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 victim of an airplane or helicopter accident must act on his rights or lose them forever.  That means the victim must file a lawsuit by the appropriate deadline.  In some cases, the victim must first file a special claim form with the right governmental agency.  If he fails to do so on time, or files it with the wrong agency, he willl not be permitted to later sue the government agency that is responsible for his injuries.

The deadlines vary according to the type of claim as well as other factors. A victim should consult an aviation lawyer to determine which deadline applies.  Some of the more common deadlines that may apply in California cases:

  • Cases involving International Air Travel (Warsaw and Montreal Conventions)  – Lawsuit must be filed within 2 years of the aircraft’s arrival (or expected arrival) at the destination.
  • Cases against California Governmental Entities (such as those involving municipal airports) – Victim must file a special governmental Claim Form (pdf) within 6 months of accident or no lawsuit is thereafter allowed; lawsuit must be filed no later than 6 months after the governmental agency rejects the claim.
  • Cases alleging negligence or products liability (including design defect)  – Lawsuit must be filed within 2 years of accident.
  • Cases against the Federal Government (such as those involving weather reporting or air traffic control errors) – Victim must file a special Federal Tort Claims Act Claim Form (pdf)  within 2 years of accident or injury; suit must be filed no later than 6 months after government rejects the claim.
  • Cases against EMS Helicopter/Air Ambulance Operators, if MICRA applies – Lawuit must be filed within 3 years of accident; other pre-filing requirements may apply.  Otherwise, lawsuit must be filed within 2 years of accident.
  • Claims against the estate of someone who caused the accident but who has since died are often subject to shorter statutes of limitations than set forth above.  Some deadlines are as short as 6 months.

Additional deadline:

  • Cases against aircraft manufacturer – (including those alleging design defect) –  No lawsuit allowed if accident occurred more than 18 years after date of manufacturer of aircraft of part causing the injury, subject to certain exceptions set forth in the General Aviation Revitalization Act. 

Some deadlines are extended under special circumstances, such as when the victim is a child.  On the other hand, some deadlines, like the 2- year Warsaw Convention deadline, are not extended for any reason.

Maintenance manuals tell the mechanic when to perform an inspection or service, and how to perform it.  Many mechanics believe that the regulations require them to follow the book exactly.Aircraft Mechanic But in an excellent column on this murky subject, mechanic and aviation author Mike Busch sums up the regulatory requirements nicely:

The manufacturer’s “how-to” instructions are compulsory, but the manufacturer’s “when-to” instructions are not.

Let’s say, for example, that the manual requires the aircraft’s spark plugs to be removed and regapped every 100 hours. If a mechanic decides to service the aircraft’s spark plugs, he must do it exactly as instructed in the aircraft manual. The regulations, however, do not require the mechanic to follow the manufacturer’s instructions at all concerning when or how often to service the plugs, regardless of how much time the engine has accumulated. As Busch explains:

No manufacturer can mandate any maintenance requirement on a part 91 aircraft owner; only the FAA can do so.

There is another part of the story, however, that Busch’s column doesn’t address. The FAA regulations are bare minimum requirements only.  If an accident occurs because the mechanic failed to comply with the manufacturer’s recommendations, questions can arise as to whether the mechanic was negligent – that is, not reasonably careful — and thus liable to those injured as a result.  A jury may conclude that, though the regulations didn’t require him to, a reasonably careful mechanic would have followed the manufacturer’s recommendations anyway.  After all, does a reasonably careful mechanic believe he knows better than the manufacturer? 

Aviation manufacturers have long argued that victims should not be permitted to sue for aircraft design defects because, before any manufacturer’s aircraft leaves the ground, its design has to be approved and certified by the FAA. If the aircraft’s design is good enough for the FAA’s engineers, they argue, it should be good enough for the court system.  Judges and juries should not be permitted to second guess the FAA.

Aviation attorneys representing victims of air crashes take a different position.  They argue that the FAA "approval" process is not really an independent safety review of an aircraft’s design at all.  FAA Certification ProcessRather, the FAA certifies aircraft based largely on the say-so of engineers who, though designated by the FAA, are in fact employees of the manufacturer seeking the certification. The issue of whether an aircraft’s design is defective is thus appropriately left to the judgment of an independent jury. In short, the fact that the FAA certified a design doesn’t really mean all that much. 

Now FAA certification of an aircraft’s design will mean even less — at least with regard to Boeing aircraft.  That’s because the the FAA will drop out of the certification process completely for certain Boeing products.  Beginning August 31, the FAA will allow Boeing to self-certify its designs. The FAA will not even do the rubber stamping — Boeing employees will do that too. According to the Seattle Times, 

The new system increases the authority of the in-house inspectors directly managed by Boeing, allowing them to review new designs, oversee testing to ensure the products meet all applicable standards, and sign off on certification. 

We count on the NTSB to get the facts right. That confidence is, unfortunately, sometimes misplaced. The truth is that the NTSB gets it wrong. A lot. I’ve written about that here, here, and here.

The NTSB has now given us further reason to question whether it deserves the confidence weATC Radar place in it. On Friday, the NTSB came out with a block-buster press release condemning the Teterboro air traffic controller who had cleared the Piper airplane for takeoff. According to the NTSB’s report, the Teterboro controller could see on his radar screen that the Piper pilot was on a possible collision course with the Liberty Tours helicopter. In fact, according to the NTSB, the controller could see the conflict before the Piper pilot switched off from the Teterboro controller’s frequency. Yet, according to the NTSB, the controller failed to warn the Piper pilot.

