Home / Law & Politics / Doctors Want Courts To Reconsider Florida Gun Law

Doctors Want Courts To Reconsider Florida Gun Law

doctor gunsBy Brad Broker

In their defense of the Second Amendment, the National Rifle Association (NRA) has managed to strip physicians of their First Amendment rights.

That’s the argument made by the ACLU, the American Medical Association, American Academy of Pediatrics, and a host of other medical societies in a brief filed last week with the U.S. Court of Appeals.  In the case of Wollschlaeger vs. Governor of Florida, physician Bernd Wollschlaeger challenged the Florida Firearm Owners Privacy Act (FOPA), which prohibits Florida doctors from asking patients if they own or possess firearms.

“The state equally could prohibit doctors from discussing with patients the health risks of smoking or eating too much red meat, no matter what the purpose of the legislation,” Wollschlaeger said in a separate brief.

The issue in this case is whether FOPA violates the First Amendment. The ACLU contends that FOPA, as currently ruled, “has essentially one purpose: to restrict physicians from communicating freely with their patients on issues relating to the ownership and possession of firearms,” according to the brief.  The enforcement of the act “will denigrate the practice of medicine.”

The ACLU said in the brief that “there is no disagreement within the medical community that providing patients with information about firearm safety is a valid aspect of preventative care and thus beneficial to public health.”

Former NRA president Marion Hammer offered as a solution that “physicians who genuinely wish to offer safety information can simply hand out firearms safety and safe storage brochures to all patients.”

The ACLU contends in their brief that the effects of this case could extend beyond guns:

In order to conclude that the Florida law was constitutional, the panel majority was compelled to — and did — determine that professional communications between physicians and patients should be subject only to rational-basis scrutiny.

The problem with that standard, according to the ACLU and adjoining medical societies, is who is ultimately responsible to determine rational scrutiny?  In this case, the NRA was dictating their beliefs on medical standards of practice.  How might that affect other groups when patients are asked of drug use or sexual activity or even privacy rights when patients are asked to disrobe for a physical exam?

“Physicians must know all pertinent facts before recommending a treatment option,” said the ACLU. “Without a sense of complete openness and mutual trust, the practice of medicine is compromised.”

The ACLU, et al, have asked the court to reconsider its ruling.  The brief can be read in its entirety here.

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19 comments

  1. Doctors should have the right to ask their patients who are diagnosed with clinical depression and are at risk for suicide whether or not they have access to or own guns, as this is one of the most common methods used to commit suicide. This information is relevant for the doctor to help treat their patients to prevent potential harm they may inflict on themselves and others. For example, if Adam Lanza had been seeing a psychiatrist for mental illness or depression, knowing whether he had access to guns would have enabled his physician to implement a preventative treatment plan in order to reduce potential gun violence as a disease.

  2. There is no First Amendment right to collect personal information not directly related to a particular patient’s care, which is all the law prohibits (well, that and discriminating against patients based on gun ownership). The law in no way restricts physicians from discussing gun safety with patients, or even from asking about gun ownership if it is directly relevant to the care of a particular patient. Like dozens of other privacy laws, which are uniformly accepted as not violating free speech rights, the law merely bans the collection, recording, or sharing of information when it is not directly related to an individual’s personal medical care.

    Far from preventing physicians from discussing gun safety (something they’re not qualified to do anyway, given that they receive exactly zero training in firearms safety), it simply forces physicians who wish to do so to discuss it with their all patients, rather than prescreening patients for firearms ownership first. Given that patients may lie about owning guns, or may purchase a gun in the future even if they don’t have one now, this actually improves the chances of such information being given to patients who are or will be gun owners. If physicians who oppose the law really cared about patient safety, this would be a good thing. The only reason to oppose it is if these physicians have an ulterior motive in collecting ownership information, and are not really concerned with patient safety at all.

  3. Actually this prevents them from Malpractice by not allowing them to question or offer advice in an area in which they have no expertise. The doctors should be all for this law.

  4. Editor’s Note: The infographic used in this article was designed by the American Academy of Pediatrics (www.aap.org).

  5. Cute little poster endorsing “Boundary Violations”. (I can’t wait to see your poster endorsement “Doctors for Patient Dating”!)
    How does the State Medical Board feel about you committing “Boundary Violations”?
    If an official complaint was filed by a patient, as I would do, can you satisfy the Board that you have covered all other legitimate home health hazards of greater risk than guns, such as choking on a hot dog? (CDC 2010 Suffocation: 1,118, Drowning: 726. “Medical Misadventures” . . .?)
    And prove to them that your “concern” wasn’t simply ignorance and politics based? (You’re accepting easily disproved numbers on the poster . . . well, it doesn’t look very good. Do you really need your medical license?)

