Who can be held responsible for compensating the Mountain Lifeflight families, and who is immune from suit?   

Maintenance.  If faulty maintenance is proven to be the cause of this helicopter crash, the families can recover against the maintenance company, provided that the families can prove that the maintenance company was negligent.  There is an important exception, however.  The families cannot sue the company that performed the maintenance if that company was Mountain Lifeflight itself.  That’s because the worker’s compensation laws immunize a crew member’s employer from suit brought by the crew member’s family.  More on that here.

Pilot error.  There is no reason to believe that the crash was caused by pilot error.  To the contrary, as discussed here, it looks as though the crash was likely caused by a mechanical failure.  However, assuming for argument’s sake that the crash was caused by pilot error, the workers’ compensation laws prohibit the families from suing either the pilot’s estate or the pilot’s employer.

Design defect.  Other A-Star accidents similar to this one raise the question of whether the crash was caused by the helicopter’s faulty design.  The families are entitled to sue the aircraft’s manufacturer, Eurocopter, and get to the bottom of the design defect issue.  If the families prove that the crash was in fact caused by a defect in the design of the helicopter, then they can hold Eurocopter responsible.

But there is one hurdle the families must overcome before winning a design defect suit.  The accident helicopter, N5793P, was manufactured in 1982.  The General Aviation Revitalization Act, or GARA, immunizes manufacturers from liability from lawsuits arising from aircraft that are older than 18 years.  At first blush, it would seem that the families have no recourse against the manufacturer at all.  But there is an important exception to GARA.   If the accident occurred as a result of a new part that was installed on the aircraft less than 18 years before the accident, the manufacturer can’t assert the defense, no matter how old the aircraft.  And it has been reported that N5793P had been completely rebuilt only a few years before the crash.  Therefore, even though the helicopter was manufactured more than 27 years ago, it’s likely that most critical parts on the aircraft were less than 18 years old, and that GARA won’t protect the manufacturer.

The NTSB’s preliminary report on the crash contains little more than what was in the news accounts. The report does, however, offer one bit of new information.  The helicopter impacted on a magnetic heading of 230 degrees.  That heading is not in line with the route from Reno to Susanville.  While that might ultimately prove to be important, little can be made of that information without a careful examination of the layout of the terrain near the accident site and the roadway that the pilot might have been using to aid in his navigation.     

Though the information in the NTSB’s official report is sparse, an NTSB spokesman did offer his expanded comments to Mary Pat Flaherty, a reporter for the Washington Post who has been following the poor EMS safety record during the past months. The NTSB’s Ted Lopatkiewicz told Flaherty that the Mountain Lifeflight helicopter didn’t have certain important safety equipment.  Lopatkiewicz was referring to the helicopter’s lack of an autopilot, a ground proximity warning system, night vision goggles (discussed in this post), and other equipment necessary to navigate in poor weather.

But in this case the pilot was flying in good weather.  He did not collide with the ground because he could not see it.  Rather, as discussed here, it appears that the pilot crashed because of some type of mechanical problem with the helicopter.  It’s unlikely the helicopter’s lack of advanced equipment played any role in the accident at all. 

Related Posts:

Compensating the Families of the Mountain Lifeflight EMS Crash

Mountain Lifeflight EMS Helicopter Crash at Doyle, California

EMS Helicopter Safety: NTSB Pushes the Envelope

OSC: FAA Ignoring EMS Helicopter Dangers For Fear of Negative Publicity 

An A-Star AS350B air ambulance helicopter crashed November 14 at Doyle, California, killing the A-Star Helicopter that Crashed Saturdaythree crew members on board.  According to an article in the Reno Gazette Journal, the pilot made a distress call before the crash. That indicates that the pilot was likely experiencing a mechanical emergency. The photographs accompanying the article show that the wreckage was spread over a fairly large area.  That indicates that the pilot lost control of the helicopter well before he was able to attempt an emergency landing.

Under the circumstances, the NTSB will be looking at the helicopter’s

Continue Reading Mountain Lifeflight EMS Helicopter Crash at Doyle, California

There’s little question that EMS helicopters are the most dangerous aircraft in the sky. EMS helicopters have a fatal accident rate 6000 times that of commercial airliners. Flying EMS helicopters is one of the most dangerous jobs in America.  In fact, according to the Washington Post, only working on a fishing boat is riskier.  And the EMS helicopter safety record is getting worse, not better.

EMS helicopterWhy, exactly, is the EMS helicopter accident record so bad?  As discussed here, one problem is that it’s not clear who is ultimately responsible for overseeing the industry. State agencies, county agencies and the federal government all have a hand in oversight but no one appears to be in charge. That means that definitive industry standards cannot be established and hazards cannot be effectively managed.

This week, the NTSB recommended that the FAA take steps to address the most serious of the industry’s problems. Some of the those recommendations are not particularly surprising. For example, the NTSB suggests that pilots be better trained in bad weather flying, and that helicopters be equipped with night vision equipment and autopilots.

One of the NTSB’s recommendations, however, no one saw coming.  The NTSB suggests that Medicare — which funds most of the EMS helicopter industry by paying up to $20,000 for each patient transport — adjust its rate reimbursement structure according to the level of safety the helicopter company provides.  In plain english, the NTSB suggests that Medicare not pay air ambulance companies unless they meet certain safety standards.  NTSB board member Robert Zumwalt concedes this recommendation "pushes the envelope".  But the air ambulance record is so bad, extreme steps are necessary.

