard attempted one rescue breath and then started CPR while Lifeguard Y performed rescue breaths.
When Rachel saw the emergency transpiring, she ran to the front desk to instruct the receptionist to call 911. She then ran back out to the pool to see what was happening. She then ran back into the lobby to get the AED.
According to witness Tom, rescue breathing was initiated by one lifeguard; however, Wyatt’s airway was not properly open and ventilations were ineffective. According to him, he then offered assistance and was able to effectively open Wyatt’s airway and administer rescue breaths.
Lifeguard Y had been guarding in the main pool when he heard the emergency whistles. He ran over to assist and according to him, the second “Lifeguard and I proceeded to do CPR.”
The lifeguards had been performing CPR when Nurse Candy arrived on scene. Nurse Candy told police that Wyatt was not breathing when she took over and that she administered rescue breathing for approximately 8 seconds when EMS arrived and took over. According to Nurse Candy, when she arrived on the scene Wyatt was “very cyanotic and not breathing”. She reported that during the resuscitation effort, Wyatt vomited numerous times.
When the AED advised NO SHOCK, Nurse Candy then began rescue breathing while “maintaining his airway.” “After several breaths, his color turned pink and he began breathing about 4 times per minute.” Nurse Candy then continued rescue breathing until first responders arrived.
Although positive pressure ventilation was provided via mouth-to-mouth, there is no indication that a Personal Resuscitation Mask (PRM) was utilized by anyone, nor is there any mention of the use of a Bag-Valve-Mask (BVM) resuscitator. There is also no indication that oxygen was available or administered prior to the arrival of EMS.
Lifeguard H had been in the pump room when the incident occurred. According to her statement she “got the AED” and “when he was pulled there was no heartbeat but the lifeguards got it back by the time the EMS had arrived. The boy left unconscious but with a heartbeat.”
Officer Ricker stated that it was reported to this officer that the child was underwater for 1 – 2 minutes and that CPR had been administered for approximately 3 minutes prior to the arrival of EMS. The AED was brought to the scene, but no shock was advised. According to the Aquatics Director, the “AED was not shocked because we had breathing and heart rate.” According to witness Tom, who by his own statement participated in the resuscitation effort, the AED pads were applied, but no shock was advised.
Upon arrival of Austin-Travis County EMS, Advanced Life Support protocols were administered and positive pressure ventilation was provided via a BVM with oxygen administration. He was transported to Dell Children’s Hospital.
According to the Austin-Travis County EMS Incident Report: 5-year-old male with submersion injury (08/12/14). Patient was participating in private swimming lesson and was found at bottom of swimming pool. Patient received 1 – 2 minutes of CPR and rescue breathing prior to EMS response. Enroute to ED, patient was provided oxygen administration via BVM and airway suctioning. Lung sounds: bronchi. Estimated down time: 4 – 5 minutes.
Doctor Loas told police Officer Ricker that Wyatt’s condition is very critical and that Wyatt was intubated and not breathing on his own, with pulse ox at 80%.
3:38:21 Aquatics Director enters pool gate with boys
4:01:15 Swim Instructor Rachel arrives at desk
4:01:32 911 call made by Lily Schwartz
4:02:06 AED retrieved from lobby
4:03:09 Nurse Candy arrives on pool deck
4:06:10 Austin Fire Department arrives at security
4:07:38 Austin Fire Department arrives at pool
3:07:41 Austin-Travis County EMS on scene
4:09:29 Travis County EMS arrives at pool
4:13:52 Travis County EMS departs pool for transport to hospital
4:18:44 EMS en-route with patient to Dell Children’s Hospital
The following is a summary of various witness statements:
• Lifeguard H: went to be sure 911 was called and got the AED. Then stood by to direct EMS.
• Lifeguard Y: Assisted the second Lifeguard in administering CPR and within approximately 3 minutes, Wyatt began spontaneous breathing.
• Lifeguard B: was sitting at the baby pool and saw the Aquatics Director take the kids from Rachel and then observed her texting for several minutes. States he was only speaking with the second Lifeguard for 30 seconds when they were alerted to the emergency and that Wyatt was in his blind spot.
• The second Lifeguard: He was relieving Lifeguard B when he was alerted to the emergency. He jumped in and pulled Wyatt out. He administered 1 breath and then started chest compressions while Lifeguard Y performed rescue breaths.
• Swim Instructor BB: Went to the pool at 4:00 PM to give Wyatt’s lesson. Asked the Aquatics Director where he was and the Aquatics Director pointed out the wrong boy. Then they both saw Wyatt at the bottom of the pool and the Aquatics Director alerted the lifeguards.
• Rachel (LKS deck supervisor): After arriving on the pool deck with Wyatt, she transferred responsibility to the Aquatics Director. When the incident occurred, she ran to the lobby desk to instruct them to call 911. Then she ran back in to retrieve the AED.
• The Aquatics Director: Observed Wyatt dunking in the water. She alerted the lifeguards to the incident and “we immediately began to work on him, called 911, and used AED as well.” She states that the AED advised no shock because “we had breathing and heart rate.”
• Thomas K (member): Alerted to incident by the Aquatics Director. Stated when the guards removed Wyatt from the pool, he was unresponsive and the Aquatics Director instructed the guards to start CPR. The lifeguard who was still in the pool started compressions, while the 2nd guard was preparing to give rescue breaths. Thomas assessed that an airway had not been established. Thomas then removed Wyatt’s goggles, “and after repositioning his head, I pinched his nose and gave one rescue breath. I could see his stomach and chest rise, and noticed bubbles coming from his nostrils…. I gave a second breath, saw chest and stomach rise, and the boy began to vomit….” When the AED arrived, Thomas states that he instructed everyone to move Wyatt further away from the pool. He states that he then assisted in the application of the electrodes.
• Nurse Candy: When she arrived on scene, the lifeguards were administering CPR and the Nurse assessed Wyatt to be cyanotic and not breathing. When the AED advised NO SHOCK, she then provided rescue breathing. According to Nurse Candy, “after several breaths, his color turned pink and he began breathing about 4 times per minute.” She then continued with rescue breathing until the First Responders arrived.
• Member Sharon B: States that there were 2 lifeguards sitting at the shallow end. Had heard Wyatt coughing prior to the incident. Observed the lifeguards pulling Wyatt out of the pool on the deep side of the lifeline.