    Doctor consider this: How much legitimate firearms training do you actually possess?
    Enough to satisfy your insurance company should they learn of your “Practicing in a professional capacity outside of your certified field of expertise” under their insurance coverage? (Can you really afford/Do you really need a malpractice insurance increase, or cancellation?)

    “With more than 4,000 children killed by guns every year in the US, we think it would be a crime not to ask.”

    Hmmm, was the “more than 4,000 children killed by guns every year in the US” number found during a proctology examination? Can you support that number before a Medical Board?

    According to the Center for Disease Control in 2010 the actual number of children killed by guns was 301, this includes all homicides, accidents, and suicides combined. (WISQARS Fatal Injury Reports for 2010)
    Where did the poster’s other 3699+ come from? Or is the “More than 4,000 a day” counting 35-year-old “children”?

    Bottom-line: Maybe the thing to do would be to practice what you are trained to do: medicine.
    And leave such lies and political BS to the tyrant-wannabe politicians.

  6. Physicians’ First Amendment right is limited by professional ethics.

    In the context of the doctor/patient relationship, the doctor is a presumed authority figure, which is fine as long as s/he sticks to medicine, diagnoses and treatment. Political proselytizing is where that “authority” relationship ends. Under the guise of purported medical advice, these doctors are hawking the progressive ideological view of civilian gun ownership, and that, ladies and gentlemen, is unethical.

    Unless firearms are directly related to a medical condition or treatment (tendonitis, for example, or clinical depression), a doctor has no business even discussing guns in a political context, much less accumulating personal gun data in the patient’s medical records.

    And that is what they do.

    And they can’t.

    And they’re bitching about it.

    The answer is NO. You can’t. Period.

    • Doctors have 10-15 minutes with you. We need to talk quickly and only about your health. Not interested in chit chat, so I wouldn’t make small talk about guns. It’s only a question for medical purposes, which leads me to your point:

      “Unless firearms are directly related to a medical condition or treatment (tendonitis, for example, or clinical depression)….”

      Don’t look now, but you agree with every doctor out there. Doctors only want to ask the question in relation to a medical condition or treatment.

      Thank you for your support.

  7. Still looking for how the law violates your 1st amendment rights of free speech….oh wait, it doesnt!

    Imagine this scenario: you visit your doctor for back pain. Your doctor asks if you have firearms in your home. Then he announces that your family would be better off (especially your children) if you had no guns at all in your house. You leave the doctor’s office feeling uneasy, wondering what guns have to do with your backache. Does your doctor care about your family’s safety?

    Or instead, did he use your trust and his authority to advance a political agenda?

    American families may soon find themselves in this scenario. Social activists are taking their war on gun ownership to a new battleground: the doctor’s office. (1) The American Medical Association (AMA) (2), American Academy of Pediatrics (AAP) (3), and American College of Physicians (ACP) (4) are urging doctors to probe their patients about guns in their homes. They profess concern for patient safety. But their ulterior motive is a political prejudice against guns and gun owners. And that places their interventions into the area of unethical physician conduct called boundary violations.

    Doctor-patient sex is the most well-known and sensational example of a boundary violation. More recent literature recognizes a wide variety of non-sexual violations. (5) These cover such issues as finances, confidentiality, and gratification of the doctor’s needs. Although boundary violations were first addressed in the psychiatry literature, it has become clear that they also occur in general medical practice. (6)

    Boundaries in the doctor-patient relationship derive naturally from the relationship’s fiduciary nature. In general, “treatment boundaries can be defined as the set of rules that establishes the professional relationship as separate from other relationships and protects the patient from harm.

    A patient who seeks medical or psychiatric treatment is often in a uniquely dependent, anxious, vulnerable, and exploitable state. In seeking help, patients assume positions of relative powerlessness in which they expose their weaknesses, compromise their dignity, and reveal intimacies of body or mind, or both.” (7)

    Thus compromised, the patient relies heavily on the physician to act only in the patient’s interest and not the physician’s.

    A doctor must put the patient’s needs before his own. But a physician reverses the priorities when because of passionate political beliefs he tries to influence his patient against guns.

