THE LAWSUIT CONTINUES!
Delta engaged an ophthalmologist, Dr. Alan Kozarsky, to monitor their pilots in the HIMS program. HIMS is the alcohol pilot program. Kozarsky may be a great ophthalmologist when pilots can’t see going to work, but this case is based upon Kozarsky’s behavior as a HIMS doctor. He has been allegedly charged as negligent in his actions.
Dr. Kozarsky filed a Motion to Dismiss
On October 6, 2025
Dr. Alan Kozarsky Lost his Motion!
The judge asserted, “In sum, Mr. Barnard’s complaint, accepted as true, plausibly alleges that it was foreseeable that Dr. Kozarsky’s report would cause the FAA to revoke Barnard’s medical license and prevent him from flying for Delta. Accordingly, Mr. Barnard has adequately pled proximate cause at this stage of the proceedings.”
As a legal precedent all assertions in a complaint are considered true and factual. Everything I summate below are those alleged assertions of which the judge reiterated in her ruling. I have attached the ruling so you can read the full history, arguments on both sides, and the judge’s decision on each point in: Martin Bernard v. Alan M. Kozarsky CIVIL ACTION NO. 1-14-CV-3461-SEG.
HISTORY
Martin was charged with a DUI in 2020. He subsequently entered the HIMS program. Delta told him to see Dr. Kozarsky. Dr. Kozarsky became Barnard’s HIMS doctor, and billed Barnard directly. As identified in the ruling, Dr. Kozarsky also performed a “wide range of services, including monitoring and evaluating his recovery, determining and authorizing appropriate medication, and determining the extent of further treatment, including psychiatric/psychological consultations.”
That sounds like a doctor to me! However, Kozarsky is arguing that he has “no doctor-patient relationship” with Captain Barnard, therefore he has no ethical or legal obligations with respect to negligent behavior. Not that he was not negligent, but because he is an FAA representative, he is exempt from liability of any kind. Furthermore, in Captain Barnard’s recent court hearing with an NTSB administrative law judge the FAA disavowed themselves from Dr. Kozarsky, unequivocally and emphatically arguing, he does not work for nor represent the FAA.
Between February 2021 and October 2022, Captain Barnard had approximately eight consultations with Dr. Kozarsky, and then on September 22, 2021, the FAA granted him a special issuance of a first-class airman medical certificate.
HONESTY KILLS THE MESSENGER
October 4, 2022, Captain Barnard told Dr. Kozarsky that “he may have accidentally consumed a low alcohol beer despite his intention to purchase an alcohol-free beer.” On October 14, 2022, his PEth test results were reported as negative. He did not drink, and the test proved as much.
However, despite a negative test, Dr. Kozarsky took it upon himself to report to FAA medical representatives Dr. Charles Chesanow and Dr. Matthew Dumstorf that Mr. Barnard was experiencing an “imperfect recovery” and presented an “increased risk for full relapse . . . .”
Who does that, and why? I suspect now that Kozarskly lost his motion to dismiss, discovery will answer those questions of who and why. Documents and depositions will build this case. I also have a lengthy file and history from another Delta pilot with respect to the same doctor, who subsequently settled with Delta and signed an NDA. I didn’t sign and NDA, and now that Barnard can proceed, those documents may become public record to show the history.
HARM FROM KOZARSKY’S ACTIONS
After Delta received Dr. Kozarsky’s report, the airline gave Captain Barnard an “ultimatum” that “he would have to accept Kozarsky’s false diagnosis of alcohol relapse and submit to a minimum ninety-eight (98) day internment in-patient program, in order to regain his position as a Delta line pilot.” This would be a 14-week highly invasive program.
The essence of this lawsuit is that Dr. Kozarsky’s “negligent communication of false and misleading information to the FAA led directly to the revocation” of his FAA medical certificate and “the loss of his position as a commercial pilot with Delta.”
KOARSKY’S FINDINGS:
Dr. Kozarsky’s finding of relapse was based on three factors:
(1) that Plaintiff had three ‘dilute’ urine specimens in the prior year,
(2) that the result of Plaintiff’s October 3 PEth test was ‘sub threshold,’ and
(3) the motivation to purchase beer-like beverages, ‘whether alcohol containing or not’ is ‘suggestive of an imperfect recovery.’”
