Aviation Law Monitor : Aviation Lawyer & Attorney : Michael Danko Law Firm : California Airplane & Helicopter Crashes : Aviation Law Monitor

The family of one of the Tesla employees lost in last year's Cessna crash at East Palo Alto has filed suit against the estate of the Cessna's pilot.  The suit alleges that the pilot's decision to takeoff in foggy conditions was negligent.

The air traffic controller told [the pilot]: "The runway is not visible so it's at your own risk." Thirty seconds later, the controller repeated: "I cannot clear you for takeoff because I don't have visibility on the runway, so the release is all yours and it's at your own risk, sir."  [The pilot] replied: "OK," and took off anyway.

The pilot had received his "release."  (". . the release is all yours".)  That means that air traffic control had reserved airspace for him so that, once off the runway, he could safely fly in the clouds.  But the pilot had not been issued a takeoff clearance. ("I cannot clear you for takeoff.")  What was that about?

When a tower controller clears a pilot for takeoff, the controller is assuring the pilot that there is no one on the runway that the pilot needs to worry about hitting.  If the controller can't see the departure path due to restricted visibility, he can't clear the pilot, and so the takeoff is at the pilot's "own risk." 

But just because the controller can't see the runway from up in the tower cab, it doesn't mean the pilot can't.  And as long as the pilot can see what lies ahead, there's really no problem. 

The helipad at Palo Alto airport is on the southwest side of the field.  The tower controller's view of that area is blocked by obstructions.  As a result, every helicopter takeoff, regardless of the weather conditions, is at the pilot's "own risk."  It's up to the pilot to make sure he doesn't hit something.  That's standard procedure.

No one would argue that every helicopter pilot who takes off at his own risk is thereby negligent.  Hard to see why the Cessna pilot should be viewed any differently.

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The FAA has issued a new rule requiring that charter airlines and helicopter operators train their employees in “crew resource management,” or cockpit teamwork, just as the major airlines do.

The FAA estimates that complying with the rule over the next 10 years will cost the charter industry $12 million. But it also expects that the new rule will result in fewer accidents, saving 20 lives over the same period. 

Is it worth it? According to the FAA, yes. Government bean counters figure that the value of a human life is $6 million. So the “savings” to society over the 10 year period is $120 million – ten times the rule’s expected costs.

The government analysis is here.

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Some pilots refuse to fly piston-powered helicopters, insisting instead on turbine-powered machines.  Turbine engines, their argument goes, are much less likely to fail in flight than piston engines. Though more expensive to purchase and to operate, the reliability of turbine-powered helicopters makes them safer than their piston-powered counterparts.

Does that mean the new Robinson R66, with its Rolls-Royce turbine engine, will be a safer helicopter than Robinson's R44, with it's Lycoming piston engine? 

Not according to Robinson.

In fact, for years Robinson has taken a contrarian view, suggesting that pilots are in fact safer in piston-powered helicopters.  Though the large turbine engines used in airliners are incredibly reliable, the small turbine engines used in helicopters are not.  According to Robinson, accident statistics favor piston helicopters. 

Tim Tucker, a Robinson factory pilot, caused a stir when he published the data supporting that argument in a 2003 issue of Rotor and Wing magazine.  Unfortunately, his article, ("Turbine Reliability: Fact or Fiction") is no longer available on the internet (or at least I can't find it). But Robinson R44 owner and flight instructor Philip Greenspun sums up the substance of  the argument pretty well:

Turbine engines have a reputation for extreme reliability, but physically small turbines, such as those that go into low-power helicopter engines, are subject to a lot of thermal stress and are not nearly as reliable as the turbines in an Airbus. Piston engines have a reputation for unreliability, but that was earned when the engines were operated at 100 percent power. The R44 is a demonstration of the most reliability that you could ever get from a piston engine; the Robinson R66 and similar light turbine helicopters demonstrate the least reliability that you could ever get from a turbine engine. . . 

The Robinson factory stops short of saying that the turbine engine makes its new R66 more dangerous than the R44.  But it's not saying that it makes it any safer either. Deftly avoiding the issue, the company president told AOPA Pilot magazine (December 2010 issue): 

The decision to use a turbine engine really had nothing to do with reliability.  Data has shown the Lycoming 0-540 installed in the R44 to be extremely reliable.

But If Robinson believes small turbine engines are less reliable that the piston engines, then why is Robinson introducing a turbine-powered helicopter at all? 

According to Robinson, the market wants a helicopter with improved performance at high altitude and a better power-to-weight ratio.  It also wants a ship that can use jet fuel, since avgas is in some parts of the world becoming harder to come by. Only a turbine-powered helicopter can meet those demands.

Fair enough.  Just don't think that shelling out the big bucks for the R66 ($790,000 for the R66 vs. $415,00 for the R44) is going to buy a greater extra margin of safety.  In fact, if you believe what Robinson has been saying about small turbine engines for the past 10 years or so, the R66 should prove to be less reliable, and thus less safe, than Robinson's cheaper piston version.