    This physician puts his own need to “do something” about the perceived evil of guns before the needs of his patient. He crosses the line from healer to political activist. Such doctor-on-patient political activism is recognized in Epstein and Simon’s Exploitation Index (8) as a boundary violation.

    Just as some physician sexual transgressors may insist their sex relations with a patient are therapeutic, the activist doctor may protest that he only seeks to prevent “gun violence.” However, the conduct of the medical activists strongly indicates that their interest in patients’ guns is political, not therapeutic.

    The AAP, ACP, and AMA are members of the Handgun Epidemic Lowering Plan (HELP) Network, based in Chicago. HELP is an exclusive advocacy group dedicated to banning guns. Physicians who disagree with HELP’s anti-gun agenda are barred from attending HELP’s conferences, a policy unthinkable in any scientific organization.

    HELP’s founder and leader Dr. Katherine Christoffel has compared guns to viruses that must be eradicated. (9) The group’s militant advocacy has no place for differing viewpoints on firearms, and apparently neither do the medical organizations which have signed on as HELP members.
    In fact, the AAP has adopted its “gun safety instruction” patient materials from the gun-ban lobby Handgun Control, Inc. (HCI).

    The AAP and Handgun Control, Inc.’s informational wing the Center to Prevent Handgun Violence advise families in their STOP pamphlet, “The safest thing is to not have a gun in your home, especially not a handgun.” (10) And a survey of pediatricians showed 76 percent supported a ban on handguns. (11) Patients who seek objective advice on firearm safety should not look to pediatricians as a group. And any doctor should know that patient counseling based on these materials is politics, not medicine.

    Perhaps the most revealing aspect of organized medicine’s anti-gun bias is its persistent refusal to address the criminology literature on guns. For over 20 years, criminologists have studied firearms, their use and misuse, their risks and benefits. Especially in the last two years prominent researchers have found that firearm ownership is not the scourge that medical activists have claimed it to be. The best and latest research finds that private gun ownership by responsible citizens not only is safe, but protects the individual as well as his community from violent crime. (12)

    One would think that medical firearm researchers would be intensely interested in this scholarship. But so far the editorial boards of the journals of the AAP, AMA, and ACP have neither responded to nor acknowledged it. With their silence these editors have effectively ended whatever credibility they had in firearm research.

    That field of study is apparently useful to them only as a vehicle for the advancement of their political goal of gun prohibition. When the scientific process yields knowledge contrary to that goal, activists either attack its author (13) or ignore it altogether. Such conduct is inexcusable in any area of scientific endeavor. Honest scientists face conflicting data objectively. And honest doctors do not use biased research to give false authority to their negative feelings about guns.

    So how can a patient tell if her doctor’s advice about guns is good preventive medicine or political activism? Patients can assess a doctor’s advice by keeping the following questions in mind:

    1) Does the doctor respect your right to keep guns? Or does he subtly send a message that guns are somehow bad? Moral judgments about the right to self-defense, hunting, or other legitimate uses of guns are not acceptable subjects for a doctor talking to a patient.

    2) Does the doctor quote statistics from the American Academy of Pediatrics or the American Medical Association about the supposed risks of guns in the home?

    Do you see anti-gun posters or pamphlets from these organizations in her office? These materials are based on the “advocacy science” of anti-gun activists like Dr. Arthur Kellermann, much of which was funded by the federal Centers for Disease Control and Prevention (CDC). Congress cut off all the CDC’s 1997 funding for gun research because of the CDC’s anti-gun bias. (14) No doctor who knows firearms would base her advice on this frankly political literature.

    3) Is the doctor familiar with the National Rifle Association’s (NRA) Eddie Eagle gun safety program for children, or other established gun safety education programs? If not, is she interested in learning about them? Unlike the AAP’s Stop program, Eddie Eagle educational materials for children contain no political or moral judgment about guns. This NRA program has been honored by the National Safety Council, the American Legion, and the governments of 19 states. The Eddie Eagle slogan “If you see a gun, Stop, Don’t touch, Leave the area, Tell an adult” was even endorsed by the generally anti-gun California Medical Association (CMA). (15)

    Despite intense publicity for the AAP’s Stop program and similar initiatives, most doctors shy away from scrutinizing their patients’ gun ownership. In a recent study 91 percent of surveyed doctors felt that firearm violence is a public health issue.

    But only 3 percent said they frequently talk to patients about firearms in the home. Two-thirds of the surveyed doctors said they never talk to patients about the subject. (16) This may indicate that although they are generally concerned about firearm injuries, doctors do not see politically motivated patient counseling as appropriate professional conduct.

