- Email: [email protected]
Flying Friendly
Legal Matters
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE
Flying Friendly Consider this: you have dropped the patient off and are headed back to your base on a lovely afternoon. Conditions are perfect, and the weather is flawless—clear blue and 22. Beneath you the sunlight glints off the surface of a river meandering slowly through a valley, and you anticipate the fields ahead to be teaming with wildlife. The pilot suggests that you take a closer look and drop down to 150 ft above ground level and follow the twisting course of the river. After several minutes, you pop up over a ridge and see a herd of deer grazing in a mowed field. The deer spook at the sound of the helicopter and start running, and the pilot expertly herds them back and forth across the open field for a little bit before you climb back up to 700 ft above ground level and continue home. The little voice in your head is saying, “What a great job this is!” Everyone in the aircraft is excited about the cool sights and the more adventurous flying than the standard “straight and level” of our day-to-day mission profile. No harm, no foul, and the only thing missing was your camera so you could have taken a picture or two from the left seat of that flock of ducks taking off from the placid river or maybe that big buck that was leading the stampede. Right?
Current Events In September of last year, Colorado Parks and Wildlife cited a hospital emergency medical services (HEMS) pilot for harassing wildlife after a group of hunters observed him flying his helicopter very low over an elk herd in a canyon near the headwaters of Granite Creek, southwest of Grand Junction.1 Ty Smith, District Wildlife Officer in Grand Junction, stated that, “The people that saw this told me that the pilot ruined their hunt. When I mentioned this to [the pilot], he agreed that his actions may have done that.” The pilot further explained that he did not feel his actions harassed the elk but did admit that he was trying to get a better look at the herds. According to the witnesses, the helicopter was flying erratically making multiple passes below the rim of the canyon and also at the treetop level, causing several gangs of elk to scatter in multiple directions. At times, it appeared to the witnesses that the pilot was herding the elk. Because the witnesses were able to provide the number, Colorado Parks and Wildlife was able to track down the pilot and helicopter. In this scenario, both the operator and the pilot were cooperative. The pilot was assessed 10 penalty points against his hunting and fishing privileges and issued a fine of $200.00. The aircraft was not carrying a patient at the time of the incident. The medical crew was also on board, but only the pilot received a citation. Incidents like this can lead to a citation, Federal Aviation Administration (FAA) action against the pilot’s license, and 60
may even escalate to confiscation of the aircraft. Reports of low-flying aircrafts that appear to be harassing wildlife are a common problem, and it is illegal for spotters in an aircraft to assist hunters in finding their game. In November of last year, during daylight and clear weather, an HEMS aircraft was en route back to base after a patient mission and struck a set of power lines causing significant damage to the helicopter. The pilot was able to keep the aircraft under control and land upright a short distance away from the collision site.2 The aircraft struck three power transmission lines when they were flying at an en route altitude of 80 to 100 ft above ground level and were acting outside the scope of their employment and in violation of Federal Aviation Regulations (FARs) as well as company operational specifications and policies.3 The pilot’s employment has been terminated, and disciplinary action was taken against the medical crew as willing participants. In this case, a wire strike protection system is credited for averting disaster. Both of these events most likely evolved from similar circumstances. Neither crew launched with the idea of breaking the law nor certainly crashing the aircraft, but both underscore the need to analyze the decision-making process that took them to this point. The regulations governing flight in the United States are numerous, but there does not have to be an FAR prohibiting a certain event for an FAA action to take place. Holding a pilot’s license is a privilege and not a right. If a complaint is made about the actions of an aircraft, the pilot (and maybe the crew) should expect a call from the FAA in order to explain their actions. Regardless of how rational the explanation, the event will be memorialized on the pilot’s FAA record even if there is no action, and, eventually, if enough complaints accumulate, an FAA action will occur at some point. Oftentimes, the FAA action is separate from the pilot’s employer and the certificate holder’s own actions. Although it may be fun, is this kind of flying worth losing your certificate over, or more dramatically, your life over?
