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Scott Brooksby recently moderated a panel at a prominent aviation conference concerning helicopter accidents. Scott’s panel was featured at the American Bar Association’s Aviation Litigation National Institute in New York regarding “Helicopter Accidents: A Review of Recent Cases of Interest”.

At this prominent aviation conference, Scott was part of a distinguished faculty, which highlighted current developments in aviation law and insurance topics including:

• Safety in the cockpit issues and precedents that developed from the 9/11 litigation and how they relate to the Germanwings tragedy

• The unique challenges involved in emergency medical helicopter services both from a legal and safety perspective

• Choice of forum and other legal issues and precedents arising from several high profile international disasters

• London market claims leaders’ perspectives on handling aviation disasters spanning the globe

• Flying special missions for government and industry from explosives to ebola

• New developments in the law of aircraft financier liability in connection with the tortious actions of lessees and operators

• Common themes and issues faced by the trial teams in domestic cases such as the Colgan Air 3407 and Comair 5191

• Ethical considerations when selecting and preparing experts in aviation accident litigation

• The future of aviation, aerospace law, and litigation in connection with drones and commercial space/sub-orbital travel

Scott Brooksby is an aviation lawyer in Portland, Oregon, with experience in a broad variety of aviation topics, including helicopter litigation and crashes.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Commercial Litigation, Contracts, Kristin Olson, Leases, Litigation, Scott Brooksby

Lease agreements and consent provisions

May 6, 2015 olsonbrooksby

Lease agreements are common. But what if your lease agreement says that you can’t do something without the consent of the lessor? Olson Brooksby deals frequently with airplane lease agreements. For example, the owner of an airplane might have certain repair facilities that it likes and the lease might contain a consent provision that requires the owner to consent to the repair facility if the plane needs repairs. This can be very frustrating for the lessee, who has to pay for the repairs. The lessee might be concerned that the lessor wants an expensive repair facility or a facility that requires transportation of the plane to a faraway place. How do conflicts over these provisions get resolved?

The following is from Kristin Olson and Scott Brooksby’s article published in the International Association of Defense Counsel’s Business Litigation, “Consent Provisions in Lease Agreements: Must the Lessor Act Reasonably?”

CONSENT PROVISIONS IN LEASE AGREEMENTS: MUST THE LESSOR ACT REASONABLY?

Experienced business litigators are generally familiar with a broad range of real estate, equipment, and other forms of lease agreements, as well as litigation stemming from such agreements. But what happens when a lease contract has a provision that requires the consent of the lessor before the lessee takes a certain action? Does the lessee have recourse against the lessor if the lessee’s consent is, for example, withheld arbitrarily?

Equipment or airplane leases provide a useful case study. Provisions in airplane lease agreements, for example, may require consent of the lessor. By way of illustration, an airplane owner (the lessor) leases an airplane to an airline (the lessee) and the lease agreement includes provisions that require that the owner consent to the choice of airplane repair facility if the airplane needs repairs. In cases where there are those types of contractual provisions, the owner might argue that the lease effectively allows it to unilaterally choose the repair facility for the airplane. Under that hypothetical lease provision, even if the airline is allowed to initially choose the facility, the owner must consent to the airline’s choice. This may have serious economic consequences for the airline, which may be concerned that the repair facility chosen by the owner is a slower repair facility than the one that the airline would have chosen, forcing the airline to incur loss of use damages. The airline may also be concerned that the repairs conducted at the facility approved by the owner will be more costly—this is particularly a concern if, under the lease, the airline is required to pay for the repairs or if the airline’s pilots or mechanics damaged the plane. The airline may also be concerned that the repair facility chosen by, or approved by, the owner is far away (a common issue with airline repair facilities)—particularly if the lease requires that the airline pay for all transport costs to the repair facility.

So what happens? Is the airline subject to the owner’s choices? In the hypothetical above, does the owner get to dictate where the airplane is repaired? The answers to those questions vary depending on jurisdiction and whether the lease explicitly requires that the lessor act reasonably, as explained in further detail below.

Does the lease explicitly require that the lessor act reasonably?

A lease may explicitly provide that the lessor’s consent “may not be unreasonably withheld.” If the lease contains this explicit provision, that is obviously helpful to the lessee. However, it still does not resolve the issue in some jurisdictions. Some jurisdictions require an examination of the facts and circumstances in order to determine whether the withholding of consent was “unreasonable” under the explicit terms of the lease.

