If a pilot experiences medical problems during a flight, airlines and their insurers could be exposed to significant liability, even if that pilot had withheld medical information from his or her employer and insurer, according to an aviation attorney with LeClairRyan, in Newark.
“Commercial airlines put their pilots through rigorous training and have oversight on their medical conditions, so from their perspective, they expect their pilots to disclose medical conditions and they have programs in place to close the loopholes in Airmen Medical Certificates,” shareholder Douglas H. Amster said. “No matter what, if something happens, they’re going to get sued. But the potential is there for them to add arguments on top of claims.”
The issue has been one of interest since a JetBlue pilot is being forced to undergo psychiatric evaluation following a March 27 incident in which he ranted about religion and terrorism while flying a commercial jet out of New York.
According to Amster, in New Jersey, violations of statutes or regulations are evidence of negligence, so litigation involving a pilot’s undisclosed medical condition can get complicated.
In one Federal Aviation Administration study, researchers found toxicology evidence of potentially disqualifying medical conditions in nearly 10 percent of pilots involved in fatal accidents within a 10-year period, Amster said. A separate report from the federal Department of Transportation found 8 percent of the 40,000 airmen investigated failed to disclose medical conditions for which they were receiving disability benefits from the Social Security Administration.
Since about 650,000 pilots worldwide hold FAA Airmen Medical Certificates — and taking into account the 3,200 pilots recorded by the DOT — up to 68,200 pilots could have undisclosed medical problems today. But Amster noted that those two reports don’t capture all of the statistics, so he believes the numbers are even higher, increasing the risk of accidents and airline liability.
According to David P. Cooke, a commercial pilot and aviation attorney with Genova, Burns, Giantomasi & Webster, for a pilot to obtain a medical certificate to operate an airplane, he or she must get a physical medical exam from an FAA-authorized doctor and fill out a form that asks for recent medical history, alcohol abuse and traffic convictions. If a pilot failed to disclose a medical condition on the form, he or she would be subject to fines and penalties if caught, which, in some cases, doesn’t happen until an accident occurs.
Cooke said psychological problems would be even more difficult to uncover, since the FAA has no standardized psychological testing in place that would stop a pilot who hid that information from receiving a medical certificate.
While some airlines have called for stricter medical reporting requirements, the Aircraft Owners and Pilots Association — which represents the largest group of pilots in the United States — and the Experimental Aircraft Association recently filed a petition with the FAA to relax the standards for medical oversight and place exclusive reliance on pilot self-reporting, Amster said. If the petition is successful, recreational pilots would be exempt from the medical certification process.
“It has been recommended by others that the FAA work with the SSA and other government agencies to expedite the development and implementation of a strategy to carry out cross-checks and take appropriate enforcement action where falsifications are found,” Amster said in a statement. “But until something is done to address this reporting gap, airline carriers and insurers may continue to be exposed to significant liability, even if they have complied with all of their regulatory responsibilities.”