Minimum Safe Altitudes There really is not a lot of guess work when determining how high (or low) you should be flying. The FAA outlines a minimum safe altitude in §119 of Part 91 of the FARs for the allowable minimum distance from the ground, manmade structures, and persons.4 Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes: 1. Anywhere: an altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface. Air Medical Journal 32:2
2. Overcongested areas: over any congested area of a city, town, or settlement or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. 3. Over other than congested areas: an altitude of 500 feet above the surface except over open water or over sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure. 4. Helicopters: helicopters may be operated at less than the minimums prescribed in paragraphs 1 or 2 of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the administrator. A helicopter may be operated at less than the minimums prescribed in paragraphs 2 or 3 of this section provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA. The reader out there who is always looking for the “loophole” may suggest that paragraph 4 of §91.119 indicates that there is not a minimum safe altitude for helicopters as long as operations are conducted “without hazard to persons or property on the surface.” The caveat is in §91.13 regarding careless or reckless operation. Paragraph 1 of this section dictates that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”
NASA’s Aviation Safety Reporting System Everyone makes a mistake. If you make a mistake, the NASA’s Aviation Safety Reporting System (ASRS) is a tool to report an incident in which safety may have been compromised. The volunteer and anonymous nature of the system is designed to allow the pilot to report a nonaccident unintentional event or an event that was not criminal in nature. Section §91.25 prohibits the use of any ASRS reports submitted (or any information derived from that report) in any disciplinary action except when the information is concerning a criminal offense or accident(s) that are covered under paragraphs 7a(1) and 7a(2) of the section.5 The FAA exempts the submitter from any enforcement action unless the submitter had been found guilty in an enforcement action in the previous 5 years.5 Voluntary disclosure reporting programs are intended to improve safety by providing some amnesty when promptly disclosing to the FAA an apparent violation and have taken prompt action satisfactory to correct the violation and preclude its recurrence5 and can serve an important role in achieving compliance and improving aviation safety.6 If the FAA determines that an enforcement action is required in a particular case, the FAA will consider the following factors:6 1. The nature of the violation 2. Whether the violation was inadvertent or deliberate 3. The certificate holder’s level of experience and responsibility March-April 2013
4. The attitude of the violator 5. The hazard to the safety of others, which should have been foreseen 6. The action taken by the employer or other government authority 7. The Length of time that has elapsed since the violation 8. The certificate holder’s use of the certificate 9. The need for special deterrent action in a particular regulatory area or segment of the aviation community 10. The presence of any factors involving national interest, such as the use of an aircraft for criminal purposes If the FAA considers the filing of a report to be indicative of a constructive attitude and that attitude may prevent future violations, even if the FAA does find a violation, neither a civil penalty nor certificate suspension will be imposed if (1) the violation was inadvertent and not deliberate; (2) the violation did not involve a criminal offense, accident, or action under 49 USC §44709, which discloses a lack of qualification or competency, which is wholly excluded from this policy; (3) the person has not been found in any prior FAA enforcement action to have committed a violation of 49 USC subtitle VII or any regulation promulgated there for a period of 5 years before the date of occurrence; and (4) the person proves that, within 10 days after the violation or the date when the person became aware or should have been aware of the violation, he/she completed and delivered or mailed a written report of the incident or occurrence to NASA. Although people make mistakes, wanton bad decision making is protected. For example, although the FAA does not specifically have a rule against having sex in the cockpit, it turns out that decision can result in the loss of your license. Helicopter pilot David Keith Martz (thankfully, not an HEMS pilot) lost his license for flying the “too-friendly skies.”7 Martz lost his appeal to regain the flight certificate he lost after receiving oral sex while flying above the downtown San Diego waterfront in 2005. The incident occurred nearly 4 years before the FAA learning of it when the story and accompanying video were aired on the gossip site TMZ. Martz defended his actions to a National Transportation Safety Board judge saying that receiving oral sex while flying over San Diego “wasn’t the brightest thing,” but he’s learned his lesson and should be allowed to fly. The judge disagreed and upheld his revocation saying, “The evidence clearly shows grossly reckless conduct on the part of the respondent.”7 Although there is not a specific FAR addressing sex in the cockpit, Martz operated the aircraft in a careless or reckless manner so as to endanger the life or property of another.8 In a less titillating event but similar in nature, a pilot was convicted for recklessly operating an aircraft in violation of the California Public Utilities Code. The pilot violated the law by making low passes just a few feet above the Santa Monica Pier and Santa Monica State Beach in November 2008. He was sentenced to 3 years’ probation, 60 days of community service, and 60 days of jail time and fined $900. The FAA revoked his pilot license under §91.13. He was flying an Aero 61
Vodochody L-39 Albatros, a Soviet-era, Czech-built military jet trainer, too close to the Pier and State Beach. On a similar note, a general aviation pilot lost his license after buzzing Galveston County beach in 2010. The FAA received complaints that an airplane buzzed a crowd on a Galveston County beach, flying a single-engine plane as low as 15 feet about the ground and snagging a fishing line.9 The pilot surrendered his airman certificate after receiving a revocation letter from the FAA. An interesting side note from this incident was that one of the passengers asked if they would be in trouble for flying so low according to the FAA investigation. The pilot replied that he had “buzzed the beach many times” and “would not get in trouble for it.”9 Clearly, a review of §91.119’s minimum safe altitudes would have benefited the pilot in these cases.