MEDICAL MANIPULATION OF DATA (OR NEGLIGENCE)
- Dr. Kozarsky allegedly reported three of Barnard’s recent EtG urine tests as “dilute,” even though the laboratory had reported the result of each specimen as “negative dilute,” which confirmed the lack of alcohol in Barnard’s system. Captain Barnard also asserts that Dr. Kozarsky’s representation that the “‘three recent dilute urine specimens is suggestive of an imperfect recovery’ was either an intentional or a grossly negligent misinterpretation of the medical data in his possession.” But these dilutes had been ongoing for a year, and Kozarsky didn’t take action then.
- SUB Threshold? What does that even mean? It was NEGATIVE!
- Purchasing “beer-like” beverages indicate an imperfect recovery? I gave my children Sparkling Cider in champagne glasses to toast with the adults during holidays, and they drank virgin Pina Coladas on vacation. Not one of them had a imperfect recovery, nor did they become alcoholics. Non-alcoholic Beer is marketed for a purpose, in that those who choose not to drink could still be part of the community who did. To isolate anyone from their community would be a greater harm to any recovery.
KOZARSKY’s ARGUMENT.
“Dr. Kozarsky contends that his alleged misrepresentation of chemical test results did not proximately cause the FAA’s revocation of Mr. Barnard’s medical certificate or his departure from Delta. (Doc. 11 at 14.) That is, Dr. Kozarsky argues that because the FAA—and not him—had the independent authority to revoke Mr. Barnard’s FAA medical certificate, he could not have been the proximate cause of the revocation. (Id. at 15.) Instead, Dr. Kozarsky asserts that he merely “furnished the occasion” for the FAA and Delta to make independent decisions about Mr. Barnard’s ability to fly.”
Then the judge said:
“The Court Respectfully Disagrees.”
The HIMS program is the most frightening legal manipulation of human life for profit that I have ever seen. Even HIMS AME Dr. Chien told me, “Doctors can be bought.” I will be watching this case and reporting as it progresses. In the meantime, if you are a pilot, or know of a pilot, who needs help with respect to HIMS, go to: Pilots For HIMS Reform. Reform is definitely needed.
NOTE:: In view of the court’s decision, Barnard has made a settlement offer, but has received no response to date.
6 Comments
Karlene, While the values of the leaders of the airlines in the USA remain so far removed from what they need to be, I fear we will see more cases such as Dr Kozarsky’s pathetic, and fortunately failed, motion against a pilot.
While the FAA continue to dance to the tune of the airline leaders is HIMS the best we are going to get? Surely not.
And even I, looking from over here in the UK, can see some simple changes in HIMS which I hope would fill in some of the gaps while a better and fairer system is brought in.
Why is there confusion about the relationship between pilots and the HIMS practitioners? Could easily be clarified. Why are physicians working well outside their expertise? You’re an Ophthalmologist, you practice Ophthalmology only! No Pick ‘N Mix of specialties. All test interpretation to be done only by trained specialists in the interpretation of those specific tests. Strict testing and retesting protocols.
I’m probably missing something, it sounds too straightforward,
The judges explanation is impressive, but the key question is why the FAA has tolerated so many holes in the system.
Primarily, of course, we need to get pilots’ careers back on track.
How did we get here? Have changing societies dragged the airline sector along with them, to places they avoided in the past? Sadly I fear they have.
The only approach is yours, Karlene, an unending fight to change the status quo and raise the standards. Keep Up The Good Work.
Ken
Ken, sometimes the easiest solutions are the simplest. You called this one… stick to what you’re trained to do. So how is this ongoing? They are sliding under the rug because unless it impacts the individual, nobody cares. And those that it impacts are called addicts whether they are or not, and cannot be trusted. And, unfortunately these doctors have a fiefdom and the FAA is either complicit, or they know not enough to understand how to manage it correctly. Interestingly in this pilot’s case, I listened to the judge’s ruling from the NTSB, that will be up of appeal, but one of the psychiatrists, a Dr. Bergdorf, who is “not” even an addiction psychologist and was relied heavily on, said it didn’t matter if the pilot drank or not. That wasn’t the point. He has to go to meetings and prove he’s making an effort for good recovery. Not that he is successful. So, I suppose a pilot who drinks but attends meetings is working a good program. I will be speaking more of this soon. And thank you so much for your kind comments. We have to change the status quo and prove we care more about the human, than harming them for money.
Karlene, Thanks. I’d go for complicit and incompetent.
