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Docs Vs. Glocks

Started By: TonyFrancis, MD, Orthopaedic Surgery, 12:31AM Jul 28, 2014

If I were to go to a doctor and be asked about my ownership of firearms, the temptation to answer "No" might prove overwhelming.  Although I might have an urge to say, "Feeling lucky?  Break into my house at night and find out!" On second thought, that might not be prudent.  Probably should avoid giving the appearance of a wiseacre.  I might be denied care.  That's what an Ocala Florida couple allege happened when they refused to answer a doctor's question about gun ownership.  The friendly doc was in no mood for secrecy.  He dismissed them from his practice.  They didn't go quietly into the night.  Instead their story was the impetus for a Florida law called the Firearms Owner's Privacy  Act of 2011. It restricts what doctors are allowed to ask concerning firearms.  Mainly the questions should be appropriate for the situation.  (Contained infra.)

But one wonders why doctors have a need to know about firearms in the house.  And why an otherwise pleasant doctor would get into enough of  a snit to fire patients who refused to answer.  When I was practicing orthopedics and ER medicine, I can't think of a situation where it ever came up.  I had a patient who was a biker who shot himself in the palm of his hand, neatly removing the central portions of his right third and fourth metacarpals.  He had been cleaning his .45 cal pistol.  I didn't think to ask him if he owned any firearms.   It never seemed to come up treating fractures, spinal stenosis, radiculopathies and arthritic joints.  Nor did it seem relevant in the ER.  Even if someone came in having been shot.  They usually weren't forthcoming telling who the perpetrator was.  So why would they tell the truth about anything else?  Maybe I was remiss. 

It seems modern doctors have a pressing need to know whether there are guns in the house.  Even if they are treating your sore throat, or ordering a mammogram.  Why?  I don't have a clue. It is Family Practice and Pediatricians who are on the cutting edge. Of course, they sued to have the Florida law overturned on a theory that it violated First Amendment free speech rights.  They won at the trial level.  But on appeal, the Eleventh Circuit ruled the Florida law was within the discretion of Florida to police the practice of medicine.  The ruling was 2-1.  People seem shocked at the result. But I don't know why. 

The American Academy of Pediatrics has gone on record backing aggressive federal legislation for gun control.  So they didn't come into the litigation with clean hands.  If professional organizations venture into the area of political activism there is a real risk the status of the organization will be damaged.  We might expect the pediatricians to legitimately argue about the proper use of Amoxicillin in otitis media.  Or when to order skull x-rays in kids with head injuries.  But guns?  What's the point?  There is no evidence asking about gun ownership leads to any useful outcome.  I suppose there is some benefit from telling patients to lock their guns up or get rid of them if they have small children.  But that can be given as a generic warning. Maybe in potential suicides.  It is the actual recording in the electronic medical record that is a cause of concern. Of course that information is going straight to the IRS, and then, who knows where.  So it can be a backdoor way to get gun registration. 

One wonders why the pediatricians and family practice docs don't ask what the family income is.  Or if there are males who are not the biological father of Mom's kids cohabiting.  Or if there is illicit drug use in the house.  Or if there is an encouragement for the kids to study and excel at school.  Or if there is an encyclopedia in the house, and the kids are encouraged to read it.  Those questions actually have some ability to predict who will do well later on in society. 

The American Academy of Pediatrics foray into political activism:

Federal Policies to Keep Children Safe

AAP's Recommendations to Congress and the White House

Since the tragic shootings at Sandy Hook Elementary School in Newtown, Conn. that took the lives of twenty students and six educators, the Academy has been engaged in a thoughtful, organization-wide response and call to action to assure the future safety and protection of our nation’s children.

Academy leadership and staff are working closely with partner organizations to raise the voice of the nation's pediatricians on Capitol Hill and among state legislatures to ensure that appropriate legislation is developed to promote children's safety.

Specifically, the Academy is advocating to Congress and the Adminisration the following priorities (for a comprehensive overview, read this summary ):

•Firearm safety: Enact stronger gun laws, including an effective assault weapons ban; mandatory background checks on all firearm purchases; and a ban on high-capacity ammunition magazines.

•Prevention and public health: Allow federal agencies to conduct research on the causes and prevention of gun violence, and stand by the President's clarification that the Affordable Care Act does not prohibit doctors from asking their patients about guns in the home.

•Access to mental health services: Improve the identification of mental illnesses through increased screening, addressing inadequate insurance coverage and high out-of-pocket costs that create barriers to access, strengthening the overall quality of mental health access, and expanding the Medicaid reimbursement policy to include mental health and developmental services.

•Reducing gun violence in the media and educating children: Develop quality, violence-free programming and constructive dialogue among child health and education advocates, the Federal Communications Commission, and the television and motion picture industries, as well as toy, video game, and other software manufactures and designers, to reduce the romanticization of guns in the popular media as a means of resolving conflict.

Below are additional resources oulining the Academy's position and the President's recommendations:

•A comprehensive summary of AAP's recommendations as outlined above

•AAP testimony for the record to the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rightsat a hearing on Stand Your Ground Laws

•AAP-organized letter from a coalition of health professional, public health, and child advocacy groups to Congressional appropriators on the importance of funding gun violence prevention research.

•AAP-organized letter from pediatric organizations to Congressional appropriators on the importance of funding gun violence prevention research.

•A one-page fact sheet outlining AAP’s current gun violence prevention priorities.

