Keeping Your Medical

Kent S. Jackson | August 20, 2019

How to Handle FAA Medical Issues

Many pilots fear that a medical misunderstanding will cost them their career. Due to the draconian laws surrounding the FAA medical process, these fears are justified. Since flying is a “privilege” and not a constitutional right, pilots don’t have the legal protections that most Americans take for granted.

What about doctor-patient confidentiality?

One of the oldest legal protections is physician-patient privilege. For a doctor to properly treat you, you need to feel comfortable that you can discuss all issues confidentially. However, pilots don’t have this privilege. The FAA can request any of your medical records. So what happens if you fail to provide the requested medical information or fail to authorize your doctors to release it to the FAA? The agency may suspend, modify, or revoke your medical certificate. In the case of an applicant, the FAA can deny the application for a medical certificate.

Mistakes and worse

What if you make a mistake on your application? A mere incorrect answer can cost you your medical certificate. However, a fraudulent answer can mean suspension or revocation of ALL of your airman, ground instructor, medical certificates and ratings. In addition, a fraudulent answer can mean worse than just revocation of all your certificates. Here is the warning that you might have missed as you submitted your last medical on medxpress.faa.gov:

Whoever in any matter within the jurisdiction of any department or agency of the United States knowingly and willingly falsifies, conceals or covers up by any trick, scheme, or device a material fact, or who makes any false, fictitious or fraudulent statements or representations, or entry, may be fined up to $250,000 or imprisoned not more than 5 years, or both. (18 U.S. Code Secs. 1001; 3571).

To sustain a conviction against a defendant for a violation, the government must prove:

  1. The defendant made a false statement.
  2. The statement was material.
  3. The defendant acted with specific intent to mislead.
  4. The matter was within the purview of a federal government agency.

Can you win in court?

Does the U.S. Department of Justice go after pilots for fraudulent medical applications? Wouldn’t revocation of all certificates be punishment enough? The DOJ has a long history of pursuing and winning these cases.  Defendants typically make three arguments:

  1. The FAA form is fundamentally ambiguous.
  2. Since the Government doesn’t pursue every medical fraud case with criminal charges, any prosecution is “selective prosecution” and therefore amounts to a denial of Due Process.
  3. Because the FAA has authority to revoke, DOJ criminal charges amount to double jeopardy.

The courts have rejected all three arguments. Decades ago, there were a few acquittals because the courts found the “medical” questions regarding criminal activity to be ambiguous.  The FAA subsequently redesigned the form. In recent years, courts have been unpersuaded by arguments that the form is confusing.

So, you can’t lie to the FAA. But how do you challenge a determination that you are no longer fit to fly? Of course, you have the right to appeal to the NTSB. If the FAA pulls your medical before it expires, then, if you appeal, the burden of proof is on the FAA. But, if the FAA waits and simply denies you the next medical, then if you appeal, the burden of proof is on you. The burden of proof directly translates to cost in hiring an attorney and a medical expert willing to testify on your behalf.

Yes, you can appeal

Fortunately, an alternative path has developed. A variety of “aero-medical advocacy services” now provide a far more efficient and cost-effective solution to medical disputes. Instead of hiring an attorney, (who doesn’t know medicine), to argue against an FAA attorney (who doesn’t know medicine), in front of a NTSB judge (who doesn’t know medicine), why not hire a medical advocate to speak directly with the FAA medical experts? The system is far from perfect and still feels heavily weighted against the pilot, but cutting the lawyers out of the process takes the parties out of a war mentality and improves communications by having the pilot’s doctors talk directly to the FAA’s doctors. The Air Line Pilots Association (ALPA), the Allied Pilots Association (APA) and the National Air Traffic Controllers Association (NATCA) all provide aero-medical advocacy services to their members. If you run a flight department, consider subscribing to a service for your pilots. The pilot population is aging, and there is a shortage of replacements, so don’t lose a pilot to medical misunderstanding.

This article appeared in the July, 2019 issue of Business & Commercial Aviation as a Point of Law article.