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Why does the public accept the EMS helicopter industry’s horrible safety record? Because the industry has sold the idea that it’s critical to deliver trauma victims to a hospital within the first “golden hour” after an injury.  While the industry acknowledges that the EMS helicopter accident rate is high, it argues that many more lives are saved by EMS helicopters than are lost.    

The logic is appealing.  But it doesn’t wash. Here’s why.

• The Need for Speed.  Though helicopters are fast, when it comes to getting the patient to a hospital, a ground ambulance is often faster. At least in urban areas, ground ambulances are more widely distributed than EMS helicopters. That means a ground ambulance is more likely to be stationed closer to the trauma victim. A well-positioned ground ambulance can often get to the trauma victim and deliver him to a nearby hospital quicker than a helicopter can. By and large, a helicopter’s speed advantage is limited to rural environments, where ground ambulances are fewer and farther between. The helicopter’s speed advantage is overrated.

• The Myth of the Golden Hour. There is nothing “golden” about the first hour after the accident.  At least not for the patient.  That’s because survival rates do not drop off precipitously 60 minutes after an injury.  In fact, the peer reviewed studies have been unable to establish that there is any “magical time” for saving trauma victims. Sure, getting the patient to the hospital quickly is generally better. But the “golden hour” argument is marketing hype.

• “Life Flights” That Aren’t.  At 12 year-old was airlifted from summer camp to a hospital in Austin, Texas after she hit her head in the shower. The bill for the flight was $16,000. Upon arrival at the emergency room, she was treated, and then sent back to her summer camp.  Such stories aren't unusual.  In fact, some studies show a third of all patients delivered to emergency room by helicopter are released without ever being admitted to the hospital.

• Pricey Shuttles.  Many EMS helicopter flights are inter-hospital transfers merely shuttling patients between hospitals. Operators love these profitable gigs. One calls the transfer patients “golden trout,” and encourages pilots to “hook” every one they can, regardless of how bad the weather conditions. No matter that, since the patient is already at a hospital, these transfers seldom classify as “emergencies.”

This is not to say that EMS helicopters never make a difference for trauma victims.  But much less often then the industry would have us believe.  One study showed that, at most, only 22% of those transported by EMS helicopter to Silicon Valley hospitals could be considered to have "possibly" benefited from the air ambulance. Other studies suggest that, even in cases involving serious trauma, helicopter transport improves the patient’s outcome less than 5% of the time. That means that 95% of the time the helicopter exposes the critically injured patient to an unnecessary risk. 

The industry has oversold the need for EMS helicopters. The benefits simply do not outweigh the risks.

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The EMS helicopter was returning to Shenandoah Valley Regional Airport in Virginia, having dropped off a patient in nearby Charlottesville.  Reports differ on whether the Cessna was departing the airport or returning to the airport for landing.  The Cessna and the helicopter collided.  Though the helicopter landed safely, both occupants in the Cessna were killed.

No Control Tower

There’s no control tower at Shenandoah Airport. The primary means of preventing collisions at airports like Shenandoah is called “see and avoid.” That means that pilots are supposed to look out their windows, see other aircraft, and avoid them. 

Helicopters and Airplanes Don’t Mix Well

Though the "see and avoid" method may sound primitive, over the years it has worked well, and mid air collisions are relatively rare.  But helicopters don’t mix well with airplanes in a "see and avoid" environment.  Helicopters tend to fly slower than airplanes and, because they have a small cross section, they are hard for airplanes to spot -- especially when viewed from directly behind. 

Because of that, when near an uncontrolled airport, helicopter pilots are supposed to "avoid the flow" of airplane traffic.  In other words, as best they can, helicopters are supposed to stay out of the way of airplanes.  Sometimes that’s easy enough. For example, if the airplane traffic flies on one side of the airport (see below), the helicopters generally should fly on the other side. Or, the helicopter can fly at an altitude that is lower than the altitude at which the airplanes are flying.

The above diagram depicts a left-hand traffic pattern for fixed-wing (airplane) traffic similar to the pattern used at Shenandoah Airport.  Airplanes typically fly the traffic pattern at 1000 feet.  To avoid the flow of that traffic, helicopters might fly a right-hand traffic pattern on the other side of the runway, and fly no higher than 500 feet.

One question will be whether the Cessna was operating within the "flow" of fixed wing traffic when the collision occurred and, if so, why the EMS helicopter did not avoid that flow. 

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I often write about the NTSB's "party system." That's the NTSB's practice of asking airlines and manufacturers for help in determining an accident's cause.  If you ask me, it's a bit like asking the fox for help in figuring out what happened to the chickens. The party system allows industry participants to bias NTSB probable cause findings in their favor.

The NTSB allows party participants to handle evidence and perform certain engineering tests.  But one thing the NTSB insists on doing all by itself is downloading the data from an aircraft's black boxes.  The NTSB's labs in Washington DC are well equipped for that job, and it doesn't require any "help" from the airlines. 

The Safety Board learned that the recorders were flown to Tulsa, Okla., where American Airlines technicians downloaded information from the DFDR. . .

Because maintaining and enforcing strict investigative protocols and procedures is vital to the integrity of our investigative processes, we have revoked the party status of American Airlines and excused them from further participation in this incident investigation.

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