The whole HIMS programme is clearly not focused on what pilots, their colleagues, their families, their employers, and the travelling public need, that is pilots who do develop a habit being helped to end it as quickly as possible. Perhaps the very powerful model of AA meetings is not what an addiction programme for pilots needs; a one-to-one programme might be better?
The huge issue I see as one of the drivers of everything you and I, and thousands of whistleblowers and campaigners, have been battling for for decades, is that modern Societies struggle to keep Safety-Critical sectors focused on Total Safety.
In the USA airline leaders and pilot leaders have been sliding backwards from the summit reached in 1979, the Politics of Flight Safety have been a barrier to maintaining high standards.
In the UK our National Health Service, the NHS, was launched by politicians who had no grasp of the imperative of Safety-Critical for healthcare services. Sadly, the healthcare professions in the UK had no grasp of that imperative either; “We bury our mistakes” was probably the underlying belief until not many years ago!
While the civil aviation sector in the UK had itself, in its earliest days, called for regulation of the whole sector, nearly eighty years on from the launch of the NHS there is still no meaningful regulation. “Reputation Management” is the primary driver of Patient Safety Politics, while our healthcare professions easily keep politicians on their side, which is definitely not the Public’s and Patients’ side!
The result, Avoidable Deaths caused by Errors made by NHS staff, are not even properly counted; estimated at 11,000 per annum, or is it 13,000 per annum? 800 perinatal deaths in that figure, both babies and mothers.
I suggest UK Society has not yet grasped that scale of failure, death, and harm.
What would UK Society do if it did grasp it? I doubt it knows.
Our fight goes on!
Ken, thank you for sharing those staggering statistics. Most people could never imagine. It’s hard for me to believe how it’s possible to allow the healthcare system to kill so many babies (and mothers) and nobody does anything. Well, you are. But burying their problems is a visual that speaks volumes. I hope you will succeed in your fight for justice and a fix. We can never bring them back, but perhaps with accountability they won’t kill more in the future.
I also believe that you have identified the problem with HIMS. They are not “Focused” on the need. The history was to study the impact of alcohol of those pilots coming out of the war who would joining the airlines. This program put a pilot who was drunk while flying, back into the sky. Now the program harvest pilots wherever they can find them, despite if they drink or not, and there is an industry of doctors profiting greatly by calling everyone an alcoholic, whether they are or not. All we can do is create awareness and hope to find humans who care about humanity to assist in demanding a humane world
Karlene,
I’ve read your posting on LinkedIn regarding this latest boondoggle in the HIMS program at Delta, and I’m truly angry at how this once-helpful program has changed over the years.
The HIMS program was begun at Eastern Airlines and its sole purpose was to allow a pilot to overcome and resolve any alcohol problems and resume their flying career; period. That was how the program was handled at Eastern, and it was successful in that all the parties involved agreed that this was the singular goal. I believe the pilots were even paid for the trips they missed when going through the HIMS program. There was no public disclosure of who was in the program (unless the pilot voluntarily did so, and some did, for reasons known only to themselves), and there was no shame whatsoever attached to it. It truly hurts and angers me to read how this successful procedure has changed into a punitive one. This must have been done with ALPA’s knowing consent. ALPA was the guarantor that the program would be discreet and help the pilot retain his/her career. Management also agreed to those premises.
I say that because under the present circumstances, at least at Delta, a pilot risks his or her career and livelihood if he or she comes forward and admits to a problem. I also suspect that after what has transpired at Delta, that pilots at other airlines would be reticent to step forward and enter the HIMS program. It has gotten to the point that, like many other items at the airlines today, such as flight safety, the dollar sign comes before anything else. Never mind that “doctors” (if you can even call them that?) should never be able to be bought off by anyone, which apparently has been done in many cases, including yours. I believe that due to the complicity between the airline, the FAA and ALPA that the HIMS and any affiliated programs should be immediately discontinued, permanently. I truly hate to see this happen, knowing how many pilots the program helped in the past, when it was properly administered by ALL the parties.
Thank you for the comment. I, too, think this needs to go away. The HIMS program uses AA. Pilots can go to AAA themselves if they have a problem. But the difference is, in the real world outside the HIMS program, if they aren’t an alcoholic, they’ll soon learn they don’t need the program to not drink. If they don’t drink and don’t have cravings there will be no calls to their sponsors. But… the HIMS program basically destroys the pilot’s life. It was there for a purpose and now they have gone astray. I am certain there are more like yourself who saw the good and where we have gone. Thank you for the comment!