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Training, high standards can reduce copter risks
(Editor's note: This is the second of a two-part series about the hidden risks and liabilities of medical helicopters. In last month's Healthcare Risk Management, we explored the risks and reviewed recent crashes. This month, we compile advice on lowering those risks and take a closer look at one hospital that has revamped its medical helicopter system after experiencing two crashes.)
For all their undeniable benefits, medical helicopters bring with them a high risk of tragedy and liability for the hospital. When a helicopter goes down, most often people die and huge lawsuits result. But there are ways to minimize those risks.
Risk managers have a strong impetus to act. Thirty-five people were killed in nine medical helicopter tragedies in 2008, the deadliest year ever for such crashes, prompting the National Transportation Safety Board (NTSB) to investigate the causes and consider tighter restrictions on medical helicopters. The NTSB has investigated 65 fatal medical helicopter crashes since 1989.
Risk managers should focus on five key steps for reducing the risks and potential liability from a medical helicopter crash, says Don Maciejewski, JD, an aviation attorney with the Jacksonville, FL, law firm of Zisser Robison. He also is a certified aircraft accident investigator, and before practicing law, he was a U.S. Army helicopter pilot. He now specializes in litigation related to helicopter and airplane crashes.
Maciejewski outlines these five ways to reduce the risks and liability exposure:
1. Train the crew appropriately and to the highest standards.
Provide, or require as a condition of your contract with a vendor, that they provide all flight crew with training in "cockpit resource management," which ensures that the crew members communicate with each other effectively. In many cases, for instance, a co-pilot or other crew member knows that something is wrong but is reluctant to say anything to the pilot.
2. Use good risk management when deciding whether to accept missions.
Employ a risk assessment matrix that factors in safety elements and the urgency of the mission. If the patient is critical and likely to die without an air evacuation, then that must be considered differently from a case in which the patient could be transported by ground even though that trip would be longer. If weather conditions are iffy, you must be willing to refuse the noncritical mission. And when weather conditions are beyond acceptable, you must be willing to refuse even the critical patient. If your crew and administrators are not willing to make that hard decision, you have the wrong people in those positions.
3. Insure your facility for the worst possible scenario.
That means a helicopter crash that kills five people, leaves one child permanently disabled, and the crash was caused by crew and/or administrative error.
4. Insulate the hospital from the helicopter operator as much as possible.
When developing a helicopter service, which often means contracting with an outside company to provide the aircraft and sometimes the crew, place the risk on that other company at every opportunity. Strive for a contractual arrangement that places the liability on the helicopter company to the greatest extent possible.
Maciejewski points out that it is difficult for a hospital to escape liability following a helicopter crash, even when the aircraft was leased from another company. If the helicopter was flying under the auspices of the hospital and at the direction of the hospital, there will be ample legal arguments for suing the provider, he says.
"That doesn't mean you don't try to put some distance between your organization and the other," he says. "You have a memorandum of understanding that says your hospital's responsibility is to say, 'Here's the patient; here's their status; here's where they need to go.' Then it's up to the other company to decide whether to go or not. The smaller hospitals especially have to do it that way, because they can't afford to insure against risk."
5. Formalize the helicopter service and follow strict protocols.
The helicopter service must be set up to adhere to the strictest standards from the NTSB and best practices for aviation. Never forget that flying helicopters is vastly different from operating ground ambulances and that you must have a highly organized system in place that requires everyone involved to follow set protocols.
FAA standards not enough
The Federal Aviation Administration (FAA) requirements for medical helicopters are not as stringent as the nonbinding guidelines from the NTSB, notes Kathy Poppitt, JD, a partner in the Austin, TX, office of the law firm Thompson & Knight. So don't be misled by claims that a helicopter meets all FAA requirements. That's a fine start, she says, but risk managers should strive for compliance with the NTSB guidelines for a higher measure of safety.
