The United States Court of Appeals for the Eleventh Circuit has handed down a ruling that vacated an injunction of the Florida law barring physicians from discussing guns in their homes when it is not related to medical care. The lower court found the law violative of the first amendment, but the Eleventh Circuit found that it does not violate free speech. I have always found this law highly troubling on both free speech grounds as well as policy grounds. Just as I have long objected to legislatures interfering with teachers, I have the same reservations about their micromanaging doctors. The law is commonly referred to as “Docs for Glocks.”
On June 2, 2011, Florida Governor Rick Scott signed Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended the Florida Patient’s Bill of Rights and Responsibilities. The Act provides follows:
(1) A health care practitioner licensed under chapter 456 [of the Florida Statutes] or a health care facility licensed under chapter 395 [of the Florida Statutes] may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant to the patient’s medical care or safety, or the safety of others.
(2) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient’s right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others, may make such a verbal or written inquiry. . . .
(5) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 may not discriminate against a patient based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition.
(6) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient’s legal right to own or possess a firearm and should refrain from unnecessarily harassing a patient about firearm ownership during an examination. . . .
Fla. Stat. § 790.338.
Putting aside the intrusion into doctor and patient discussions, the law seems to be dangerously vague on provisions like “may not intentionally enter any disclosed information concerning firearm ownership into the patient’s medical record if the practitioner knows that such information is not relevant.”
The District Court concluded that the State acted on the basis of purely anecdotal information and provided no evidence that discrimination or harassment based on firearm ownership is pervasive and lacks a legitimate or compelling interest in protecting its citizens “from barriers to the receipt of medical care arising from [such] discrimination or harassment.”
In the 2-1 panel decision, the majority emphasizes the need of the law to protect the privacy of patients who are faced with a more powerful authority figure in medical examinations:
The Act seeks to protect patients’ privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms. The Act recognizes that when a patient enters a physician’s examination room, the patient is in a position of relative powerlessness. The patient must place his or her trust in the physician’s guidance, and submit to the physician’s authority. In order to protect patients, physicians have for millennia been subject to codes of conduct that define the practice of good medicine and affirm the responsibility physicians bear. In keeping with these traditional codes of conduct—which almost universally mandate respect for patient privacy—the Act simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.
As such, we find that the Act is a legitimate regulation of professional conduct.
Judge Tjoflat draws a line that may be difficult for doctors to discern: “Any burden the Act places on physician speech is thus entirely incidental. Plaintiffs remain free—as physicians always have been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful.” The panel later explains:
The State argues that physicians may engage in such conduct when it is relevant to patients’ care, and even when not relevant, the Act merely suggests that physicians “should refrain” from inquiring as to firearm ownership. § 790.338(2). Such hortatory language, the State argues, does not constitute a mandate that physicians must not inquire. Thus, the State argues, because the Act does not in fact actually prohibit the conduct Plaintiffs wish to engage in, Plaintiffs lack standing to challenge the Act because they have not demonstrated injury-in-fact. Moreover, the State argues, we have an obligation to read the Act as a mere recommendation that physicians refrain from irrelevant inquiry and record-keeping about firearms, in order to construe the Act as valid.
Judge Wilson dissents, stating that “Simply put, the Act is a gag order that prevents doctors from even asking the first question in a conversation about firearms. The Act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic and one topic only, firearms.”
I would be surprised if this case was not appealed for en banc review and then was appealed to the Supreme Court. This is a very interesting issue upon which people of good faith can certainly disagree. For those of us associated with the free speech community, the law obviously raises serious concerns about its vagueness and its chilling effect. This would make for a fascinating appeal and we will try to follow it. It would seem odd to drop the appeal with a split panel on such important questions.
Here is the ruling: WOLLSCHLAEGER
Darren:
I believe that the issues are different. My understanding is that reparative therapy is banned because it’s bogus. Many states no longer license naturopaths as another example. But sloppy gun security by parents kills a couple thousand kids each year in this country, making it a perfectly legitimate topic for discussion by pediatricians. The NRA has whipped much of the public into a paranoid frenzy, however, a boon for the arms industry. Frankly, I’m surprised that gunshops don’t offer free boxes of Depends as promotional tools.
Mike,
How would this be different from preventing those counseling people using homosexual conversion therapy? The one we had an article here about some time ago. Was that related to first amendment grounds and the legislature banned such a practice? Or are the two different issues?
Just curious.
People still don’t get it. A physician should be able to talk to a patient about anything he or she damn well pleases.
Mike – you don’t get it. A doctor has between 10-15 minutes with each patient. Why should he/she be taking the time to talk to me about my gun collection? Although one of my doctors and I keep up on the latest places to eat.
Torn issue.
On one hand is free speech on the other is the collecting of data that may in turn lead towards the violation of peoples 2nd Amendment as well as 4th 5th etc.
Imo Doctors should NOT be asking about guns in the house unless there is a clear and present threat of harming others. Suicide is irrelevant and only leads down a very slippery slope. People can kill themselves in any number of ways.
I do not favor limiting Free Speech nor do I favor the collection of data that has a very dangerous and Orwellian quality to it. There must be a middle ground.
if forced to make a choice I would side with preventing Doctors from collecting or entering irrelevant data that may be later used by a nefarious government.