    In a revealing section, the AAP’s Stop speaker’s kit warns would-be lecturers of “resistant audiences” who may disagree with them on scientific or ideological grounds. One section offers talking points for dealing with these “challenging individuals.” (17) The kit’s authors seem to anticipate their audiences may recognize its political nature.
    Patients do have remedies for the boundary-crossing doctor. In today’s competitive health care market most patients can choose from many doctors.

    Changing doctors is the simplest solution. A written complaint to the health plan’s membership services department can send a powerful message that boundary violations by doctors will not be tolerated. If the problem persists, patients can file a complaint with the doctor’s state licensing board. Medical licensing boards are increasingly aware of the problem of boundary violations. Although state boards have addressed primarily sexual and financial misconduct, the broad principles they have developed to guide doctors in these areas apply to the entire doctor-patient relationship. (18, 19)

    The author cannot advise the reader to take a particular course of action. A patient confronted with physician misconduct must decide for himself which action, if any, to take. But patients should realize they do have choices in dealing with physician boundary violations involving political activism, especially in such personal matters as firearm ownership. And physicians should be aware of the personal risks they take when they bring political activism into the exam room.

  8. I have no problem with my physician asking me about medical issues like smoking, dietary, blood pressure, Etc. However, exercising my Second Amendment right to keep and bear arms is not one of them.

    I believe the ultimate goal is for physicians to report firearms ownership to insurance companies. In turn insurance companies would use the debunked Washington and Cleveland studies to conclude that firearms owners are a hazard and then charge exorbitant premiums or deny coverage completely. Thus, firearms owners would have a choice to surrender their firearms or have affordable insurance. This would be a back door firearms ban.

    The poster’s claim that 4,000 children are killed annually by firearms is misleading. The fact is the majority of those deaths are teenagers engaged in criminal gang activity. According to the CDC the total accidental firearms deaths for ages <1 – 24 was 204 in 2011, which came to less than one per day nationwide and out of a population of 74,181,467. A child stands less than a one in a million chance of being killed from the accidental discharge of firearms.

    http://www.cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_03.pdf
    Table 10

    To reiterate, firearms ownership is not a medical issue, and it is none of my physician’s business if I choose to exercise my Constitutional right to keep and bear arms.

    • I’ve never heard about doctors reporting firearm owners to insurance companies. I’d like to see some kind of proof of that one. But you won’t find any because it’s untrue (and crazy).

      You say docs don’t have a right to ask about guns. Ok. Well, doctors are not required by the Constitution to let you in their office. So don’t come to see me. Because if you do, I will ask about anything I believe to be relevant to your health.

      Here’s a tip: Lie to me. All patients lie. Ask about drugs or alcohol or how many cookies they eat and they will lie. So if you’re offended by a question, either don’t answer or lie. But I will do my best to make sure you leave my office healthier than when you came in.

      You don’t have to like it, but I will exercise my First Amendment right (which comes before Second) to ask you questions that are relevant to personal and public health as determined by physicians, not politicians or lobbyists.

      • “I’d like to see some kind of proof of that one. But you won’t find any because it’s untrue (and crazy).”

        I didn’t say this is happening. I said this is the goal. Like a friend of my wife who had chronic pain was asked by her physician if she had thoughts of “Ending it all.” She said that she occasionally did but would always dismiss them. Her physician reported this to here insurance company and they canceled her policy because she had “Suicidal thoughts.”

        “Ok. Well, doctors are not required by the Constitution to let you in their office.”

        That is a recipe for going bankrupt.

        “But I will do my best to make sure you leave my office healthier than when you came in.”

        My ownership of firearms has no bearing on my health. So, if tell my physician I own firearms what is he/she going to do with information. My physician is an expert on health and medicine but not an expert on firearms or any other kind of safety, and asking such questions will only take up valuable time that he/she could spent on medical matters of mine and other patients.

        “You don’t have to like it, but I will exercise my First Amendment right (which comes before Second) to ask you questions that are relevant to personal and public health…”

        Such questions are not relevant to personal or public health, and my right to privacy trumps such questions.

        • Your right to privacy allows you to, once again, either not see the doctor or not answer the questions. But my right to free speech trumps your right to own a gun.

