Posted on Monday 28 July 2014

July 29, 2014

A federal appeals court has reversed a lower court’s ruling that Florida’s law limiting what physicians can discuss with their patients regarding gun ownership violates physicians’ First Amendment right to free speech. The lower court had issued an injunction in June 2012 against enforcing the law, which was signed by Florida Gov. Rick Scott [R] in June 2011.

APA, the AMA, and several other physician organizations had submitted an amicus curiae brief to the U.S. Court of Appeals for the 11th Circuit urging the justices to reject the state’s attempt to revive the law after the lower court decision, pointing out that asking about gun ownership and guns in the home is an important screening tool, like asking about substances of abuse, smoking, and eating habits, for example. But in its July 25 ruling, the appeals court found that the law did not violate free-speech rights but was instead a "legitimate regulation" of medical conduct in the service of providing patients with "good medical care." The majority of the appeals court panel ruled that the law "simply codifies that good medical care does not require inquiry or record keeping regarding firearms when unnecessary to a patient’s care…. Any burden the Act places on physician speech is thus entirely incidental." The justices also said that patients’ right to privacy regarding gun ownership takes precedence over physicians’ right to inquire about this subject.

Paul Appelbaum, M.D., past chair of the APA Committee on Judicial Action and the Dollard Professor of Psychiatry, Medicine, and Law at Columbia University, told Psychiatric News, "The 11th Circuit’s decision upholding Florida’s gag law is troubling because it is one more example of courts and legislatures attempting to control what doctors say to patients. Here, the judges have decided that asking routinely about the presence of guns is contrary to good medical practice and hence can be prohibited by the state. When courts set the standards for clinical interactions rather than leaving that task in medical hands, the inevitable result is harmful to the public’s health."
As a Air Force doctor, I once saw a young Army soldier who was part of a military exercise scheduled to begin the next day. That morning, he was on his usual five mile run, but became winded after only several miles. His exam was negative. When I asked about his combat experience, he said he couldn’t discuss his military service. When I asked about the coming exercise, he said the same thing. I wasn’t cleared to ask. I put him in the hospital where he has a sudden episode of shortness of breath later in the evening and died. At autopsy, he had a large pulmonary embolus [clot]. A post-mortem X-Ray of his legs showed multiple metal fragments from shrapnel received while on a secret mission in [REDACTED]. One of the fragments had eroded into a large vein and led to the clot. I had never been in a situation where I couldn’t take a medical history.

I was obviously devastated and announced that a full security clearance was a condition for my continuing to see patients in the military – and I was serious. It was quickly granted. The people in the military above me were as devastated as I was by this case. Our hospital was not equipped to stop that clot, even if we’d known about it, but we could’ve at least tried to get him somewhere that could’ve given it a shot in the couple of hours we had.

In the situation mentioned in this article, patients already have the right to privacy. So why is this question specifically singled out as an area that should be kept private from a physician? If you live in rural areas of this part of the country, you sort of know the answer. It’s a symbol of something like independence, or personal freedom – something like that – so the evil government can’t confiscate everybodies guns. Of course it’s craziness, but a craziness regularly capitalized on to get votes around here. For a State to pass such a law is part of that craziness and I hope the APA/AMA will join the appeal of this ridiculous law.

I’ll not be practicing in Florida…
    July 29, 2014 | 9:47 PM

    Wow. It’s amazing that you got a clearance so quickly, even under the circumstances. The A.F. has been sued by Georgetown University over declassification— it’s the absolute worst branch of the military when it comes to secrets.

    What a shame that that young man died.

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