2. Classic Aviation air ambulance crashes east of Riverton; only minor injuries reported. http://county10.com/2012/11/15/classic-aviation-air-ambulance-crasheseast-of-riverton-only-minor-injuries-reported/. Accessed November 23, 2013. 3. Classic Lifeguard - Non-injury incident. http://www.concern-network.org/concernarchive/2012/msg00043.html. Accessed November 23, 2012. 4. FAR Part §91.119: Minimum safe altitudes. 5. Aviation Safety Reporting System. http://asrs.arc.nasa.gov/. Accessed November 24, 2012. 6. Advisory Circular 00-58, as amended, provides guidance for disclosing certain violations of the Federal Aviation Regulations. http://rgl.faa.gov. Accessed November 24, 2012. 7. Pilot Loses License Flying the Too-Friendly Skies. http://www.wired.com/autopia/ 2009/04/sex-in-the-cock/. Accessed November 27, 2012. 8. FAR Part §91.13(a). 9. Pilot loses license after buzzing Galveston Co. beach. http://abclocal.go.com/ ktrk/story?section⫽news/local&id⫽7516386. Accessed November 25, 2012. 10. Quoted by Sergeant Phil Esterhaus played by actor Michael Conrad. “Hill Street Blues” (1981)
Protecting Yourself
John R. Clark, JD, MBA, NREMT-P, FP-C, CCP-C, CFC, CMTE, is a member of the board of directors for the Board for Critical Care Transport Paramedic Certification (BCCTPC) and legal advisor and member of the board of directors for the International Association of Flight and Critical Care Paramedics (IAFCCP). He is the Program Manager for Critical Care Transport at St. Vincent Hospital in Indianapolis, IN.
With increased pressure to improve the safety record of HEMS, the FAA is looking at us with a microscope. Procedurally, if an event is reported to the FAA, they will issue a letter of investigation to the pilot or aircraft operator a few days after the alleged event with an invitation to provide written comments within 10 days after receiving the letter of investigation describing the incident. Because the pilot in command has the final authority as to the operation of his/her aircraft and is authorized to deviate from the FARs in the event of “an in-flight emergency,” the written comments are the pilot’s opportunity to explain any deviations from the regulations. This information will be used by the National Transportation Safety Board judge during the investigation phase. Additional information may be required. The best way to protect yourself from an action against your certificate is to file a report in the ASRS. If the FAA determines there were no aggravating circumstances and you did not have a similar incident within the last 5 years, the most common action is the issuance of a letter of noncompliance in lieu of suspension with a requirement that some remedial training is completed within a certain time frame. If the training is completed, the FAA will generally not pursue any further action. This does not limit the employer or certificate holder from taking disciplinary action of his/her own. For the medical crew, sitting quietly and not speaking up is not the answer. As revealed in the wire strike incident, although the pilot was fired by the operator, the medical crew was disciplined as well. The best advice is that during the postflight debrief, if there is a concern, speak up and talk it over with the pilot, and if there is the potential that an FAR was violated, encourage the pilot to file an aviation safety report. Likewise, a company incident report may be a good course of action to be proactive in tackling the issue. As embarrassing as it is to reveal a bad decision, do not make matters worse by trying to hide your mistake. “Let’s be careful out there!”10
Editor’s Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright 2013 Air Medical Journal Associates http://dx.doi.org/10.1016/j.amj.2012.12.003
References 1. Medical helicopter pilot fined for flying too low over elk herd. http://www.thedenverchannel.com/news/local-news/medical-helicopter-pilotfined-for-flying-too-low-over-elk-herd. Accessed November 23, 2013.
