Mike Slack featured in American Association for Justice Professional Negligence Law Reporter, Volume 24, No. 4, May 2009. Full story below.
In response to a dramatic spike in the number of fatal medical helicopter crashes last year, the National Transportation Safety Board (NTSB) held a four-day hearing in February to evaluate how to make the industry safer. The hearings came amid a heated debate within the industry about whether air ambulances are being overutilized.
After a decrease in helicopter emergency medical services (HEMS) crashes in 2006 and 2007, in which there were five and seven fatalities, respectively, the number of deaths sharply increased in 2008. In the deadliest year on record, there were 13 HEMS incidents, resulting in 29 fatalities and prompting a public outcry that put the air ambulance industry in the spotlight. Noting that about 400,000 patients and transplant organs are transported by helicopters each year, NTSB board member Robert L. Sumwalt III, who chaired the hearings, called the rash of incidents “alarming” and “unacceptable.”
The hearing included a five-member board of inquiry, a technical panel of 13 members, and 41 witnesses, as well as numerous exhibits. “Our goal is to obtain the perspectives of every facet of the HEMS industry,” said Sumwalt. Opening State. by Hon. Robert L. Sumwalt, Chairman, Bd. of Inquiry, Safety of Helicopter Emergency Medical Services (HEMS) Operations, NTSB (Feb. 3, 2009), available at http://www.ntsb.gov/.
Although medical helicopters have been in use since the 1970s, they became much more common after the federal government agreed to reimburse providers for the services in 2000. The National Association of State Emergency Medical Services Officials estimates there are more than 830 helicopters currently in use, many operated by private, for-profit operators rather than hospitals. The flights are inherently more dangerous than routine helicopter flights because they are often made at night or in inclement weather and involve landings in unprepared areas. “They tend to operate in and out of urban settings, around buildings, and they’re called upon to fly on demand with minimal time for preparation or risk assessment,” says AAJ member Michael L. Slack, of Austin, Texas, who has handled air ambulance cases for many years. “They also go to landing areas that are typically not designed for helicopters to land in and have high wires, fences, and uneven terrain.”
Complicating matters, pilots are often under extreme pressure to accept an assignment even when it might not be safe. According to FAA notice 8000.301, “the pilot’s authority to decline a flight assignment is supreme, while his/her decision to accept a flight assignment is subject to review, if certain risks are identified.” But patient advocates argue that operators and hospitals sometimes push pilots to take on risky, but lucrative, flights, and many pilots are paid per flight rather than on a salary basis. Further, air ambulance pilots are in the profession so that they can help patients. “Pilots have a rescuer’s instinct,” says Slack. “They believe they are capable of getting in and out of anywhere in a helicopter to help someone.”
Alicia Goodwin’s parents know how devastating a pilot’s miscalculations can be. After Goodwin, who was 27, was struck by a vehicle on an interstate in the early morning hours, a county 911 dispatcher began searching for an air ambulance to help her. One helicopter accepted the assignment and departed, only to return to base two minutes later due to fog. While that dispatcher was contacting two other companies, who refused to make any flights until the fog cleared, another dispatcher contacted pilot Robert Giard, who agreed to take the mission without being told that another company had attempted the mission and two others had refused.
Within a few minutes of loading Goodwin–whose injuries were allegedly not life-threatening-aboard, the helicopter collided with the tops of several trees and crashed. All of the helicopter’s occupants, including Goodwin, the pilot, a flight nurse, and a paramedic, were killed in the ensuing fire. Goodwin’s parents, individually, and her mother, on behalf of her estate, sued the company that operated the helicopter service and the pilot’s estate, alleging that attempting the flight in dangerous weather violated FAA regulations. The parties settled for a confidential amount. Wallace v. Med-Trans Corp., 50 AAJ L. Rep. 80 (Apr. 2007). The plaintiffs were represented by AAJ members Jeffrey R. Harris, Andrew M. Scherffius, and Darren W. Penn, all of Savannah, Georgia; and Grady E. McMehan, of Rock Hill, South Carolina. Documents in Wallace are available, courtesy of plaintiffs’ counsel.
Given the dangers, the NTSB has long advocated strict standards for risk assessment, operation specifications, and instruments involved in air medical transport. But the NTSB does not regulate the industry-it makes recommendations to the FAA that it hopes will get implemented. The FAA has been slow to act on many recommendations the NTSB has made in the past. In 2006, the NTSB conducted an investigation after 55 HEMS crashes occurred between 2002 and 2005, resulting in 54 fatalities and 18 serious injuries. The board found several areas of concern and made four recommendations to the FAA. It urged the agency to require adherence to strict commuter aircraft regulations, regardless of whether patients are on board; develop and implement flight risk evaluation programs; require a formal dispatch procedure that includes assessing up-to-date weather information; and install terrain awareness and warning systems. Special Investigation Report on Emergency Medical Services Operations, NTSB (Jan. 25, 2006), available at http://www.ntsb.gov/.