For example, in Georgia, even if there is an explicit provision requiring that a lessor’s failure to consent be reasonable, there are common law tests of “fairness and commercial reasonableness” that must be applied to the lessor’s conduct. WPD Center, LLC v. Watershed, Inc., 765 S.E.2d 531, 534 (Ga. App. 2014). In that case, the court found that there was “a jury issue” as to whether consent was unreasonably withheld concerning a proposed sublease. Id. at 534-35.

In some jurisdictions, courts will not require a lessor to act reasonably unless the lease explicitly requires it.

In New York, if there is no explicit requirement of reasonableness in the lease, the court will not impose such a requirement on the lessor.

In General Electric Capital Corp. v. Gary, 2013 WL 390959, *1 (S.D.N.Y. 2013), the court examined a loan agreement for the purchase of an aircraft. The loan documents “specified that any assignment, lease or other transfer of any interest in or possession of the Aircraft or any of its parts required prior written approval by the lender. Notably, the agreement did not require the lender to have a reasonable basis for withholding such consent”. Id. at *4. The court explained that, under New York law, when “’a contract negotiated at arm’s length lacks specific language preventing plaintiff from unreasonably withholding consent, the Court can not and should not rewrite the contract to include such language which neither of the parties saw fit to insert in the contract.’” Id. (quoting Teachers Ins. & Annuity Assn. of Am. v. Wometco Enters., Inc., 833 F.Supp. 344, 349 (S.D.N.Y. 1994)).

In the Second Circuit case of State Street Bank & Trust Co. v. Inversiones Errazuiriz Limitada, 374 F.3d 158, 170 (2d Cir. 2004), cert. denied, 543 U.S. 1177 (2005), the court applied New York law and held that a credit agreement allowed a bank to unreasonably withhold consent on a sale of assets if the other party defaulted on its loans because it was an arms length contract that did not put explicit restrictions on the consent provisions.

Although the court in State Street acknowledged that New York law recognizes the implied covenant of good faith and fair dealing, it explained that the covenant must be consistent with the explicit terms of the contract before it is applied. Id. at 169-70. The court held that, under the terms of the agreement at issue in State Street, the bank had the right to “’withhold consent for any reason or no reason . . . .’” Id. at 170 (quoting Teachers Ins. & Annuity Assn. of Am, 833 F.Supp. at 349). The agreement did not explicitly restrict the bank’s right to refuse to consent to a sale of assets if the other party defaulted on its loans. Id. The court went on to note that, even if the implied covenant of good faith and fair dealing were hypothetically applied to these circumstances, “the bank’s refusal to consent to such a sale was neither unreasonable nor arbitrary” and was “made for a legitimate business purpose.” Id.

Under South Dakota law, the implied covenant of good faith and fair dealing is generally applied to every contract. However, as long as the parties act honestly, South Dakota courts will probably broadly enforce most contractual terms that explicitly require consent.

In Taylor Equip., Inc. v. John Deere Co., 98 F.3d 1028, 1029 (8^th Cir. 1996), Midcon was John Deere’s former industrial equipment dealer. Midcon argued that John Deere breached the implied covenant of good faith and fair dealing by refusing to approve Midcon’s request to assign its dealership to a willing buyer. Id. at 1029-30. As a result, Midcon had to sell its dealership to the approved buyers for a significantly lower amount of money. Id. at 1030. The contract between Midcon and John Deere provided that Midcon could not assign its dealership to any buyer “without the prior written consent of [Deere].” Id. (internal quotation marks omitted.) The court held that the implied covenant of good faith and fair dealing “cannot override this express term of the contract”. Id.

Although “South Dakota law implies a covenant of good faith and fair dealing into every contract”, id. at 1031, the court explained that the definition of “good faith” is “’honesty in fact in the conduct or the transaction concerned.’” Id. at 1032. Additionally, under South Dakota law, the implied covenant of good faith and fair dealing “does not affect every contract term” and “cannot ‘block use of terms that actually appear in the contract.’” Id.

The court explained that, as long as John Deere acted honestly, it had “an unrestricted right to withhold approval” under the contract. Id. at 1034. The court noted that, “’[I]n commercial transactions it does not in the end promote justice to seek strained interpretations in aid of those who do not protect themselves.’” Id.

Michigan law recognizes the implied covenant of good faith and fair dealing. However, Michigan courts will generally refuse to apply the covenant of good faith or reasonableness to a contract that explicitly requires prior consent.

