Miami , FL - A group of physicians and several medical societies have sued Florida Gov Rick Scott and other state officials in a Miami federal court to overturn a new Florida law forbidding clinicians from asking patients if 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, 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 and future legislation in other states.
"If the court upholds our law, it's free rein everywhere," said Dr Louis St Petery, a pediatric cardiologist in Tallahassee, FL and executive vice president of the Florida chapter of the American Academy of Pediatrics (AAP), one of the plaintiffs in the suit.
The cause of safe gun storage became dear to him, he said, after he and his wife Dr Julia St Petery, also a pediatrician, attended the funeral early in their careers of a two-year-old child who was shot by a five-year-old sibling with a handgun plucked from their parents' bedside drawer.
"It impressed me for life," St Petery said about the shooting. "I thought to myself, 'This is an issue I have to pay attention to.' "No questions, no trust
The suit, filed on June 6, comes four days after Scott signed the law. The measure prohibits written as well as 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, FL, 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 five 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
Three physicians, along with the Florida chapters of the American Academy of Family Physicians (AAFP), the American College of Physicians (ACP), and the AAP, filed the suit, with national organizations also going on record opposing the law.
"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 of 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 have a firearm, and of these, more than 40% store them unlocked. Of this last subset, one-fourth store their guns loaded.
One of the physicians filing the suit, Dr Bernd Wollschlaeger (Ventura Family Health Center, North Miami Beach, FL), 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 lockboxes and the importance of separately storing guns and ammunition."
Besides objecting to what they consider to be infringement upon 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—or for harassment, for that matter.
Two of the physician plaintiffs 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, 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 website 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 website. 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."
In an interview, St Petery said 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," he said. "That's not true."
While 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 St Petery, a father of three 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 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, while 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 doctors 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 are 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."
Heartwire from Medscape © 2011
Cite this: Cardiologist speaks out as physicians fight Florida "gag law" on gun questions - Medscape - Jun 08, 2011.