Special Report: Air Ambulances: Carry extensive insurance in case of helicopter crash
Special Report: Air Ambulances
Carry extensive insurance in case of helicopter crash
If you are going to use medical helicopters, Don Maciejewski, JD, an aviation attorney with the Jacksonville, FL, law firm of Zisser Robison, recommends that risk managers be prepared for the worst. Make sure you are adequately insured to cover the payouts from a crash that kills five people on a nonurgent mission, he says.
Even if you lease the helicopter, he suggests having an umbrella insurance policy to cover liability beyond what the helicopter leasing company has.
"If they have a basic liability policy of $3 million, you might want to go out and buy a $10 million umbrella policy that never even kicks in until their $3 million is eaten up," Maciejewski says. "The beauty of that is that the umbrella policy is usually cheaper than the underlying basic policy and, unless you have a catastrophic event, you're never going to have a claim."
Also watch out for too many exclusions in a leasing company's insurance policy, warns Steve Marks, JD, an attorney with Podhurst Orseck in Miami and one of the nation's leading aviation attorneys. He has handled several medical crash cases. Hospitals often think they are protected because the leasing company has insurance, but then they find out that there are so many exclusions that the hospital still is liable when a crash happens.
He agrees with Maciejewski that leasing the helicopter instead of owning it helps reduce liability for the hospital, but he says leasing still leaves you with significant obligations to ensure that the company is safe.
The hospital must confirm that the vendor is adequately insured, that the pilots are insured, and the pilots' training and annual certifications are current. Marks says he has been involved in aviation litigation that revealed the pilots' qualifications were not up to date, and ultimately, the hospital can be held liable for not investigating that prior to leasing the service.
If the hospital owns the helicopter, it is responsible for maintaining the aircraft no small feat and not inexpensive. Marks suggests that for liability reasons, not to mention striving for the highest level of safety, the hospital should follow the strictest standards known as Part 121 in the Federal Aviation Regulations.
"Those standards are intended for commercial carriers, but a plaintiff's attorney could argue that you were running what amounted to an unscheduled charter service, and therefore, you should have followed those guidelines," he says. "I'd follow the highest standards just to be safe."
Plaintiff's attorney: Be wary
A plaintiff's attorney says the crash of a medical helicopter always will come back to the hospital involved, says transportation accident and liability attorney Jeffrey Kroll, JD, in Chicago. If the helicopter is owned by the hospital, the institution will be responsible for negligent actions that led to the crash. In that sense, he says, the litigation will be similar to a malpractice case in which an employee physician committed an error leading to patient harm.
But even in the case of a leased helicopter, the hospital can be sued if the helicopter and its crew were seen as an "apparent agent," Kroll says. An apparent agent is one that the public could reasonably assume is an employee of the hospital.
"Even though the helicopter is not owned by General Hospital, and the hospital does not employ the flight crew, it can be an apparent agent; because when I called for help from the hospital, they sent that helicopter, and I assumed I was getting the General Hospital helicopter," he explains. "So, you can never just rubber stamp the credentials check and assume you won't have any liability."
Lawsuits following a crash will hinge on showing that the hospital had a duty to deliver the patient safely or, if no patients were harmed, that the hospital had a duty to provide a safe operating environment for the crew. Then the plaintiff will show causation and point to some failing by the hospital in training, maintenance, policies and procedures, or individual performance.
"The hospital's defense sometimes is to say that the patient was badly injured that even if we hadn't crashed the helicopter and killed him in that field this young boy would have died anyway after we got him to the hospital," Kroll says. "I can tell you that doesn't go over well with a jury. But it's the only thing they're left with when they're at fault and they're desperate."
Kroll says the settlements or jury awards will be quite large in helicopter crashes.
"I can't tell you the amounts of settlements in the cases I've handled, but suffice to say this is about the worst thing that can happen to these families," he says. "They put their trust in you and that helicopter, and this is about as big a tragedy as you can present in a lawsuit."
If you are going to use medical helicopters, Don Maciejewski, JD, an aviation attorney with the Jacksonville, FL, law firm of Zisser Robison, recommends that risk managers be prepared for the worst. Make sure you are adequately insured to cover the payouts from a crash that kills five people on a nonurgent mission, he says.Subscribe Now for Access
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