By targeting the air ambulance industry’s source of funding, the NTSB is looking beyond the FAA for help in making the air ambulance industry safer.  Why not just leave it to the FAA?  For one thing, the FAA has yet to act on the EMS helicopter recommendations the NTSB made 3 years ago.  The NTSB is hoping the Department of Health and Human Services (Medicare) will be more responsive to its safety concerns than the FAA has been. 

The FAA is supposed to use its regulatory powers to promote aviation safety.  Over the years, however, it seems to have become too bureaucratic and conflicted to take decisive action when it counts most.  Examples:

Now, there’s more.  In 2008, an FAA 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.

Huh?  Since when should the FAA be concerned more with negative publicity than with safety?

Recently, the United States Office of Special Counsel became involved.  Special Counsel, however, has been unable to get the FAA to respond to its inquiries.  So it has taken 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.

The Office of Special Counsel appears more interested in EMS Helicopter safety than does the FAA.  We’ll see what happens next.

OSC Letters

Special rules protect careless health care providers in California.  The rules, collectively known as MICRA, were designed to make it harder for medical malpractice victims to sue the doctors who injure them. For example,

  • The medical malpractice victim must provide the defendant doctor a special notice before filing suit.
  • At any trial, special rules of evidence apply that favor the doctor.
  • There is a $250,000 limit on what the negligent doctor or his insurance company ever has to pay to compensate parents when the doctor causes their child’s death.
  • An injured party cannot recover against a negligent doctor more than the $250,000 limit for causing any sort of pain or disfigurement. 

But what do the MICRA rules have to do with helicopter crash cases?

In March 2008, a California court of appeal ruled that the medical malpractice rules apply to the claims of a someone injured in an ambulance.  In that case, called Cannister v Emergency Ambulance Service, the court ruled that a negligent ambulance company that injures a patient en route to the hospital was entitled to all the EMS Helicopter by JPCprotections of MICRA, because the ambulance company was properly considered a “health care provider.” The ruling extended the umbrella of MICRA’s protection from doctors to ambulance drivers, at least when those drivers are licensed as EMT’s.

An EMS air ambulance company will undoubtedly argue that Cannister — regardless of how unfair — applies not just to road-bound ambulances, but to air ambulances as well. The aviation lawyer must keep the MICRA rules in mind in handling EMS helicopter accidents in California, and he should be familiar with the strategies that medical malpractice lawyers use to minimize MICRA’s unfair impact on his clients.  

Flight Safety Foundation has released a study identifying the most significant risks involved in the helicopter air ambulance industry. The safety study was undertaken in response to the industry’s increasingly poor safety record.

According to the 64 page report (pdf), one of the biggest problems is that it’s not clear who is in charge of overseeing the industry.  State agencies, county agencies, and federal agencies all have a hand in regulating air ambulance operations but there is little coordination between them. Because no one agency is clearly in charge, hazards cannot be appropriately identified or managed, and definitive industry standards cannot be established.  

The report went on to identify 25 other significant risk factors.  Among the problems discussed:

  • Good decisions aren’t being made about whether a patient actually needs air transport.  Unnecessary flights lead to increased crew pressure and fatigue.
  • The industry lacks a real “safety culture.”  That can give rise to environments that reward inappropriate risk-taking behavior.
  • There is not enough money available to upgrade the EMS helicopters with current technology.
     

The report was underwritten by Bell Helicopter.  Though interesting reading, there’s little in the report that those familiar with the air ambulance industry would find surprising.

A reader of this post concerning air ambulance accidents asked, “Can the FAA really get away with ignoring the NTSB?"  The answer, to date, is "yes."  And there’s nothing the NTSB can do about it.

The whole reason the NTSB exists is to learn from accidents and make safety recommendations so that similar accidents won’t happen again. But the NTSB has no power to make anyone, including the FAA, follow its recommendations.  And so, frequently, the FAA just ignores them.

Of course, ignoring NTSB recommendations can lead to loss of life. Some feel that the crash of Continental Flight 3407 in Buffalo might have been avoided, and 50 lives saved, had the FAA acted on the NTSB’s safety recommendations concerning turboprop planes and airframe ice. But the FAA never did, despite that some of those recommendations are now more than 10 years old. Even by goverment standards, ten years is a long time to sit on something. 

But back to air ambulances: The NTSB studied 55 air ambulance crashes occurring between 2002 and 2004 in which 54 people were killed.  As a result of what it learned, the NTSB recommended (pdf) that air ambulance companies be required to, among other things: 

  • equip their helicopters with terrain warning systems;
  • ensure that their pilots have good weather information before taking off; and
  • ensure that their pilots get adequate rest. 

All straightforward stuff that is hard to argue with. 

That was back in 2006.  Since then, another 9 air ambulances have crashed, killing 35.  Still, the FAA hasn’t acted on the recommendations. Though there has been some response from the FAA, the NTSB calls the response "unacceptable." 

One might wonder: if the FAA is free to ignore the NTSB, and has a record of doing just that, then what’s the point of even having an NTSB?

Good question.
 

Well, that seems to be what the National Transportation Safety Board said today when it commented on the preliminary accident statistics for 2008.

The NTSB’s comment:

The 2008 accident statistics reveal a mixed picture. . . We are particularly concerned with the spike in fatalities in on-demand air charter operations. There’s a lot of room for improvement in this area, and as evidenced by our recent forum on emergency medical service helicopter accidents, we continue to do everything we can to identify the safety issues involved, and to advocate for the adoption of our recommendations that will make the skies safer.

Our Translation"The 2008 accident statistics wouldn’t look bad except for all the air ambulance helicopter crashes.  We’ve got some ideas on how to make air ambulance operations safer, but the FAA keeps ignoring us.  As usual."