The NTSB hasn’t yet issued its report on the fatal Skylife air ambulance crash in December 2015. But a Fresno judge has ruled that regardless of the cause, the family of one of the paramedics on board will not be allowed to sue either the operator of the helicopter (Rogers Helicopter) or the helicopter’s owner,   (American Airborne), regardless of whether they were negligent in the helicopter’s operation or maintenance.

As it turns out, both entities were partners with the paramedic’s employer, Skylife .  An employee cannot sue his employer for a work related injury or death.  Nor can he sue the employor’s partner.

Such claims are barred by the Workers’ Compensation laws.

 

Earlier this summer, the NTSB asked the FAA to require helicopter manufactures to equip all new aircraft with crashworthy fuel systems.  If history is any guide, we can expect the FAA to ignore that recommendation, despite that the FAA has known of the dangers posed by existing fuel system for decades.

But now Air Methods, one of the nation’s largest EMS helicopter operators, has committed toAir Methods EMS retrofit its entire fleet of more than 70 Airbus AS350 helicopters with fuel systems that don’t needlessly catch fire in a crash. 

Air Methods is committed to retrofitting 100% of our Airbus AS350/EC130 (H125/H130) fleet, and we are working directly with a thried party who is seeking certification for a crash resistant fuel system for the entire Airbus line.. . . For us, it’s about doing the right thing."

The program will be costly.  And Air Methods is taking the action entirely voluntarily.  The FAA does not now require retrofitting, and it’s unlikely it ever will.   

But, as Air Methods says, maybe it is about doing the right thing, rather than the most profitable thing. The question is, will other operators follow?

The air ambulance industry has a poor safety record.  Most of the industry crashes involve EMS helicopters rather than airplanes.  The EMS helicopter fatal accident rate is 6000 times that of commercial airliners.  As it turns out, flying an EMS helicopter is one of the most dangerous jobs inSkyHealth America.

The industry tries to justify the poor safety record by pointing to the “need for speed.”  While acknowledging that the risk of a crash is many times greater for a patient traveling in an EMS helicopter than a ground ambulance, the industry argues that the additional risk is justified because the patient riding in a helicopter usually gets to the hospital sooner.  

That argument has always been questionable. Now, however, it seems that at least one operator is dropping the pretense altogether.  According to SkyHealth, a brand new contractor providing helicopter services to Yale-New Haven hospital patients, it’s really not about speed at all.  It’s really about the equipment on board the helicopter.

When you’re talking about using the helicopter for critical-care patients, people think it’s all about speed. . .  But it’s not about getting to the hospital faster.  It’s really about being able to provide care during transport from one hospital to another.”

The new operator reports that it is flying patients every other day.  But it’s not rushing trauma victims from accidents sites to emergency rooms as you might expect.  Instead, it is moving stable patients from one hospital to another.

With the copter, ‘you don’t have out of hospital time because the crew in the hospital can do the same things as the [ICU]. . .It’s a higher level of care than our ground transport.

Wouldn’t it be safer for these patients and cheaper to simply upgrade the care available in a ground ambulance? 

Stephen Stock, an investigative reporter for NBC, talks about the hazards posed by night vision goggles improperly installed in much of the nation’s EMS helicopter fleet. I was happy to offer Stock my thoughts. The FAA refused to comment on camera.

Imagine how difficult it must be for Rand Foster to go to work each day.

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In 2008, a safety inspector determined that nearly half of the nation’s EMS helicopter fleet–about 300 aircraft–have improperly installed night vision systems. As installed, the systems are a hazard to the air ambulance crews and the patients they carry. The inspector felt the aircraft should be grounded until they were fixed. The FAA initially agreed, but then changed its mind. Apparently, the FAA decided to look the other way because of the "negative publicity" a grounding would generate.

Pretty alarming.  Ultimately, the United States Office of Special Counsel became involved, taking the unusual step of writing to President Obama.

[The United States Office of Special Counsel] found a substantial likelihood that FAA officials and employees engaged in violation of law, rule or regulation, gross mismanagement and an abuse of authority, all of which contributed to a substantial and specific danger to public safety.

It’s been three years, but the White House has done very little.  So now the OSC has written the President again.

The OSC continues to be concerned about the improperly installed night vision goggle systems that plague the nation’s EMS helicopter fleet.  But it is also concerned about a litany of other whistleblower complaints against the FAA that the OSC has received, investigated and substantiated.  The complaints range from FAA personnel allowing Delta Airlines to perform improper maintenance to air traffic controllers sleeping on the job.  The FAA is aware of the complaints, but has done little about them.

One senses a bit of frustration in the Special Counsel’s latest letter:

This transmittal is the final chapter in OSC’s formal oversight process. . .additional enforcement action rests with Congress or the White House.  Given the recurring and serious nature of these concerns, I write with a strong recommendation that more rigorous oversight measures be put in place at DOT and FAA to ensure a higher standard for aviation safety. 