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Air Medical Journal 32:2
John R. Clark, JD, MBA, NREMT-P, FP-C,CCP-C, CFC, CMTE
Flying Friendly Consider this: you have dropped the patient off and are headed back to your base on a lovely afternoon. Conditions are perfect, and the weather is flawless—clear blue and 22. Beneath you the sunlight glints off the surface of a river meandering slowly through a valley, and you anticipate the fields ahead to be teaming with wildlife. The pilot suggests that you take a closer look and drop down to 150 ft above ground level and follow the twisting course of the river. After several minutes, you pop up over a ridge and see a herd of deer grazing in a mowed field. The deer spook at the sound of the helicopter and start running, and the pilot expertly herds them back and forth across the open field for a little bit before you climb back up to 700 ft above ground level and continue home. The little voice in your head is saying, “What a great job this is!” Everyone in the aircraft is excited about the cool sights and the more adventurous flying than the standard “straight and level” of our day-to-day mission profile. No harm, no foul, and the only thing missing was your camera so you could have taken a picture or two from the left seat of that flock of ducks taking off from the placid river or maybe that big buck that was leading the stampede. Right?
Current Events In September of last year, Colorado Parks and Wildlife cited a hospital emergency medical services (HEMS) pilot for harassing wildlife after a group of hunters observed him flying his helicopter very low over an elk herd in a canyon near the headwaters of Granite Creek, southwest of Grand Junction.1 Ty Smith, District Wildlife Officer in Grand Junction, stated that, “The people that saw this told me that the pilot ruined their hunt. When I mentioned this to [the pilot], he agreed that his actions may have done that.” The pilot further explained that he did not feel his actions harassed the elk but did admit that he was trying to get a better look at the herds. According to the witnesses, the helicopter was flying erratically making multiple passes below the rim of the canyon and also at the treetop level, causing several gangs of elk to scatter in multiple directions. At times, it appeared to the witnesses that the pilot was herding the elk. Because the witnesses were able to provide the number, Colorado Parks and Wildlife was able to track down the pilot and helicopter. In this scenario, both the operator and the pilot were cooperative. The pilot was assessed 10 penalty points against his hunting and fishing privileges and issued a fine of $200.00. The aircraft was not carrying a patient at the time of the incident. The medical crew was also on board, but only the pilot received a citation. Incidents like this can lead to a citation, Federal Aviation Administration (FAA) action against the pilot’s license, and 60
may even escalate to confiscation of the aircraft. Reports of low-flying aircrafts that appear to be harassing wildlife are a common problem, and it is illegal for spotters in an aircraft to assist hunters in finding their game. In November of last year, during daylight and clear weather, an HEMS aircraft was en route back to base after a patient mission and struck a set of power lines causing significant damage to the helicopter. The pilot was able to keep the aircraft under control and land upright a short distance away from the collision site.2 The aircraft struck three power transmission lines when they were flying at an en route altitude of 80 to 100 ft above ground level and were acting outside the scope of their employment and in violation of Federal Aviation Regulations (FARs) as well as company operational specifications and policies.3 The pilot’s employment has been terminated, and disciplinary action was taken against the medical crew as willing participants. In this case, a wire strike protection system is credited for averting disaster. Both of these events most likely evolved from similar circumstances. Neither crew launched with the idea of breaking the law nor certainly crashing the aircraft, but both underscore the need to analyze the decision-making process that took them to this point. The regulations governing flight in the United States are numerous, but there does not have to be an FAR prohibiting a certain event for an FAA action to take place. Holding a pilot’s license is a privilege and not a right. If a complaint is made about the actions of an aircraft, the pilot (and maybe the crew) should expect a call from the FAA in order to explain their actions. Regardless of how rational the explanation, the event will be memorialized on the pilot’s FAA record even if there is no action, and, eventually, if enough complaints accumulate, an FAA action will occur at some point. Oftentimes, the FAA action is separate from the pilot’s employer and the certificate holder’s own actions. Although it may be fun, is this kind of flying worth losing your certificate over, or more dramatically, your life over?