Mike – how many pediatricians warn mothers about bleach, etc.? Most of that advice comes from their mothers, mothers-in-law, friends, etc. There are any number of magazines available for expectant mothers.
Kids can’t drink bleach???
Nick – I thought Clorox was the perfect chaser for Ajax Cleaners.
Paul, At the core of much of this is provinciality. I grew up in the northeast where there are not many hunters and gun owners. When I moved to the Midwest I was a bit taken aback. But, I worked w/ some guys who were big time pheasant and quail hunters. I NEVER missed a game dinner. So, I would sometimes go out hunting w/ them. I could get into bird hunting w/ a dog. But, what it did was show me another culture. Too many people are so set in their ways they will simply not acknowledge or even consider another person’s way of life.
I see that most people are not familiar with the history of this ridiculous legislation. Let’s put it this way. If Marion Hammer worked for the manufacturer of Clorox, the Florida legislature would have already passed a law prohibiting pediatricians from advising moms to keep bleach where kids can’t get at it.
When the Doctor starts cutting me a check for the visit then they can ask me any question they want.
Randy Newman has it right. Check this song out.
“Back On My Feet Again”
Doctor, let me tell you something about myself
I’m a college man and I’m very wealthy
I’ve got no time to trifle with trash like you
Cause I must be ’bout my business
My brother’s a machinist in a textile mill
And he makes more money than you ever will
He just got married to a Polish girl
With a space between her teeth
My sister’s a dancer up in Baltimore
At a small cafe on Main
But she ran off with a Negro from the Eastern Shore
Doctor, she didn’t even know his name
Get me back on my feet again
Back on my feet again
Open the door and set me free
Get me back on my feet again
He took her down to Mobile in a railroad train
He said, “Driver, take me to the Hotel Paree.”
He went into the washroom
Washed his face and hands
Doctor, when he come out he was white as you and me
He said, “Girl, I ain’t a Negro I’m a millionaire
As you can plainly see
So many women were after my money
But I’m proud to say you were only after me
“I’m going to teach you to play polo and how to water ski
And you won’t have to dance no more
And I no longer have to pretend to be
A Negro from the Eastern Shore.”
Get me back on my feet again
Back on my feet again
Open the door and set me free
Get me back on my feet again
Doctor, doctor, what you say
How ’bout letting me out today?
Ain’t no reason for me to stay
Everybody’s so far away
Get me back on my feet again
Back on my feet again
Open the door and set me free
Get me back on my feet again
Friggin Florida. Beldar posted that this is a Second Amendment issue and I think it is but it is also a privacy issue with several aspects of the Constitution involved. Me and my doctor have a right of privacy and no one should get to look at my records. If I tell him I am gonna shoot the Pope then he should stay out of the line of shot. That is it. If he rats on me then he is not a doctor. Nor an Indian Chief.
BarkinDog – if you are actually planning to kill the Pope, you are a danger to others and the doctor is required by law to report you.
“Presence of firearms in a house is ALWAYS RELEVANT TO SAFETY of the patient. Case closed.”
LOL!
So are knives, forks, glassware, knitting needles, electrical outlets, hot plates, furnaces, curling irons, ant spray, 2nd floor screens, darts, baseballs, etc.
But, Rabbit, the gun nuts don’t want that fact publicized. That’s why conservatives have barred the CDC from even studying the relationship of guns in a home with violence and death. Truth is the NRA’s enemy as it is for all things conservatives advocate.
If I was a doctor in Florida I would post two signs in both Spanish and English. The first one recites the statute. The second one says: Don’t Ask Me I Don’t Give A Damn, Next Stop Is Viet Nam. And its one, two, three what are we fightin for. etc with music.
If I was a patient in Florida then I would go into my doctor interview with a button on my chest which says: Guns Don’t Kill People. Doctors Do.
Presence of firearms in a house is ALWAYS RELEVANT TO SAFETY of the patient. Case closed.
P. Rabbit – the presence of cleaning fluids of any kind is important to the safety of the patient.
Absent an actual case of a doctor reporting a family to CPS because they had answered the doctors question in the affirmative, I’m not sure why this is an issue?
I’m with Nick, refuse to answer & request that the information not be recorded.
Don’t you get it? Government can compel doctors to show their records for something bogus like antiterrorism.
Nick – my family doctor was the one who took me out to teach me how to shoot after my father died. All 12 year olds in Montana are expected to be able to accurately shoot a .22.
Darren, Guns are a known risk factor for children w/ uninformed parents. My doc said that’s why they ask, and follow up questions about safety measure taken. I see both sides of this but personally, I’m ok w/ the question. And as I said earlier, don’t answer the question. Regarding the info being part of the medical records. Simply say you do not want the information written down in the record.
Quite right. The 2nd Amendment is crucial to preserve America from tyranny. Nothing to do with a doctor’s free speech.
The central point is that it should not be the function of government to legislate concerning the relevancy of private communications-period. If my doctor, my lawyer, my neighbor, my best friend, my auto mechanic or my wife (well, maybe not my wife) asks me a question I do not wish to answer, I am under no obligation to do so.