Liability Issues Arise In Case Of Air Mishaps

May 30, 2008
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GRAND RAPIDS —  Aviation Attorney Peter Tolley of Foster Swift Collins & Smith witnessed the aftermath of the helicopter crash at Spectrum Health’s Butterworth facility Thursday from the vantage point of Kent County Circuit Court Judge Donald Johnson’s office window.  

“It must have been within a minute after the thing crashed, and it was one huge fireball with a lot of black smoke,” Tolley recalled. “While we were watching, another fuel tank must have erupted because there was another big fireball. It was probably 10 minutes before it appeared they had some fire suppression up there because the smoke turned from oily black to white.”

The cause of the Aero Med chopper crash was still being investigated at press time. Matt Van Vranken, president of Spectrum Health Hospitals, said the chopper was lifting off, then suddenly came crashing back down to the launch pad and rolled on its side upon impact. Both occupants of the aircraft escaped and were treated for minor injuries on site, he said. No patients were on board.

The hospital’s electricity was down temporarily following the accident, and the facility’s back-up generator was activated. Spectrum Health President and CEO Rick Breon said patients on several floors nearest the crash site were temporarily moved to other areas of the building. Surgeries were temporarily halted but resumed later that day. 

Breon declined to identify the pilot and the other individual at a press conference Thursday, though he noted that the pilot was a Vietnam War veteran and long-time chopper pilot.

But even the most experienced pilots can have accidents, Tolley pointed out. A close friend of his, for instance, did three tours in Vietnam as a helicopter pilot and went on to pilot air ambulance helicopters in Cincinnati. The friend had more than 30,000 hours of flight time in rotary aircraft under his belt, but he clipped a hangar coming in for a landing one day and crashed, though it wasn’t as dramatic as the crash that happened at Spectrum, Tolley said.

Spectrum Health owns Aero Med Spectrum Health, which has two helicopters and a third new chopper that is not yet in use. Aero Med Spectrum Health is a full-time, physician-staffed medical transport program that serves West Michigan and other regions in the state. It provides emergency care and helicopter transport from the scene of accidents and from community hospitals to Spectrum hospitals.

Tolley said as the operator of Aero Med, Spectrum and the pilot it employs would be liable to anyone for injury or death as a result of negligence.

“In a case like this, it’s almost always going to be a finding of negligence, let’s face it,” he commented.

The weather was unremarkable Thursday morning and the windsock at the heliport was pretty limp, so as Tolley sees it, it was just a miscalculation on the part of the pilot at the controls. In Michigan, the owner of an aircraft is liable for any damages that results from the negligent actions of the flight crew, even if the owner isn’t operating it at the time of an accident. If the owner lets someone else fly the aircraft, he, as well as the person piloting the craft, both are liable for negligence through “statutory vicarious liability,” Tolley explained.

“If they had had a medivac patient on board when the crash occurred and that person died, they would obviously have liability under the statute,” he said. 

If the other person on board was not a Spectrum or Aero Med employee, he would arguably have a claim of personal injury against Spectrum if the pilot — who was otherwise qualified and experienced — was negligent.

On the other hand, the accident might be traced to a mechanical malfunction caused by incorrect maintenance or a defective component.

“Then, of course, you would have the issue of the manufacturer of the component potentially being at fault, but that gets tricky, as well, because for a number of years we’ve had the General Aviation Revitalization Act,” Tolley said. “The act says that a manufacturer of an aircraft component has no liability if the product has been in service for more than 18 years. If a component fails after only five years in service, however, then a claim can be made against the manufacturer of the component.”

Assuming there were no injuries during the evacuation, patients aren’t likely to bring any claims against the hospital, Tolley said. Assuming, too, that no patient scheduled for surgery died because surgery was postponed or because the electricity went out while they were on the  operating table, it’s not likely there would be any claims against Spectrum in that regard, either, Tolley said.

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