Minimum Safe Altitudes There really is not a lot of guess work when determining how high (or low) you should be flying. The FAA outlines a minimum safe altitude in §119 of Part 91 of the FARs for the allowable minimum distance from the ground, manmade structures, and persons.4 Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes: 1. Anywhere: an altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface. Air Medical Journal 32:2
2. Overcongested areas: over any congested area of a city, town, or settlement or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. 3. Over other than congested areas: an altitude of 500 feet above the surface except over open water or over sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure. 4. Helicopters: helicopters may be operated at less than the minimums prescribed in paragraphs 1 or 2 of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the administrator. A helicopter may be operated at less than the minimums prescribed in paragraphs 2 or 3 of this section provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA. The reader out there who is always looking for the “loophole” may suggest that paragraph 4 of §91.119 indicates that there is not a minimum safe altitude for helicopters as long as operations are conducted “without hazard to persons or property on the surface.” The caveat is in §91.13 regarding careless or reckless operation. Paragraph 1 of this section dictates that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”
NASA’s Aviation Safety Reporting System Everyone makes a mistake. If you make a mistake, the NASA’s Aviation Safety Reporting System (ASRS) is a tool to report an incident in which safety may have been compromised. The volunteer and anonymous nature of the system is designed to allow the pilot to report a nonaccident unintentional event or an event that was not criminal in nature. Section §91.25 prohibits the use of any ASRS reports submitted (or any information derived from that report) in any disciplinary action except when the information is concerning a criminal offense or accident(s) that are covered under paragraphs 7a(1) and 7a(2) of the section.5 The FAA exempts the submitter from any enforcement action unless the submitter had been found guilty in an enforcement action in the previous 5 years.5 Voluntary disclosure reporting programs are intended to improve safety by providing some amnesty when promptly disclosing to the FAA an apparent violation and have taken prompt action satisfactory to correct the violation and preclude its recurrence5 and can serve an important role in achieving compliance and improving aviation safety.6 If the FAA determines that an enforcement action is required in a particular case, the FAA will consider the following factors:6 1. The nature of the violation 2. Whether the violation was inadvertent or deliberate 3. The certificate holder’s level of experience and responsibility March-April 2013
4. The attitude of the violator 5. The hazard to the safety of others, which should have been foreseen 6. The action taken by the employer or other government authority 7. The Length of time that has elapsed since the violation 8. The certificate holder’s use of the certificate 9. The need for special deterrent action in a particular regulatory area or segment of the aviation community 10. The presence of any factors involving national interest, such as the use of an aircraft for criminal purposes If the FAA considers the filing of a report to be indicative of a constructive attitude and that attitude may prevent future violations, even if the FAA does find a violation, neither a civil penalty nor certificate suspension will be imposed if (1) the violation was inadvertent and not deliberate; (2) the violation did not involve a criminal offense, accident, or action under 49 USC §44709, which discloses a lack of qualification or competency, which is wholly excluded from this policy; (3) the person has not been found in any prior FAA enforcement action to have committed a violation of 49 USC subtitle VII or any regulation promulgated there for a period of 5 years before the date of occurrence; and (4) the person proves that, within 10 days after the violation or the date when the person became aware or should have been aware of the violation, he/she completed and delivered or mailed a written report of the incident or occurrence to NASA. Although people make mistakes, wanton bad decision making is protected. For example, although the FAA does not specifically have a rule against having sex in the cockpit, it turns out that decision can result in the loss of your license. Helicopter pilot David Keith Martz (thankfully, not an HEMS pilot) lost his license for flying the “too-friendly skies.”7 Martz lost his appeal to regain the flight certificate he lost after receiving oral sex while flying above the downtown San Diego waterfront in 2005. The incident occurred nearly 4 years before the FAA learning of it when the story and accompanying video were aired on the gossip site TMZ. Martz defended his actions to a National Transportation Safety Board judge saying that receiving oral sex while flying over San Diego “wasn’t the brightest thing,” but he’s learned his lesson and should be allowed to fly. The judge disagreed and upheld his revocation saying, “The evidence clearly shows grossly reckless conduct on the part of the respondent.”7 Although there is not a specific FAR addressing sex in the cockpit, Martz operated the aircraft in a careless or reckless manner so as to endanger the life or property of another.8 In a less titillating event but similar in nature, a pilot was convicted for recklessly operating an aircraft in violation of the California Public Utilities Code. The pilot violated the law by making low passes just a few feet above the Santa Monica Pier and Santa Monica State Beach in November 2008. He was sentenced to 3 years’ probation, 60 days of community service, and 60 days of jail time and fined $900. The FAA revoked his pilot license under §91.13. He was flying an Aero 61
Vodochody L-39 Albatros, a Soviet-era, Czech-built military jet trainer, too close to the Pier and State Beach. On a similar note, a general aviation pilot lost his license after buzzing Galveston County beach in 2010. The FAA received complaints that an airplane buzzed a crowd on a Galveston County beach, flying a single-engine plane as low as 15 feet about the ground and snagging a fishing line.9 The pilot surrendered his airman certificate after receiving a revocation letter from the FAA. An interesting side note from this incident was that one of the passengers asked if they would be in trouble for flying so low according to the FAA investigation. The pilot replied that he had “buzzed the beach many times” and “would not get in trouble for it.”9 Clearly, a review of §91.119’s minimum safe altitudes would have benefited the pilot in these cases.