In James v. Whirlpool Corp., 806 F. Supp. 835, 838, 840 (E.D. Mo. 1992), the court applied Michigan law to a distributorship contract between St. Louis Appliance Parts, Inc. (SLAP), an appliance part distributor, and Whirlpool, the appliance manufacturer. SLAP argued that Whirlpool breached its covenant of good faith and fair dealing because it refused to approve the sale and proposed assignment of SLAP to Aberdeen, another distributor. Id. at 843. The court explained that, “Michigan common law recognizes an implied covenant of good faith and fair dealing that applies to the performance and enforcement of all contracts.” Id. However, the court also noted that, under Michigan law, the implied covenant of good faith and fair dealing will only limit the parties’ conduct if the covenant does not contradict an explicit provision in the contract. Id. The court held that the contract explicitly restricted SLAP from assigning its rights under the contract without Whirlpool’s prior written consent. Id. at 843-44. The contract also provided that Whirlpool could terminate the contract “for a change in management or control which it found unacceptable.” Id. at 844. The court therefore refused to apply the covenant of good faith and fair dealing because it would “override the express terms” of the contract. Id.

Under Minnesota law, prior consent requirements in contracts are generally upheld without restriction.

In In re Bellanca Aircraft Corp. v. Anderson-Greenwood Aviation Corp., 850 F.2d 1275 (1988), the court applied Minnesota law and held that Bellanca’s contracts with two companies to manufacture aircrafts were worthless assets because both contracts required the consent of the companies before Bellanca could assign the contracts to a different manufacturer. Id. at 1285. Under the contracts, “consent could be withheld for any reason whatsoever, arbitrarily or rationally.” Id. The court noted that the duty of good faith under the UCC did not prevent parties from negotiating provisions requiring consent that “may be reasonably or unreasonably withheld.” Id. Additionally, the court based its decision on the fact that that the parties did not cite to any common law supporting the idea that the UCC imposes “a duty not to withhold consent to assign unreasonably.” Id.

In Colorado, Alaska, Oregon, and Ohio, the courts generally apply the implied covenant of good faith and fair dealing, even if the contract does not explicitly state that the withholding of consent must be reasonable.

Colorado

In Larese v. Creamland Dairies, Inc., 767 F.2d 716, 717–18 (10th Cir. 1985), the court applied Colorado law and held that a franchisor may not unreasonably or arbitrarily withhold its consent to transfer rights to a franchise. The court explained that, “the franchisor must bargain for a provision expressly granting the right to withhold consent unreasonably, to insure that the franchisee is put on notice. Since, in this case, the contracts stated only that consent must be obtained, [the franchisor] did not have the right to withhold consent unreasonably.” Id. at 718.

Alaska

In Alaska, “Where the lessor’s consent is required before an assignment can be made, he may withhold his consent only where he has reasonable grounds to do so.” Hendrickson v. Freericks, 620 P.2d 205, 211 (Alaska 1980).

Oregon

In Oregon, the lessee has an objectively reasonable expectation that the lessor will consent, especially if the lessor has no objective reason to refuse its consent. See Hampton Tree Farms, Inc. v. Jewett, 892 P.2d 683, 693 (Or. 1995) (“jury could find that [seller’s] unilateral action in discontinuing to supply logs frustrated [buyer’s] objectively reasonable expectation”). Oregon courts recognize the implied covenant of good faith and fair dealing as long as it does not contradict an express contractual term. Stevens v. Foren, 959 P.2d 1008, 1012 (Or. App. 1998). In other words, the court will require reasonable conduct as long as the contract does not contain an explicit provision that allows the lessor to unreasonably withhold its consent. Oregon, what is “reasonable” generally depends on the facts and circumstances. Reasonable expectations include the right of either party to further its own legitimate business interests. U.S. Genes v. Vial, 923 P.2d 1322, 1325 (Or. App. 1996).

Ohio

In Littlejohn v. Parrish, 839 N.E.2d 49, 50 (Ohio App. 2005), the court found that there was an implied covenant of good faith and fair dealing in a mortgage note, which stated that prepayment was subject to the mortgagee’s approval, but did not explicitly include a requirement that the mortgagee act reasonably. The court noted that, under Ohio law, “there is an implied duty of good faith in almost every contract.” Id. at 53.

