Physicians Fight Florida 'Gag Law' on Gun Questions

June 08, 2011

June 8, 2011 — A group of physicians and medical societies has sued Florida Governor Rick Scott and other state officials in a Miami federal court to overturn a new Florida law forbidding clinicians from asking patients whether they own a gun.

The physicians argue that this "gag law" will prevent them from counseling patients about keeping guns unloaded and locked up, which can spare children and adults from shooting deaths, both accidental and otherwise. Supporters of the law such as the National Rifle Association (NRA) counter that it will protect the privacy of gun owners and "keep politics out of the examination room."

The lawsuit seeks a temporary injunction against the new law and a declaration that it violates the plaintiffs' constitutional right to free speech, as well as due process. The outcome of the case could have a bearing on a "don't ask" bill pending in North Carolina, as well as future legislation in other states.

"If the court upholds our law, it's free rein everywhere," said Louis St. Petery, MD, a pediatric cardiologist in Tallahassee, Florida, and executive vice president of the Florida chapter of the American Academy of Pediatrics (AAP), one of the plaintiffs in the suit.

The suit, filed on June 6, comes 4 days after Scott signed the law. The measure prohibits both written and oral inquiries regarding firearms ownership, entering such information into a medical record, "unnecessarily harassing" gun owners, or turning away patients who refuse to answer gun questions.

That last provision speaks to what supposedly prompted the Florida law. In 2007, a pediatrician in Ocala, Florida, told a young mother to find a new physician after she refused to say whether she had a gun in the house, according to a local newspaper. The pediatrician was quoted as saying that his question was merely one part of a general discussion about household safety, and that physicians have a right to drop patients who do not trust them.

An early version of the legislation stipulated that a violation would amount to a third-degree felony punishable by up to 5 years in prison, in addition to a fine as high as $5 million. An amendment scaled down the consequences to possible disciplinary action by the state health department.

Many Patients Lack Knowledge About Gun Safety, Says Suit

The group seeking to overturn the new Florida law consists of family physician Bernd Wollschlaeger, MD; pediatricians Judith Schaechter, MD, and Tommy Schechtman, MD; and the Florida chapters of the American Academy of Family Physicians, the American College of Physicians, and the AAP. Those national organizations, along with the American Osteopathic Association, also have gone on record opposing the law.

The plaintiffs lay out the dangers associated with household firearms that physicians seek to minimize.

"Every year, thousands of Americans are seriously injured or killed when a child finds a gun and accidentally pulls the trigger, an argument between acquaintances or family members spins out of control, or a depressed teenager or adult becomes suicidal," the suit states.

The risk for those tragedies increases when guns are too handy, according to the suit, which asserts that one third of US homes with children younger than age 18 years have a firearm, and of these homes, more than 40% store them unlocked. Of this last subset of homes, one fourth store their guns loaded.

Dr. Wollschlaeger, Dr. Schaechter, and Dr. Schechtman all stated in the suit that in the past, patients have been amenable to guidance on gun safety. Dr. Wollschlaeger, who is himself a gun owner and a concealed weapon permit holder, noted that "many patients and parents are unaware of how to use child safety mechanisms and lock boxes and the importance of separately storing guns and ammunition."

In addition to objecting to what they consider to be infringement on the physician–patient relationship, the plaintiffs criticize the new Florida law as vague. For example, the law makes an exception for questions about firearms if a clinician in good faith believes "that this information is relevant to the patient's medical care or safety, or the safety of others." The plaintiffs complain that the law never defines the criteria for relevance, nor does it define harassment, for that matter.

Both Dr. Schaechter and Dr. Schechtman said they will continue to ask about guns in the home because they consider the subject always relevant, but would refrain from posing follow-up questions when patients respond unfavorably. In contrast, Dr. Wollschlaeger said that as long as the law is on the books, he would never bring up guns for fear a patient will complain to the Florida Board of Medicine.

NRA Sees Gun Ban Agenda

To physicians, talking with patients about gun safety has a noble goal: averting injury or death. The NRA, however, views these discussions in a more sinister light. Its Web site speaks of pediatricians and other physicians "prying into our personal lives." Patients receive an "arrogant berating" if they refuse to answer questions "that violate privacy rights and offend common decency." And "horrified parents" worry that the federal government or private insurers will tap into computerized medical records, discover that they own firearms, and consequently deny them healthcare coverage.

More than anything, a distrustful NRA sees a political agenda in questions about gun ownership. "This is not about safety, but the gun-ban politics of the American Academy of Pediatrics," said NRA board member and former president Marion Hammer in a recent interview posted on the group's Web site. Hammer, also the executive director of a Florida gun rights lobbying group, points to AAP statements of support for banning handguns and assault rifles, as well as the academy's advice that "the best way to keep your children safe from injury or death from guns is to never have a gun in the home."

Dr. St. Petery told Medscape Medical News that the NRA takes those AAP pronouncements out of context. "The NRA says we're out to wipe guns from the face of the earth," said Dr. St. Petery. "That's not true."

Although the scientific evidence points to children being safer when homes are gun-free, he said, pediatricians also accept the reality that many parents own pistols and rifles. "If you have a gun, let's talk about how to store it," said Dr. St. Petery, a father of 3 and a shotgun owner. He added that he has never heard of a pediatrician attempting to convince parents to get rid of their firearms.

The cause of safe gun storage became dear to him, he said, after he and his wife Julia St. Petery, MD, also a pediatrician, attended the funeral early in their careers of a 2-year-old child who was shot by a 5-year-old sibling with a handgun plucked from their parents' bedside drawer.

"It impressed me for life," Dr. St. Petery said about the shooting. "I thought to myself, 'This is an issue I have to pay attention to.' "

The NRA also acknowledges the need to teach people about storing and handling firearms, but contends that this job belongs to parents and private groups like itself. It claims that "voluntary firearms safety training, not government intrusion," is responsible for a dramatic decrease in firearm accidents. According to the NRA, the rate of accidental deaths related to firearms has declined 94% since an all-time high in 1904, whereas the annual number of these accidents has decreased by 80% since 1930.

The new Florida law, Hammer said, does not completely silence physicians on the subject of gun ownership. The "relevance" exception could come into play when physicians fear, for example, that a depressed person may be a danger to himself or others. In addition, the law leaves physicians free to distribute brochures on gun safety and any other public health issue to all their patients, without asking any questions.

The physicians who sued in federal court to overturn the law find little benefit in these prerogatives. Again, they argue that the relevance exception is too vague to give them any assurance that they obeying the law. They also consider it bad medicine to give gun safety advice to every patient without asking questions to personalize their care.

"Such counseling, to be effective, requires a back-and-forth between patient and practitioner," their suit states. "Healthcare practitioners are not effective when they simply lecture their patients or hand them a pamphlet."