Gary C. Robb
TRIAL
2/01/2019

Medical helicopters transport approximately 400,000 patients in the United States annually.1 Yet air ambulance companies have resisted industry and Federal Aviation Administration (FAA) proposals that call for enhanced safety equipment such as ­crash-resistant fuel tanks and other safety regulations.2 Meanwhile, preventable crashes continue to occur.3

When representing people injured or killed in air ambulance helicopter crashes, keep in mind that these crashes are different from other aviation crashes, so the early steps of your investigation are key. For example, due to the emergency nature of the flight, less attention may be given to typical pre-takeoff precautions, and weather conditions may not be fully assessed. The pilot also may not be familiar with the landing site area, including utility wires, telephone poles, or other unknown obstacles. A condition that caused the underlying need for emergency air transport, such as severe icing, also may increase flight and landing hazards.

Your goal in the initial investigation is to discover the primary factors suspected to have caused the crash, which allows you to determine potential defendants.4 You cannot rely solely on the National Transportation Safety Board’s (NTSB) crash investigation results—although it will make an independent probable cause determination of what caused the crash, its report cannot be entered into evidence or used by any party in civil litigation.5 It is rare that an NTSB investigator is even available for a deposition.6

Site and wreckage inspection. Until the NTSB formally releases the wreckage to the owner, inspection is difficult to accomplish. On occasion, the NTSB permits an “eyes-only” or visual inspection if requested to meet a statute of limitations deadline. When the wreckage is unavailable and the statute of limitations is running short, you must allege any and all claims reasonably likely under the circumstances of the crash.

Once the NTSB releases the wreckage and any component parts, take steps to ensure that they are well preserved and not affected by weather conditions, and inspect the crash site as soon as possible. This involves, for example, laying out as much of the wreckage as possible in a near pre-crash configuration and methodically examining the various systems and components.

Also make sure the wreckage is stored in a ­convenient location and at a facility that is suitable for year-round inspections. If, however, a significant amount of time has passed before you are retained, then you likely will need to rely on photo documentation of the site by NTSB investigators, local government authorities, or media outlets.

Acquire local agency reports, and interview eyewitnesses. Obtain any investigative reports prepared by local government agencies. For every aircraft crash, the local police and fire departments issue reports on the time and location of the crash, weather conditions, rescue efforts, and passenger injuries. Although their quality varies, these reports often include photographs of the wreckage and the entire perimeter of the crash site—often taken moments after the crash—and may detail wreckage patterns of debris disbursement and provide clues to how the crash occurred and, most important, why.

Reports also may include eyewitness interviews that describe the flight path, any unusual engine noises, the presence of smoke or fire, and the helicopter’s descent and impact. Check whether the state where the wreck occurred has a dedicated air crash investigator; I’ve found that reports prepared by those investigators are thorough and well-documented.

Promptly conduct your own ­eyewitness interviews after being retained and before filing suit. Often, the ground witnesses report information such as “the helicopter’s engine was sputtering or popping” or “the helicopter was spinning out of control,” and such ­eyewitness accounts may help shed light on what caused the crash.

Review engine and maintenance log books. Federal regulations require the owner or operator of a helicopter to maintain appropriate maintenance records.7 Make every effort to obtain complete and readable copies of the entire aircraft and engine maintenance log books. Either request those records in any early document production or seek to acquire them informally from the operator’s counsel.

Helicopters8 and ­fixed-wing aircraft9 have separate certification processes, but all engines—whether for a helicopter or fixed-wing aircraft—are certified under the same standard.10

Assess weather conditions. No reconstruction analysis can be complete without an accurate assessment of the outside or environmental factors prevailing at the time of the flight and crash, including temperature; wind speed and direction; lightning, cloud cover, fog, or sudden or unexpected wind turbulence from weather conditions or other aircraft; and unexpected smoke from a forest or ground fire. This information is easily obtainable, and requests for official weather records can be submitted to the National Centers for Environmental Information.11

Review pilot certifications. In every crash case, the pilot’s actions will be scrutinized, so you should acquire all of the pilot’s certificates, ratings, and log books either early in discovery or informally from the pilot’s employer.12 Two questions that frequently arise are: Does the pilot hold a current and valid medical certificate, and is he or she properly certified to fly that particular ­helicopter model? Be aware that despite responding to a medical emergency, pilots must independently ­evaluate whether it is safe to fly.13

Retain experts early. Retain experts as soon as possible because the statute of limitations may have run by the time the NTSB completes its investigation. Usually the first question in a helicopter crash investigation is whether pilot error or the mechanical failure of a component or structure in-flight, such as the engine or one of the rotors, caused the crash.

Once you have preliminary information, you can assess what type of experts you need to determine what caused the crash and who is responsible. Different experts may understand characteristics of pilot training, have unique damages expertise on issues such as pre-impact terror, or offer other biomechanical and medical expertise to assess crashworthiness.

Many helicopter crash investigators are trained to examine “the person” (pilot), “the machine” (helicopter), and “the environment” (weather). If your investigation also covers these areas, you will be in a good position to move your case forward.

Gary C. Robb is a partner at Robb & Robb in Kansas City, Mo.

Notes:

1. Office of the Inspector Gen., Delays in Meeting Statutory Requirements and Oversight Challenges Reduce FAA’s Opportunities to Enhance HEMS Safety(Apr. 8, 2015), oig.dot.gov/library-item/32450; see generally Fed. Aviation Admin., Fact Sheet—FAA Initiatives to Improve Helicopter Air Ambulance Safety (Feb. 20, 2014), https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=15794.
2. In 2014—after years of not implementing safety proposals from the NTSB—the FAA issued a rule requiring air ambulance operators to implement stricter flight rules and procedures, adopt improved communications and pilot training, and add critical safety equipment to helicopters. Helicopter Air Ambulance, Commercial Helicopter, and Part 91 Helicopter Operations Final Rule, 79 Fed. Reg. 9932 (Feb. 21, 2014).
3. FAA Fact Sheet, supranote 1; Barry Meier, Crashes Start Debate on Safety of Sky Ambulances, N.Y. Times (Feb. 28, 2005), nytimes.com/2005/02/28/us/crashes-start-debateon-safety-of-sky-ambulances.html.
4. They may include the operator of the air ambulance; the pilot; or the manufacturer of the helicopter, engine, or any component or system that failed in-flight. This article does not cover potential defendants or liability theories.
5. 49 U.S.C. §1154(b) (2018).
6. The NTSB general counsel customarily denies such deposition requests citing investigator workload and that a deposition is not essential given the facts set out in the NTSB report itself.
7. 14 C.F.R. §91.417 (2011).
8. 14 C.F.R. §§27 et seq. (2018).
9. 14 C.F.R. §§23 et seq. (2018).
10. 14 C.F.R. §§33 et seq. (2018).
11. You can submit a request for certified data here: ncdc.noaa.gov/cdo-web.
12. The types and grades of certificates are detailed in Part 61 of the Federal Aviation Regulations, and you should consult these early on. 14 C.F.R. §§61 et seq. (2018).

“Aviation safety decisions are separate from medical decisions.” FAA Fact Sheet, supra note 1.