Best Practices

If you are assisting parties in negotiating a contract, it is best if you include explicit provisions concerning consent. If you represent the airplane owner in the introductory hypothetical, you may want to include a provision that states that consent is required and may be unreasonably withheld. If you represent the airline, you obviously want to omit any consent provisions. However, if the airplane owner requires a consent provision to do business, the airline should try to negotiate for a provision that explicitly states that consent may not be unreasonably withheld. The airline could also try to negotiate for a specific list of agreed-to repair facilities in advance.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, Scott Brooksby, Super Lawyers

Congratulations to Scott Brooksby on being included on the list of Super Lawyers for 2014!

July 21, 2014 olsonbrooksby

Congratulations to Scott Brooksby! Scott Brooksby has once again been included on the list of Super Lawyers for 2014. Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. Scott has been on the list every year since 2008, and no more than 5 percent of the lawyers in the state are included.

Scott Brooksby has extensive experience with product liability law through decades of representing national and international manufacturers, sellers, distributors, and suppliers. Scott can effectively settle and try product liability cases and he knows how to minimize risk and avoid future claims.

Scott is particularly skilled at working with a wide variety of product liability experts regarding complicated factual and medical issues. He is familiar with federal and state product liability law and regulations, and he works with his clients to determine the best defense strategy when faced with a product liability lawsuit or potential lawsuit.

Three types of product defects are recognized in Oregon: design defects, manufacturing defects, and failure to warn. Scott has defended companies against all three types of product defect claims and has successfully challenged product liability cases pleaded under both negligence and strict liability theories.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts.

In cases that do not necessitate a trial, Scott is a skilled negotiator who has resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in the dismissal of claims, or outright dismissal of his client. He also has experience counseling product liability clients regarding the avoidance of litigation, handling product recalls, product modifications, and unwanted governmental intervention.

Catastrophic Injury, Heavy Equipment Manufacturing, Heavy Machinery, Metals, Scott Brooksby

Recommendations for reducing worker injuries for steel and metal manufacturers

April 25, 2014 olsonbrooksby

From Scott Brooksby’s article, “Secondary Processes Don’t Translate to Secondary Risks“, published in FF Journal, a metal fabricating and forming trade magazine, which includes recommendations for reducing worker injuries for steel and metal manufacturers:

Global demand for steel continues to increase, with mills and production facilities focused on production processes and ramping up output. With the urgency to increase production, however, risk of serious workplace injuries often is under-recognized in secondary processes—most notably, quality control testing operations.

Through our experience, we’ve identified simple and affordable steps mill management can take to reduce the incidence of major injuries and associated liabilities that occur at an inordinate rate in quality control testing processes of metals manufacturing.

A recent example took place at a steel mill that processes around 30,000 samples per year, operating a customized, decades-old conveyor system.

On the main production line at this mill, tail samples are cut from steel plate. The samples, slabs about 1 1⁄2-in.-thick, 8-ft.-long and weighing more than a ton, are sidled to a conveyor system leading to the sample-burning room. There, the sample tail is cut into smaller pieces to be shipped to a lab for testing. Electronic and manual controls are in place to prevent slabs from posing a danger to workers. When the system operates as it should, samples are restrained by a series of gates, arriving at a final gate that secures the slab as a laser torch cuts the tail sample into pieces, each weighing about 500 lbs.

One day, the final metal gate remained shut as the penultimate gate opened, freeing the sample slab to collide with the sample still in the clutch of the final gate. The sample tail flipped into the air, striking a temporary employee before destroying the machinery’s electronic control system.

A co-worker prevented further injury and damage by deactivating the equipment with a retrofitted electronic emergency override. Claims against the mill were resolved at significant financial expense.

What lessons can heavy industry draw from this incident to prevent similar events from occurring?

Immediately examine equipment involved in secondary processes—such as QC test sampling—and put requisite safeguards into place. It’s common for management to concentrate on production line safety and operations. All the more reason to exhibit prudence by reviewing conditions in areas such as sample burning, and take steps such as safety engineering studies to identify issues and develop options to retrofit or augment existing safety devices.

For example, conveyor equipment in sample-burning lines often is customized, and can lack safety elements incorporated in standardized, production line equipment. In this case, an engineering study on the sample conveyor may have identified a safety retrofit as simple as horizontal spacers spanning across the conveyor to prevent a sample tail from careening off the conveyor.

Document safety or process improvements. Virtually every steel, metal or component manufacturing facility has old equipment in use. In most cases, it has been upgraded or retrofitted for operation with the safety of the worker and the workplace as priority concerns. We recognize that documentation on its own won’t prevent injury.