At 1152:20 the Teterboro controller instructed the pilot to contact Newark on a frequency of 127.85. . . At that time there were several aircraft detected by radar in the area immediately ahead of the airplane, including the accident helicopter, all of which were potential traffic conflicts for the airplane. The Teterboro tower controller, who was engaged in a phone call at the time, did not advise the pilot of the potential traffic conflicts.

That was wrong. True, the controller was on the phone when he should not have been.  But the helicopter did not appear on the controller’s radar screen until after the Piper pilot was supposed to have switched to a new frequency. Of course, by then it was too late for the controller to advise the pilot of anything. In other words, it appears that there was nothing the controller could have done — whether he was on the phone or not.

Over the weekend, the air traffic controllers’ union privately asked the NTSB to correct its error. The NTSB refused. So today the union issued its own press release setting the record straight.  The press release claims that the NTSB’s account, which implies that the controller should have prevented the accident, is "outright false" and "misleading."  Worse, it charges that the NTSB knows it, but refuses to correct its error.

This afternoon, after the controllers’ union went to the press, the NTSB finally conceded that it was, in fact, wrong. It thus issued a new press release, explaining that the controller could not have seen the helicopter after all.

The accident helicopter was not visible on the Teterboro controller’s radar scope at 1152:20 [when the controller instructed the Piper to change frequencies]; it did appear on radar 7 seconds later – at approximately 400 feet.

The NTSB offered no apology for its error. Nor did it offer an explanation. Rather, despite that the union was right, and the NTSB was wrong, the NTSB’s only reaction was to kick the union off the investigation.

The NTSB’s blunder was a whopper. It laid blame for the accident where it does not appear to belong.  The NTSB’s only interest is supposed to be in getting the facts right. If that’s so, why did it not correct its error when the union asked it to?  Why did it require the union to force the issue? 

The costs of litigating an aviation accident case can total hundreds of thousands of dollars. The expenses may include expert fees, deposition costs, investigation costs, and court fees. Under the contingency fee agreement, the client does not pay any litigation expenses. Instead, the attorney does. The attorney is reimbursed only if there is a settlement or a judgment in the client’s favor.

Not all attorneys have the financial strength to fund a case properly. As the case progresses, some attorneys may feel pressure to settle on terms that aren’t in the client’s best interests because they can’t afford to risk their “investment” at trial. Defendants can sense when a plainitff’s attorney cannot afford to try a case and take advantage of that weakness. Therefore, before signing a contingency fee agreement, the client should satisfy himself that the aviation attorney is capable of funding the litigation all the way to the end.
 

Only certain family members can sue for compensation for the loss of a loved one in an aircraft accident. Those family members may all agree to have the same attorney represent them. Though that is usually best, it is not always possible. When the family members don’t agree, or their interests diverge, each family member is entitled to his own attorney.
 

Aviation accidents are newsworthy events, and the victims’ names and hometowns often end up in the papers. When that happens, disreputable lawyers descend upon the family members, hoping to sign the families to retainer agreements when they are most vulnerable.

State ethics laws generally prohibit lawyers from making uninvited in-person or telephone contact with a victim’s family to solicit business. Some states allow attorneys to send the families letters or emails, but even then there are limitations and restrictions on what the letters or emails may say.

If an aviation accident qualifies as a major airline disaster, then federal law comes into play. Federal law prohibits an attorney from making any uninvited contact with a relative of a passenger killed in a major airline disaster during the first 45 days after the crash. The law prohibits attorneys not just from making contact in person or through phone calls, but from sending emails or letters as well. The federal law applies to keep away not just lawyers seeking to represent the families, but also those hired by the airlines or insurance companies. 

Compared to pilots in other countries, pilots in the US have extraordinary freedom. Of course, to keep commercial airliners safe from collisions, pilots of small aircraft are excluded from certain Author Over Statue of Libertyairspace near major airports unless they have first obtained a clearance from air traffic controllers.  If a pilot obtains the necessary clearance, controllers will dictate the pilot’s path and use radar to monitor the pilot’s every move. 

But that still leaves many places where pilots are permitted to fly without being supervised or controlled in any way.  One such area, appropriately enough, is near the Statue of Liberty.  As long as the pilot stays below 1100 feet — outside the airspace used by airliners — the pilot doesn’t need a clearance, doesn’t need to have filed a flight plan, and doesn’t need to communicate with any tower or other air traffic control facility. The pilot is totally on his own.

Many non-pilots are surprised to learn that the method used to prevent collisions in such uncontrolled areas is called "see and avoid."  The pilot is supposed to look out his window, "see" the other aircraft, and "avoid" them.  Pilots talk about having to "keep their head on a swivel" when flying in uncontrolled airspace. Though this method of collision avoidance may sound primitive, over the years it has worked well.

There is one problem.  Helicopters and airplanes don’t mix well in a "see and avoid" environment.  Helicopters fly slower than airplanes.  And because they have a small cross section, they are hard to spot — especially when viewed from directly behind. That puts them at risk of being rear-ended.  It doesn’t help matters that helicopters tend to manuever in a fashion that most airplane pilots find to be unpredictable. 

Because of all that, helicopter pilots are supposed to "avoid the flow" of airplane traffic.  In other words, as best they can, they are supposed to stay out of the way. Unfortunately, when both a helicopter and airplane are headed to the same spot, or are both looking at the same feature on the ground, that can be difficult to do.

We don’t know what factors combined to result in the midair over the Hudson.  But the NTSB has long recognized that when it comes to uncontrolled airspace, helicopters — especially tour helicopters — don’t mix well with airplanes.

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