In January 2006, the NTSB issued a special investigation report which noted that many of the 55 EMS-related aviation accidents (fatal and nonfatal) that occurred between January 2002 and January 2005 could have been prevented with simple corrective actions, including oversight, flight risk evaluations, improved dispatch procedures, and the incorporation of available technologies. The NTSB issued four safety recommendations to the FAA, which have not yet been fully implemented. (Editor's note: The complete report and recommendations can be found online at www.ntsb.gov/publictn/2006/SIR0601.pdf.)
The Safety Board also has added medical helicopter safety to its Most Wanted List of Transportation Safety Improvements. (Editor's note: A summary of the Oct. 28, 2008, board meeting regarding the Most Wanted List of Transportation Safety Improvements is online at www.ntsb.gov/recs/mostwanted/fedmwlpptwebfinal.pdf.)
Flights may not be reimbursed
In addition to the crash risk, risk managers should remember that poor flight decisions can cause reimbursement difficulties, Poppitt says. An air transfer can be twice as expensive, sometimes much more, than ground transport, so third-party payers are not shy about denying reimbursement on the grounds that the helicopter trip was not really necessary.
"So, when your dispatcher is making that call whether to go or not, they have to remember that even when the weather is good and there's not really much of a safety question, you still can't send the helicopter out for every possible run," she says. "There is evidence that these services are overused, and payers are aware of that. They're going to kick it back and leave you with the bill."
And using the helicopter when it wasn't really necessary provides strong ammunition for a plaintiff's attorney, Poppitt notes. When tragedy strikes, the other side is going to say, "They didn't really need to send the helicopter out at all, and now three crew members are dead."
Advanced technology can help reduce the risks, particularly night vision goggles and devices that alert the pilot to dangerous terrain and low altitude. Providing that equipment, or requiring that your vendor provide it, can greatly enhance safety for your helicopter program, Poppitt says. But she also cautions not to put too much faith in those systems.
Terrain warning systems, for instance, can produce too many false-positive warnings and cause the crew to grow complacent, Poppitt says. The problem is that the systems are designed largely for aircraft that don't spend a great deal of time flying low and landing in unusual places, as medical helicopters do, so they warn of terrain so often that the helicopter crew doesn't take much notice when they really are about to fly into a mountain. Such technology can improve safety, but it is not a panacea.
Check company's safety record
When selecting a helicopter company to provide air service for your hospital, you should focus on safety as a top priority, says David Norton, JD, an attorney with the law firm of Shackelford Melton in Dallas. Norton also is a pilot who helps his clients own, operate, buy, sell, and/or lease all sizes and types of business aircraft. A large part of his practice deals with providing aviation regulatory counsel and legal risk management for his clients. There will be many cost and business factors to consider, as when selecting any vendor, but for this service the safety record and overall safety program must be a top priority, Norton notes.
"Look for the company that goes beyond the minimum standards," he says. "This is not an area where you want to settle for the company that's just doing what they have to do to be in compliance."
Due diligence is important, Norton says. Take advantage of the Internet to research the charter company as much as you can to find public records and news reports about the company's history and current standing with regulators. Always ask if the charter company has had any regulatory violations or other issues with the FAA, and how they were addressed, he suggests. Remember, however, that the FAA regulations are so complex that nearly every charter company has had some sort of violation.
"The thing you want to know is what kind of run-in they had with the FAA," Norton says. "Was it because they didn't complete some piece of paperwork in the right way, or was it because a tail rotor fell off in flight?"
For more information on reducing the risks associated with air ambulance services, contact:
Don Maciejewski, JD, Zisser, Robison, Brown, Nowlis, Maciejewski, and Cabrey, Jacksonville, FL. Telephone: (904) 353-3222. E-mail: firstname.lastname@example.org.
David Norton, JD, Shackelford, Melton & McKinley, Dallas. Telephone: (214) 780-1400. E-mail: email@example.com.
Kathy Poppitt, JD, Partner, Thompson & Knight LLP, Austin, TX. Telephone: (512) 469-6133. E-mail: firstname.lastname@example.org.