Hospitals Can be Held Liable for Negligent Selection of Air Ambulance Contractors

In a decision that ended almost eight years of litigation, the New Mexico Supreme Court affirmed the ruling of the Court of Appeals deciding that hospitals can be held liable for negligently selecting air ambulance contractors. The court affirmed a judgment in favor of Kim and Bonnie Talbott, parents of 21-year-old Damon Talbott.

Damon was a New Mexico state police officer killed in a helicopter crash near Roswell, N.M., on Oct. 19, 2001. The crash happened during a training exercise in which two state police officers were killed. A third state police officer and the pilot were seriously injured.

This decision comes on the heels of increasing concerns raised in the EMS community about the safety of air ambulance transportation due to the high incidence of fatal crashes.

The helicopter service, Medical Air Transport (MAT), was new to the southeastern New Mexico area in 2001 and had reached an agreement with Eastern New Mexico Medical Center in Roswell to use its helicopter pad as its base of operations.

The crash that killed the officers occurred while the officers were being trained in how to utilize the helicopter at accident scenes. The pilot took them out for a demonstration ride after the completion of their training on landing zones. The pilot was engaged in low-level maneuvers when he lost control of the aircraft and it crashed.

The Talbotts sued Eastern New Mexico Medical Center, alleging that MAT and its pilots were incompetent and that the hospital should not have entered into the agreement with them. They argued that MAT had a poor safety record that was not properly investigated by the hospital.

Much of the litigation centered on the relationship between the medical center and MAT. The Talbotts pointed out numerous problems in MAT’s history as an operator of commercial helicopters and criticized the hospital executive charged with a feasibility study about whether an air ambulance service could benefit the area. The executive admitted not asking any questions about MAT’s past record, and further admitted that he didn’t know what questions to ask to help him assess MAT’s competence as an air ambulance provider. The plaintiffs alleged that not even a phone call was made to inquire as to the service’s experience or competence in the provision of air ambulance services.

The hospital took the position that because the Federal Aviation Administration licensed MAT, it could rely on that licensure to establish its competence. The plaintiffs argued that the hospital could not avoid liability by relying on an independent contractor’s licensure, and the court found that the licensure did not allow the hospital to presume that the service was competent simply because it was licensed.

The judgment of what the hospital should have done to investigate MAT’s reputation and skill required to provide air ambulance service and the danger of the work was left to the jury.

The first weeklong trial took place in September 2003, and jurors quickly returned a verdict of $3,200,000 in favor of the plaintiffs, finding the hospital was negligent in the manner in which it investigated and selected MAT. In June 2005, the Court of Appeals overturned the decision and returned the case to the trial court for a new trial. The issue that caused the remand to the trial court was the question of whether a contractual relationship existed between the hospital and MAT.

In June 2006, a second jury again returned a verdict in favor of the plaintiffs, this time awarding $3,229,000. Again, the hospital appealed on legal grounds, and on June 4, 2008, the Court of Appeals affirmed the verdict, recognizing the basis of recovery argued by plaintiffs. The hospital was allowed to take the case to the New Mexico Supreme Court, which agreed with the Court of Appeals.

The court adopted a popular legal premise that an employer is subject to liability for physical harm to third persons caused by its failure to exercise reasonable care to employ a competent and careful contractor to do work that involves a risk of physical harm unless it is skillfully and carefully performed. The scope of the duty to investigate the independent contractor depended on the danger of the work and the skill required to perform that work.

This decision is important to the EMS community and to all hospitals engaged in the provision of air ambulance services. It shows that juries will not tolerate a hospital’s failure to take responsibility for its choice of air ambulance providers, and highlights the importance of careful background investigation into the prospective provider’s experience and safety record. It’s possible that this decision will be extended to other EMS applications, such as government agencies choosing private ambulance contractors without appropriate investigation into their track record.


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