2. Classic Aviation air ambulance crashes east of Riverton; only minor injuries reported. http://county10.com/2012/11/15/classic-aviation-air-ambulance-crasheseast-of-riverton-only-minor-injuries-reported/. Accessed November 23, 2013. 3. Classic Lifeguard - Non-injury incident. http://www.concern-network.org/concernarchive/2012/msg00043.html. Accessed November 23, 2012. 4. FAR Part §91.119: Minimum safe altitudes. 5. Aviation Safety Reporting System. http://asrs.arc.nasa.gov/. Accessed November 24, 2012. 6. Advisory Circular 00-58, as amended, provides guidance for disclosing certain violations of the Federal Aviation Regulations. http://rgl.faa.gov. Accessed November 24, 2012. 7. Pilot Loses License Flying the Too-Friendly Skies. http://www.wired.com/autopia/ 2009/04/sex-in-the-cock/. Accessed November 27, 2012. 8. FAR Part §91.13(a). 9. Pilot loses license after buzzing Galveston Co. beach. http://abclocal.go.com/ ktrk/story?section⫽news/local&id⫽7516386. Accessed November 25, 2012. 10. Quoted by Sergeant Phil Esterhaus played by actor Michael Conrad. “Hill Street Blues” (1981)
Protecting Yourself
John R. Clark, JD, MBA, NREMT-P, FP-C, CCP-C, CFC, CMTE, is a member of the board of directors for the Board for Critical Care Transport Paramedic Certification (BCCTPC) and legal advisor and member of the board of directors for the International Association of Flight and Critical Care Paramedics (IAFCCP). He is the Program Manager for Critical Care Transport at St. Vincent Hospital in Indianapolis, IN.
With increased pressure to improve the safety record of HEMS, the FAA is looking at us with a microscope. Procedurally, if an event is reported to the FAA, they will issue a letter of investigation to the pilot or aircraft operator a few days after the alleged event with an invitation to provide written comments within 10 days after receiving the letter of investigation describing the incident. Because the pilot in command has the final authority as to the operation of his/her aircraft and is authorized to deviate from the FARs in the event of “an in-flight emergency,” the written comments are the pilot’s opportunity to explain any deviations from the regulations. This information will be used by the National Transportation Safety Board judge during the investigation phase. Additional information may be required. The best way to protect yourself from an action against your certificate is to file a report in the ASRS. If the FAA determines there were no aggravating circumstances and you did not have a similar incident within the last 5 years, the most common action is the issuance of a letter of noncompliance in lieu of suspension with a requirement that some remedial training is completed within a certain time frame. If the training is completed, the FAA will generally not pursue any further action. This does not limit the employer or certificate holder from taking disciplinary action of his/her own. For the medical crew, sitting quietly and not speaking up is not the answer. As revealed in the wire strike incident, although the pilot was fired by the operator, the medical crew was disciplined as well. The best advice is that during the postflight debrief, if there is a concern, speak up and talk it over with the pilot, and if there is the potential that an FAR was violated, encourage the pilot to file an aviation safety report. Likewise, a company incident report may be a good course of action to be proactive in tackling the issue. As embarrassing as it is to reveal a bad decision, do not make matters worse by trying to hide your mistake. “Let’s be careful out there!”10
Editor’s Note: While the information in this article deals with legal issues, it does not constitute legal advice. If you have specific questions related to this topic, you are encouraged to consult an attorney who can investigate the particular circumstances of your individual situation. If you have an issue you would like to see addressed in a future issue of AMJ, please contact the author at [email protected] to suggest a topic. 1067-991X/$36.00 Copyright 2013 Air Medical Journal Associates http://dx.doi.org/10.1016/j.amj.2012.12.003
References 1. Medical helicopter pilot fined for flying too low over elk herd. http://www.thedenverchannel.com/news/local-news/medical-helicopter-pilotfined-for-flying-too-low-over-elk-herd. Accessed November 23, 2013.
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Air Medical Journal 32:2