Since that investigation, the FAA has revised only the regulation specifying weather minimums that must exist before a flight may be dispatched, and that was in January of this year. 74 Fed. Reg. 4277 (Jan. 23, 2009). The NTSB is so displeased with the FAA’s inaction that it has placed the recommendations on its 2008 “Most Wanted Safety Improvements” list, available at http://www.ntsb.gov/, labeling the status of the other three recommendations “Open-Unacceptable Response.” Noting that the FAA has issued numerous notices and offered guidance to address the issue, the board said those actions are ineffective because they merely provide information the agency encourages operators to incorporate, without the weight of enforcement behind them. “NTSB is doing a marvelous job in recommending safety procedures to prevent helicopter crashes,” says AAJ member and past chair of the AAJ aviation law section Gary C. Robb, of Kansas City, Missouri. “But we have seen an appalling lack of FAA regulatory oversight in the last seven years. It encourages companies to voluntarily police themselves, which isn’t working.”
The loose regulatory oversight has allowed HEMS operations to pervade the emergency medical services industry, some critics argue, resulting in an overutilization of helicopters rather than ground transport. “There’s an economic incentive to send an air ambulance versus a ground ambulance because the hospital gets paid more, even if it’s not safer for the patient,” Robb says. Pointing to several supportive studies conducted over the years, both Robb and Slack argue that an overwhelming majority of patients transported by helicopter have non-life-threatening injuries and could be more safely transported by ground ambulance. Additionally, they often take longer to reach a hospital, particularly in urban settings, which have ground transport readily available.
The Association of Air Medical Services (AAMS) argues that helicopters are necessary to reach trauma centers in one hour, known as the “golden hour,” and notes several studies that support its view. Press Release, Media Statement on the Medically Appropriate Uses of Medevac Helicopters, Sandy Kinkade, President, Association of Air Medical Services, AAMS (Feb. 4, 2009), available at http://www.aams.org/. Disagreeing, Robb says “In rare cases, two or three extra minutes makes a difference, but in the vast majority, it does not.”
Among many other recommendations, Slack argues that a medical screening process should be implemented, in which a medical professional evaluates a request for an air ambulance when it first comes in to determine whether air transport is actually necessary. If the screener determines it is, the request would then be referred to the pilot, who would not be told of the details surrounding the patient’s injuries and would just be responsible for conducting a risk assessment to ensure the flight would be safe. Under this system, he says, the pilot is “not tempted to take a trip because they learn a child is severely injured,” and helicopters are used only when medically necessary.
Right now, it is unclear what actions the NTSB will take in the wake of the hearings. Board chairman Sumwalt says it could conduct an updated safety study, issue more recommendations, or create a white paper, but none of those actions will directly impact the regulatory structure. Slack expressed disappointment in the NTSB’s attitude at the hearings. “The NTSB was a little timid and hesitant in the way it approached the issues,” he says. “It was very deferential to the industry and the FAA.” Without FAA cooperation, little progress will result. “We have these systemic problems, and it just happens that we had more incidents in 2008,” says Slack. “As long as I’ve been doing this, the FAA has been a decade or so behind what the NTSB wants it to do. It’s a comatose agency. We could have the same thing repeat itself in two or three years if changes aren’t made.”
Case against hospital that contracted out helicopter services is pending before New Mexico high court
Slack is currently representing the parents and estate of Damon?Talbott, a police officer who was undergoing a helicopter training program when the helicopter crashed after the pilot attempted to demonstrate a risky maneuver. The helicopter company had been contracted by a hospital to provide air ambulance services, including the training. The plaintiffs alleged that under § 411 of the Restatement (Second) of Torts, the hospital failed to exercise reasonable care in employing the contractor and to properly inquire into the company’s fitness.
A jury found for the plaintiffs, and a New Mexico appellate court affirmed. Talbott v. Roswell Hosp. Corp., 192 P.3d 267 (N.M. App. 2008), 23 PNLR 154 (Oct. 2008). An appeal is now pending before the state high court. No. 31,185 (N.M. appeal filed Nov. 21, 2008). In addition to Slack, the plaintiffs are represented by Michael T. Worley, Clay H. Paulos, and Ian D. McKelvy, all of Roswell, N.M.; and Edward Ricco and Jocelyn Drennan, both of Albuquerque, N.M. The briefs (Court Of Appeals Opinion Affirming District Court Verdict and New Mexico Supreme Court – Order Quashing Writ As Improvidently Granted) are available, courtesy of Mr. Slack.