Court Finds Hospital Liable For Negligently Selecting Air Ambulance Provider

The New Mexico Court of Appeals recently held that a hospital was liable to the victim of an air ambulance crash because it negligently selected the air ambulance provider with which it contracted. Talbott v. Roswell Hospital Corporation. Case No. 27,135 (2008).

The court held that the hospital was negligent even though the hospital ascertained that the provider was properly licensed by the FAA and obtained a reference from another customer. While the court found that a hospital is typically not liable for the acts of an independent contractor, it held the hospital liable for the crash based on Section 411 of the Restatement (Second) of Torts. Section 411 provides that a person must exercise reasonable care to employ a competent and careful contractor to conduct potentially dangerous activities. A competent contractor is one who can do the work without an unreasonable risk of injury to others.

The amount of diligence an employer must undertake in selecting a contractor varies depending upon the danger of the work. See Restatement (Second) of Torts § 411 cmt. c, at 379. If the work is highly dangerous, the investigative duty is higher. With respect to air ambulance services, providers' duties are likely to be heightened given the poor recent safety record of air ambulances, which includes three fatal accidents in the last two months.

The crash rate for air ambulances, which now stands at 1 in 50, is twice that of other commercial helicopters and has been rising steadily in recent years although the number of accidents declined in 2004 and 2005. See "Improved Data Collection Needed for Effective Oversight of Air Ambulance Industry" available online. This crash rate is equivalent to more than 80 airline crashes each year. The rate of on-the-job fatal injuries for medical helicopter crews exceeds that for nearly all other occupations — 74 workers per 100,000.

To avoid potential liability, hospitals should assure that they adequately investigate the qualifications of their air ambulance service providers and carefully monitor their operations. In particular, providers should implement policies to prevent staff members from engaging in "helicopter shopping." Helicopter shopping occurs when a hospital calls various helicopter services until one is found who agrees to take the flight assignment, often without advising the service that the flight was declined by others and the reasons they declined. Reliance on FAA oversight according to the New Mexico Court is insufficient given the risks involved.