•A press statement expressing disappointment in the Senate's failure to pass gun safety legislation

•A letter from AAP and 21 public health and advocacy organizations urging the Senate to pass strong gun safety legislation

•White House website on the President's 23 executive order recommendations and priorities for Congress

•AAP's endorsement letter and press release supporting Sen. Dianne Feinstein's (D-Calif.) assault weapons ban

•AAP endorsement letters for companion House and Senate bills to address mental health in schools

•AAP’s practice guide, Bright Futures, which urges pediatricians to counsel parents about gun safety

•Letter from AAP and 13 pediatric organizations to Vice President Biden in support of policies to protect children from gun violence and to allow federal funding for gun safety research

•Thank you letter from AAP to the U.S. Department of Health and Human Services following the participation of AAP President Thomas K. McInerny, MD, FAAP, in a Task Force on Gun Violence Prevention meeting in Washington, DC

•Letter and press statement from Dr. McInerny to President Obama expressing the Academy's support for advancing meaningful federal action to protect children in the wake of the Sandy Hook tragedy

•AAP policy statements on firearm safety, media violence, and mental health

•AAP online resource page: "How Pediatricians Can Advocates for Children’s Safety in Their Communities”

• resource page, including information on how to talk to children about disastrous events

The 2013 Florida Statute

790.338 Medical privacy concerning firearms; prohibitions; penalties; exceptions.—

(1) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 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.

(3) Any emergency medical technician or paramedic acting under the supervision of an emergency medical services medical director under chapter 401 may make an inquiry concerning the possession or presence of a firearm if he or she, in good faith, believes that information regarding the possession of a firearm by the patient or the presence of a firearm in the home or domicile of a patient or a patient’s family member is necessary to treat a patient during the course and scope of a medical emergency or that the presence or possession of a firearm would pose an imminent danger or threat to the patient or others.

(4) A patient may decline to answer or provide any information regarding ownership of a firearm by the patient or a family member of the patient, or the presence of a firearm in the domicile of the patient or a family member of the patient. A patient’s decision not to answer a question relating to the presence or ownership of a firearm does not alter existing law regarding a physician’s authorization to choose his or her patients.

(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.

(7) An insurer issuing any type of insurance policy pursuant to chapter 627 may not deny coverage, increase any premium, or otherwise discriminate against any insured or applicant for insurance on the basis of or upon reliance upon the lawful ownership or possession of a firearm or ammunition or the lawful use or storage of a firearm or ammunition. Nothing herein shall prevent an insurer from considering the fair market value of firearms or ammunition in the setting of premiums for scheduled personal property coverage.

(8) Violations of the provisions of subsections (1)-(4) constitute grounds for disciplinary action under ss. 456.072(2) and 395.1055.

History.—s. 1, ch. 2011-112.

Times Picayune (7/25/14

TALLAHASSEE, Fla. -- A Florida law restricting what doctors can tell patients about gun ownership was deemed to be constitutional Friday by a federal appeals court, which said it legitimately regulates professional conduct and doesn't violate the doctors' First Amendment free speech rights.

The ruling by the 11th U.S. Circuit Court of Appeals in Atlanta overturned a previous decision that had declared the law unconstitutional. An injunction blocking enforcement of the law is still in effect, however.

The 2011 law, which had become popularly known as "Docs vs. Glocks," was challenged by organizations representing 11,000 state health providers, including the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians.

Doctors who break the law could potentially be fined and lose their licenses.

By a 2-1 decision, the appeals court upheld the law as a protection of patient privacy rights and said that the limits imposed by it were "incidental."

"The act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care," states the opinion written by U.S. Circuit Judge Gerald Tjoflat.

In a lengthy dissent, U.S. Circuit Judge Charles Wilson called the law an infringement of First Amendment rights.

"The act prohibits or significantly chills doctors from expressing their views and providing information to patients about one topic, and one topic only, firearms," Wilson wrote. "Regardless of whether we agreed with the message conveyed by doctors to patients about firearms, I think it is perfectly clear that doctors have a First Amendment right to convey that message."

Florida's Republican-controlled Legislature adopted the Firearm Owners' Privacy Act after an Ocala couple complained that a doctor had asked them about guns. The couple say they refused to answer and the physician refused to see them again.

The measure signed into law by Gov. Rick Scott prohibited doctors from asking patients about their ownership or recording that information in medical records unless it was medically necessary.

Marion Hammer, a National Rifle Association lobbyist in Florida and former president of the national organization, said that the judges "nailed it" and understood the intent of the legislation that was pushed by the NRA.

"The intent is to protect the privacy of firearms owners and to stop the political interrogation of gun owners and the children of gun owners when they seek medical care," Hammer said in an email.

A main attorney who filed the appeal said the decision would cause Florida physicians to curb their own speech on safe gun ownership.

"We strongly disagree with the panel majority's holding that Florida doctors have no First Amendment right to ask patients about potential dangers in their lives, including the presence of guns in the home," Douglas H. Hallward-Driemeier said in an emailed statement.

The ruling, if it stands, "will prevent patients from receiving critical truthful information that protects not only themselves but their families and others," he said.

He said he and his clients would decide their next legal move.

In 2012, U.S. District Judge Marcia Cooke declared the legislation unconstitutional as an impermissible restriction on free speech. She also blocked the state from enforcing the law. Hallward-Driemeier said that the injunction remains in place until any request for a rehearing before the appeals court is resolved.

Howard Simon, executive director of the ACLU of Florida, was surprised with Friday's ruling. Simon's organization had filed legal briefs in support of the legal challenge.

"We are astounded that a court would allow the legislature to override the free speech rights of doctors and medical personnel," Simon said in a statement. "It's a sad day when judges tell doctors what is in the best interest of their patients."

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