Barnett Law Offices recently represented a Delta Air Lines pilot who suffered a cardiac arrest while operating a 777 from Frankfurt, Germany, to Chicago in May of 2020.
A pilot with an implantable cardioverter-defibrillator (ICD) has received an unprecedented first-class FAA medical certificate. Never before has the FAA issued a medical certificate, let alone a first-class medical certificate, to a pilot with an active ICD. Barnett Law Offices recently represented a Delta Air Lines pilot who suffered a cardiac arrest while operating a 777 from Frankfurt, Germany, to Chicago in May of 2020.
The captain was able to resuscitate the pilot, a first officer, after using CPR and the on-board emergency defibrillator. The flight diverted to Canada because of the emergency created by the pilot’s cardiac arrest. The pilot was initially treated in Canada and received an active ICD, which allows for continuous monitoring of his heart function, and, if needed, can deliver an electronic shock to bring the heart back into rhythm. It is routine for many cardiac arrest survivors to receive an ICD before returning home, especially when the exact cause of the cardiac arrest is not immediately identifiable—as was the case for our pilot here. The pilot subsequently received care at Mayo Clinic in Rochester, Minnesota.
While at Mayo Clinic, the pilot’s cardiologist and electrophysiologist identified the cause of the pilot’s cardiac arrest: PVC-triggered ventricular fibrillation. A PVC is a premature ventricular contraction that occurs when the heart generates an electrical impulse too early, resulting in premature and sometimes ineffective contraction. Thankfully, the pilot’s physicians were able to locate the source of the PVCs and perform an ablation, which eliminated our pilot's PVCs almost altogether. Even though this ablation was successful, it is still not routine or clinically indicated to remove or deactivate someone’s ICD when the ICD is functioning normally. And, in the unlikely event this pilot could enter ventricular fibrillation again, the active ICD will be able to shock his heart back to a normal rhythm. Therefore, the pilot opted not to remove or deactivate his ICD.
Despite making a full recovery, the FAA denied the pilot a first-class airman medical certificate because of the pilot’s history of ventricular fibrillation; cardiac arrest, and an active ICD. The pilot exhausted all of his options with his AME and doctors, and opted to appeal the denial of his medical certificate to the NTSB.
After filing a petition for review of the denial of a medical certificate, the FAA offered to reconsider the pilot’s medical application, but only if he removed or deactivated his ICD. This is consistent with the FAA’s policy on pacemakers. While it is possible to get a medical certificate from the FAA with a pacemaker, any pacemaker that also has an ICD is not accepted without the ICD component of the pacemaker being deactivated. However, since the removal of a normally functioning ICD is not clinically indicated or routine, the pilot declined to remove or deactivate his ICD.
Having an active ICD is not listed anywhere in Part 67 of the FARs as disqualifying. Therefore, the FAA, if they want to deny a first-class medical applicant for having an ICD, must deny the pilot under FAR 67.113. This regulation is exceedingly broad. I deposed an FAA doctor who testified on behalf of the FAA. This FAA doctor suggested that a pilot is eligible under FAR 67.113 if the pilot is eligible under the other Part 67 regulations. Such circular logic raises the question of both the purpose and the lawfulness of FAR 67.113. Such a use and interpretation of FAR 67.113 is arbitrary and capricious, which is illegal under the Administrative Procedure Act.
After deposing three more doctors, two of which treated our pilot and one of which was hired by the FAA to support the FAA’s denial, we established the following:
As a result of the above, mere days before opening statements were to be delivered to start the hearing before the NTSB, the FAA issued our pilot a special issuance medical certificate. A special issuance medical certificate affords a pilot the same privileges as a standard, unrestricted medical certificate. But a special issuance medical certificate allows the FAA to require the regular submission of medical documentation or evaluations. In any event, to our knowledge this is still the first medical certificate, unrestricted or special issuance, that the FAA has issued to a pilot with an active ICD.
We are happy to report that our pilot has returned to training at Delta Air Lines and is excited to return to his aviation career.