At the same time, we’ve seen how dramatically lack of production environment safety retrofit documentations can impact the size of settlements and verdicts in manufacturing workplace personal injury cases. Safety retrofits have value in and of themselves. But strictly from a standpoint of managing financial risk, it’s crucial to document safety retrofits, retain these documents indefinitely and maintain them in strict compliance with formal document destruction policies.

Review workforce management and training practices in “first assignment” areas such as test-sample burning. As with the case of our real-world example, secondary processes often are areas where less-experienced or temporary workers are first put to work in steel production facilities. Facility management is wise to recognize this as a potential risk, put in place precautions, staff these areas appropriately and sufficiently train inexperienced workers who may not be conscious of dangers inherent in quality control sampling.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Scott Brooksby

Scott Brooksby Featured at Prominent Aviation Litigation Conference

January 15, 2014 olsonbrooksby

Scott Brooksby will be speaking at the 2014 American Bar Association’s Aviation Litigation Seminar on June 5, 2014, in New York. Scott’s panel is entitled “Federal Rules of Evidence: New Treatment of NTSB Factual Reports and Underlying Findings.”

The American Bar Association’s Aviation Litigation Seminar enables aviation lawyers to stay up to date on current developments, ethical issues, and new trends in aviation litigation. Scott Brooksby will be featured as part of the distinguished faculty of seasoned litigators, who will address topics such as:

• Significant recent legal developments and case law
• The ethics of prepping and presenting witnesses for deposition or trial
• Impact of unmanned aerial vehicles in aviation litigation
• Effectively handling non-catastrophic aviation cases
• Pilot training issues and litigation
• Recent applications of the General Aviation
Revitalization Act
• Legal, regulatory, and insurance implications of space tourism
• New treatment of NTSB factual reports

Scott Brooksby practices aviation and product liability defense. He is an experienced trial lawyer who has defended businesses, manufacturers, and organizations in many personal injury and and commercial cases. He has defended and counseled product manufacturers and distributors in a variety of industries including aviation, drugs and medical devices, toys and recreational products, paints and solvents, power tools, heavy equipment and machinery, retail, food, consumer products, and automobiles. He is the former co-chair of a large West Coast law firm’s product liability practice group.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts.

Scott has litigated everything from small defective product claims to catastrophic injury and wrongful death cases involving punitive damages. He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities.

As one of the few lawyers in Oregon with significant aviation experience, Scott has litigated helicopter and plane crash cases, as well as aviation component part product liability claims. Scott was co-counsel on a team that defended a large aviation product manufacturer in a months-long trial.

Product Liability

Scott Brooksby recognized as Business Edition “Super Lawyer” for Product Liability

November 29, 2013 olsonbrooksby

Scott Brooksby has been recognized as Business Edition “Super Lawyer” in the 2013 Business Edition of Super Lawyers for product liability defense. Scott has been recognized as one of the top attorneys in product liability defense commercial practice, selected from attorneys across the nation and in London.

Scott Brooksby is experienced in defending companies of all sizes against product liability claims–from small franchisees to Fortune 500 companies. Scott is aware of the needs of different-sized companies facing issues like product recalls and compliance issues.

Scott has handled product liability cases in both state and federal courts. He is intimately familiar with the various applicable state and federal regulations that apply in product liability cases, and he serves as on-demand counselors for his clients as issues come up. He also assists his product liability clients with insurance issues, employment and temporary worker concerns, and contract analysis.

Scott has extensive experience with product liability law through decades of representing national and international manufacturers, sellers, distributors, and suppliers. He is a trial lawyer who provides sound recommendations to his clients regarding when to settle and when to try product liability cases, and how to minimize risk and avoid future claims.

Scott works efficiently with a wide variety of the nation’s most recognized product liability experts regarding complicated factual and medical issues. He is familiar with federal and state product liability law and regulations, and he works with his clients to determine the best defense strategy when faced with a product liability lawsuit or potential lawsuit.