          As for privacy, that’s one of the problems with this law. The right to privacy would also include taking off your shirt during an exam. Are you going to claim doctors should not be allowed to ask patients to remove clothing? It’s going to get very hard to examine patients when they are claiming all of the Amendments should prevent them from participating in an exam.

          As for your friend…don’t you think an appropriate follow-up question to a suicidal person would be “Do you own a gun?” If that person were in therapy with a psychiatrist, don’t you think that doctor should be allowed to discuss those suicidal thoughts? Or should the doc just ignore it and discuss the Constitution?

          If the physician did disclose information to an insurance company (I would need proof of that beyond the suicidal patient’s word), then that doc violated HIPAA laws and should be held accountable.

          • “The right to privacy would also include taking off your shirt during an exam.”

            No, that is need for a medical examination, but asking if I own a firearm is not.

            I would agree with BHirsh who wrote “Unless firearms are directly related to a medical condition or treatment (tendonitis, for example, or clinical depression), a doctor has no business even discussing guns in a political context, much less accumulating personal gun data in the patient’s medical records.”

            Once again you cannot get around the fact that my ownership or use of firearms has no impact on my medical condition, and the same cannot be said of smoking, overeating, or excessive consumption of alcohol. Therefore, it is none of my physician’s business if I own firearms, and such information does not belong in my medical records.

            Thankfully, my physician has never asked me this unnecessary and intrusive question, and I doubt if he ever will.

      • Re: “I will exercise my First Amendment right”

        Why don’t you exercise it by posting a notice on your office door and website that says, “if you come in for treatment or a consultation, I will ask you if you have any guns”. This way everyone wins – physicians get to exercise their first amendment rights, gun owners who don’t want to be discussing firearms with a physician can take their business elsewhere and patients who do will have an accommodating physician.

        Re: “I’ve never heard about doctors reporting firearm owners to insurance companies. I’d like to see some kind of proof of that one”

        I currently have no proof but the problem is that Obamacare has a mandate to make all medical records electronic which can be easily shared with other organizations and there is no telling who would have access to this information and for what purpose. If you refuse to answer a question about firearms or tell them it’s none of their business it’s not clear how these responses would be noted in your file which will follow you for the rest of your life even if you change doctors. Any answer (or lack of an answer) other than no could serve as a red flag to some person or organization who is reviewing your file as part of a process to determine who has guns. I can envision reviews being conducted to correlate gun ownership with firearm homicides or accidents (a CDC favorite), or to determine how many firearm owners have insurance claims (an insurance company favorite) or to compile a registry of how many guns are in civilian hands and who owns them (a BATF favorite). Lying is of course an option, but I don’t like to lie to anyone including my physician.

      • There is a difference between doing this as a physician and as an agent of the govt. Either way, it’s not your business anymore than if I have a ladder, paint thinner or a gas grill at home. I’d release you from the responsibility as my physician.

      • Also, that doctors asking adults AND kids about firearms ownership, I do believe, is part of the ACA. Even if it is not, the government is pressing doctors to ask the question about firearms ownership, which answer will be entered into our medical records, which WILL become visible and accessible to the government and THAT is kin to a back door gun registration scheme. As then, the government will know who has guns. Call it paranoid if you like, but once the government gets involved and wants to see our records, after requiring doctors to enter that info….No, sir….that is not health care. This is really only a scheme to find out who has guns.

        • How is the govt accessing my medical records? If they have access to those records, they have access to your computer or this website and will be knocking on your door later today. Gun owners need to be a bit less paranoid. You have a right to own a gun. Be proud. Don’t hide it. If someone asks you, say yes. If you’re embarrassed, maybe you shouldn’t own a gun. If a doc asks you about it, it’s only in relation to your health. If a patient is depressed, suicidal, abused, etc., I will ask about guns and knives and drugs, and anything else relevant to helping that patient. Big Brother is not coming into my office or hacking my computer. There is no field to check off for “gun owner.” If you come in with a cold, I’m not going to ask about guns. If you have cancer, I’m not asking about guns. Doctor’s offices are not connected to gun registries. There is no scheme.

          • Re: “How is the govt accessing my medical records? If they have access to those records, they have access to your computer “

            This sounds like it goes beyond my computer:

            An EHR is more than just a computerized version of a paper chart in a provider’s office. It’s a digital record that can provide comprehensive health information about your patients. EHR systems are built to share information with other health care providers and organizations – such as laboratories, specialists, medical imaging facilities, pharmacies, emergency facilities, and school and workplace clinics – so they contain information from all clinicians involved in a patient’s care.

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