• Hospital Liable under Aviation Safety Whistleblower Law
  • July 31, 2009 | Author: Robert M. Wolin
  • Law Firm: Baker & Hostetler LLP - Houston Office
  • Miami Valley Hospital (Miami Valley) and an air ambulance service which furnished pilots and mechanics for the hospital’s air ambulance operation were held jointly liable by the U.S. Department of Labor’s Administrative Review Board (Board) for violating the whistleblower protection provisions of the Aviation Investment and Reform Act for the 21st Century (AIR 21) when they fired an air ambulance pilot as a result of his safety-related complaints to a supervisor and the Federal Aviation Administration (FAA). Evans v. Miami Valley Hospital, DOL ARB, No. 07-118 (June 30, 2009). The Board ordered the pilot reinstated with back pay and awarded him $100,000 for the emotional distress resulting from his termination.

    AIR 21 prohibits any “air carrier or contractor or subcontractor of an air carrier” from discharging an employee or otherwise discriminating against an employee with respect to compensation, terms, conditions or privileges of employment because the worker provided either the employer or federal government with objectively reasonable information relating to any violation or alleged violation of any FAA order, regulation or standard or any other federal law relating to air carrier safety. Miami Valley was held jointly liable with the air ambulance company for the pilot’s termination, despite the fact that Miami Valley did not directly employ the pilot or hold an FAA aviation certificate.

    The Board determined that Miami Valley was an employer and air carrier subject to liability under AIR 21. It was deemed to be an employer because it exercised control over the terms, conditions or privileges of the pilot’s employment. Miami Valley was found to be an air carrier based upon language in its operation manual which described its CareFlight program as “an air ambulance service designed to provide rapid transport” of nurses to patients and patients to care centers. An air carrier, according to the Board, includes anyone who “directly or indirectly” transports passengers by air for compensation, which “is exactly what” Miami Valley does.

    While the Board found the pilot’s safety complaints objectively reasonable in this case even though Miami Valley had no incidents, it appears that the hospital, as a result of its emphasis on air ambulance uptime, failed to heed the pilot’s early warnings regarding the safety practices of CJ Systems, the air ambulance service provider. CJ Systems had ten FAA-reportable accidents and incidents with five fatalities in 2005 and 2006, was limited by the FAA to flying under visual flight rules (meaning a minimum visibility of three miles) and had four investigations that ultimately led to the imposition of significant fines for maintenance and flight operation violations.

    AIR 21, however, has a safe harbor that allows a whistleblower to be terminated if the employer can demonstrate by clear and convincing evidence that it would have taken the same adverse action against the employee even if he or she had not been a whistleblower. The hospital and the air ambulance provider argued that they would have otherwise terminated the pilot for his own violations of FAA regulations. The Board, however, found that argument to be pretextual and determined that the pilot was fired for providing information relating to an FAA violation.

    When a hospital is deemed to be an “air carrier,” as Miami Valley was in this case, the hospital and its air ambulance contractor must develop polices and procedures to assure compliance with the air carrier rules, including the pilot background check requirements under 49 U.S.C. § 44703(h) which require air carriers to (1) maintain for five years certain records related to their pilots; (2) respond to reference checks relating to pilots within 30 days and provide notice to the subject pilot within 20 days; (3) allow pilots to review and correct certain data in their employment records; and (4) limit the disclosure of certain information regarding pilots to a five-year period and require compliance with the statutory format for a request for such records. Pilot background checks recently have come under FAA and National Transportation Safety Board scrutiny as a result of the Buffalo, New York, crash of a Continental Connection Flight in which it was discovered only after the accident that the pilot failed a number of FAA general aviation checkrides before he applied for his pilot position. When responding to background checks, a healthcare provider that is deemed to be an air carrier is generally immune from liability; however, if the provider misrepresents to a subsequent employer that it does not have employment records or fails to provide the records when such records are available, it may have liability to the pilot. See e.g., Johnson v. Baylor University, 188 S.W.3d 296 (Tex. Civ. App. 2006).