Your Fitness to Fly and why “Reason to Know” is Important Language

As a lawyer practicing aviation law, I often deal with fascinating factual and legal issues.  A year ago, I wrapped up work on a lawsuit that provides a case study of the tension between a pilot’s duty to self-evaluate fitness prior to flight and real-world complexities. As a pilot and a lawyer, the case underscored for me the importance of education and checklists as a lens to conduct self-evaluation. 

Robert Bell is licensed to practice law in Montana. With over twenty years of practice experience, Mr. Bell provides counsel to companies and individuals on a range of business, real estate and aviation matters. His litigation work focuses on construction law, insurance law, serious injury cases and commercial disputes. Mr. Bell is also an instrument-rated private pilot and has served as counsel in aviation cases pending before Montana courts, as well as the National Transportation Safety Board.

The case arose from a helicopter crash. In a nightmare scenario akin to the plot of the original “Airport” movie, the commercial-rated pilot who held a second-class medical certificate passed out midflight and became completely non-responsive. The helicopter immediately entered a dive, heading for the ground at over 100 knots. Remarkably, a non-pilot passenger sitting in the other front seat reacted by grabbing the cyclic and trying to level the helicopter. He had partial success, briefly stabilizing the helicopter several hundred feet above the ground.  After a second or so, the helicopter rolled to one side and crashed. Thankfully, the pilot and passengers survived, albeit with serious injury.

The lawsuit focused on two questions: 1) the medical cause of the pilot’s incapacitation, and 2) whether the pilot appropriately evaluated his fitness to fly. The pilot contended the incapacitation resulted from a previously unknown medical condition which caused a drop in blood pressure and fainting. The passengers contended the pilot lost consciousness from a neurologic reaction (vasovagal reflex) to a stomach infection. 

Whatever the actual cause, it was undisputed that the pilot had consumed food at a restaurant the evening before which tasted strange and caused him serious gastrointestinal symptoms during the night.  He experienced physical discomfort in his digestive system and awoke multiple times throughout the night for varying periods of time. 

All involved acknowledged that the pilot did not set out with the intention of placing himself or others in danger. Nevertheless, the question remained whether he appropriately evaluated his fitness to fly and if not, whether the failure was the cause of the crash.  The case did not go to trial, so we will never know how a jury would have decided the case.

Nevertheless, the case highlights the importance of conducting a detailed self-assessment to minimize both flight risk and litigation exposure. Things came into sharp focus when, about a year after the case concluded, I coincidentally took the AOPA BasicMed course. About halfway through, it dawned on me that if the commercial-rated pilot in the case had applied the principles and/or used the detailed self-assessment checklists supplied in the course, he may well have declined the flight, or at least would have been better positioned to argue that he had conducted appropriate self-assessment prior to flight. 

All pilots, regardless of whether they are flying pursuant to a medical certificate or BasicMed, bear the responsibility of complying with 14 CFR § 61.53. It provides that no person may act as pilot in command, or in any other capacity as a required pilot flight crew member, “while that person knows or has reason to know” of any medical condition that would make the person unable to operate the aircraft in a safe manner. Even if a pilot does not actually know of a disqualifying condition, a pilot should not fly if he or she has reason to know it would be unsafe. 

Why is the “reason to know” language important? Because it seems to impose a responsibility on the pilot to become educated concerning fitness to fly issues. To this end, AOPA provides some outstanding tools. As I worked my way through the BasicMed course, I reviewed one of the checklists supplied within it. This checklist used the generic IMSAFE mnemonic as a starting point, but went on to pose more detailed questions that forced genuine self-analysis.  The checklist identified risk considerations that might have altered the pilot’s decision in my case:  “upset stomach,” “proper nutrition,” “interrupted sleep,” and “external pressures,” were mentioned among others.

Rarely are go/no-go decisions black and white.  It may be that the pilot would have decided to fly even after reviewing the detailed checklist.  However, if the pilot had done so, he would be better positioned in litigation in that he could assert he followed a checklist to conduct a specific and thorough self-evaluation. In the final analysis, the use of educational materials and detailed checklists provide pilots with a lens for self-assessment. Use of resources like those supplied in AOPA’s BasicMed course can enhance safety and provide pilots with increased liability protection. Most importantly, using educational tools and checklists can help prevent tragic incidents that invariably lead to litigation.

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