OSC Letter FAA 2012

When an EMS helicopter goes down, our legal system treats the family members of theTerry and VictorTacoronte passengers lost in the accident quite a bit differently from the families of the crew.  For example, while the family members of the passenger may perhaps get their day in court, the claims of the crew members’ families are usually precluded by workers’ compensation law.

We’ve talked about that before hereChristine Negroni, writing about a recent EMS helicopter crash in Kansas City, points out a case where that scenario seems to be playing out now.  The crash killed 58-year old Terry Tacoronte, who was a patient, along with the pilot, the flight paramedic, and the flight nurse. Due to workers’ compensaton laws, it’s likely that only Taraconte’s widower will be permitted to press a lawsuit.

The law seems unfair to crew members.  But as Negroni writes, perhaps by pressing his case, the passenger’s widower will make the industry safer for crew members going forward.

EMS helicopter crash cases aren’t easy.  A lawyer representing a victim’s family ought to have experience in helicopter crash cases.  If he doesn’t, he should bring into the case a lawyer who does.  What he should not do, obviously, is make up for lack of experience by bribing the judge. 

It’s shocking to think that a lawyer would ever bribe a judge.  But that’s what Texas lawyers Jim Solis and Marc Rosenthal did.   The judge admits itSo does Solis.  They bribed the judge for favorable pre-trial rulings, and then, after getting those rulings, they settled the helicopter crash case, Texas Lawyer Marc G. Rosenthalobtaining $15 million for the families involved. Out of the settlement, the attorneys ended up with a $5.2 million fee.

Now the attorneys are being sued by their clients. The clients want that $5.2 million back. According to the lawsuit:

Plaintiffs are innocent and without prior knowledge of Defendants’ criminal acts. Not only did Defendant breach their fiduciary duties to their clients, but in doing so they dishonored the memories of Michael T. Sanchez and Raul Garcia.

Under the law of many states, a lawyer who violates legal or ethical rules can be required to forfeit his or her fee. 

But even if legally entitled to the fee, are plaintiffs morally entitled to it?  After all, how were the families harmed by the lawyers’ scheme? The families ended up with a settlement which, presumably, they found acceptable.

Families who lose loved ones in a helicopter or other crash sue for money.  No doubt about that. But perhaps more importantly, victims’ families sue for justice.  They pay their attorneys to expose wrongdoing and hold accountable those responsible for an accident.  Putting aside all else, the attorneys in this case simply didn’t do that job. The Sanchez and Garcia families did not get what they paid for.  

The case is Sanchez v. Rosenthal et al.

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.
  • “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.

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.

 Fixed wing traffic pattern

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. 

Cessa Crash Site

Emergency Medical Services helicopters don’t get paid for being on call. They earn money only when transporting patients. But, when they do transport a patient, they are paid well — up to $20,000 per trip.

The business model has worked out well for the industry. In fact, the number of EMS helicopters in service has quadrupled since 2002. But since an operator doesn’t get paid unless the helicopter carries a patient, there’s an incentive to fly the mission regardless of how adverse the conditions. And because operators are paid the same rate no matter what equipment they use, operators tend to use older helicopters, and to run them as inexpensively and as ill-equipped as possible.

Not surprisingly, the EMS helicopter fatal accident rate is, when compared to other forms of commercial N502MT - EMS Helicopter Crashaviation, off the charts.  In fact, with a crash rate that is 6000 times that of commercial airliners, flying an EMS helicopter is the second most dangerous job in America. Only working on a fishing boat is riskier.

Some of the reasons why EMS helicopters crash: 

  • Weather.  Inadvertent flight into clouds or fog can cause the pilot to become disoriented and lose control of the aircraft. Thunderstorms can bring a helicopter down in seconds. While accurate weather information is available for airport destinations, it is a rare commodity for the off-airport locations that EMS helicopters typically service. The lack of accurate weather information, coupled with economic pressure to complete the mission, takes a toll.
  • Unprepared Landing Sites. Helipads are designed so that there are no wires, trees or other obstacles for the helicopter to hit during landing or takeoff. The ground is firm and level so that the helicopter won’t roll over when it touches down.  But when responding to a call, EMS helicopters accept landing sites that have been neither surveyed for hazards nor otherwise prepared for helicopter traffic.
  • Terrain.  EMS helicopters crash into mountains, ridges, and hillsides with some regularity. Most of those accidents happen when it’s dark, foggy, or cloudy. “Controlled flight into terrain” is a leading cause of EMS helicopter crashes.
  • Mechanical Failure.  Rotor blades come off, engines fail, and pilots lose control of EMS helicopters due to defective parts or maintenance.

In Part II ("Golden Hour and Other EMS Myths"): With names like “Angel Flight,” “Mercy Flight,” and “Life Flight,” the EMS helicopter companies market themselves as indispensable life-savers. Is this just marketing hype, or are the benefits of helicopter transport really worth the risks?