Three types of product defects are recognized in Oregon: design defects, manufacturing defects, and failure to warn. Scott has defended companies against all three types of product defect claims and have successfully challenged product liability cases pleaded under both negligence and strict liability theories.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Helicopters, Personal Injury

To curb medical helicopter crashes, focus on pilot haste, experience

June 12, 2013 olsonbrooksby

Modern healthcare capture — Helicopter Emergency Medical Services crashes

Here’s an opinion piece by shareholder Scott Brooksby, published in the June 10 issue of Modern Healthcare:

To curb medical helicopter crashes, focus on pilot haste, experience

A dramatic national conversation erupted recently following a U.S. National Transportation Safety Board finding that smart phone texting was a contributing factor in the crash of a fatal medical-helicopter flight in 2011.

The discussion has concentrated on everything from connecting the event to the dangers of texting while driving to calls for a ban on texting by pilots in air medical operations.

Absent from the discussion, however, is a larger issue that’s well recognized by helicopter industry safety organizations, and what should be of great concern for hospital administration and other organizations that contract emergency helicopter services. The issue has to do with the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.

In comparison to virtually every other type of commercial aviation, there is an inordinate rate of accidents within medical helicopter aviation, with the 2010 NTSB data proof in point.

Essentially, NTSB segregates aviation operations into hundreds of categories, the largest being all U.S. major domestic air carrier flights. In 2010, NTSB reported only 14 accidents among major air carrier aviation, none of which were fatal. By contrast, in 2010 there were 13 HEMS accidents, including seven fatal crashes.

Medical helicopter pilots are heroic and driven individuals who are among the best-trained and highest-skilled pilots in the world and fly what arguably are the most dangerous missions outside of military aviation. HEMS pilots possess the grit and courage to go forth in dangerous conditions any time of night or day, in icy conditions or great heat, in storms, in densely trafficked urban controlled airspace, and remote uncontrolled airspace.

The most dangerous occupation

Operating without the benefit of formal flight plans with takeoffs and landings in uncontrolled locations ranging from roads to ball fields to the tops of buildings, the challenge is incredible. Speed is critical. But it comes with great risk. In fact, according to a University of Chicago report, crewing a medical helicopter is the most dangerous profession in America.

Clearly it takes a special individual to accept the challenge. But according to the International Helicopter Safety Team, the same attributes of risk tolerance, confidence and dogged determinism required of a HEMS pilot commonly are the very factors that, when excessive, lead to helicopter pilot error.

But what complicates the issue of haste to meet critical needs is the fact that the majority of HEMS accidents occur not when pilots are ferrying a patient to emergency treatment, but instead take place when pilots are rushing to the scene to pick up a patient, or the transportation of organs.

NTSB data shows that fully 58 percent of the 31 medical flight accidents occurring from 2007 to 2009 took place when the HEMS aircraft were en route to pick up an injured patient, or involved organ transport organs. Only 42 percent of HEMS accidents occurred with patients on board.

Haste and pilot error under harrowing conditions is exacerbated in the case of less experienced HEMS pilots. Although on the whole HEMS pilots rank among the most experienced and capable pilots in the world, NTSB records indicate that flight hours of HEMS pilots not involved in accidents have logged 19 times as much air time in a particular aircraft as those involved in accidents.

Managing contract helicopter risk

Since 2005, there has been an increasing call for greater safety requirements in HEMS aviation, focusing largely on navigation equipment and flight dispatch and monitoring systems. We expect to see continued progress in that area.

In the meantime, to reduce the incidence of HEMS crashes as well as to exercise prudent risk management, here are some steps for hospital administrators to consider:

– Review your HEMS contractor pilot training program, with a preference for programs that not only meet, but exceed, FAA compliance levels;

– Request documentation of contractor aviation risk assessment programs, and review the specific crew checklist parameters to assess risk level of each flight;

– Stipulate that pilots have a minimal level of flying hours on the specific type of aircraft to be used in life flight operations;

– Stipulate that pilots have a certain level of military flying service, or equivalent civilian training;

– Review pilot histories and encourage condition-specific training that corresponds to local conditions; and

– To limit claims against your hospital or organization, ensure that your HEMS contracts contain solid indemnity provisions.

Although the tragic human consequences of a fatal medical helicopter crash are clear, there’s less recognition of the massive risk of litigation, which while principally focused on the flight service company easily can become a deep, years-long issue for the contracting hospital organization.

HEMS operators are the first line of defense in one of the greatest challenges of emergency care, operating under diligent training execution and best principles of safe flight as established by the FAA and contractor safety policies. However, perfection is an aspiration, and recognizing the record of accidents, hospital organizations should look beyond smart phone bans to limit the occurrence and risk of medical helicopter accidents.

Olson Brooksby PC