It's Not a Doctor's Duty to Discuss Gun Safety With Patients

Greg A. Hood, MD

Disclosures

April 01, 2014

In This Article

Can Doctors Get Into Legal Trouble for Discussing Gun Safety?

Are there legal ramifications for physicians who instruct in firearm use (such as to store ammunition separately from firearms) should the physician's advice lead to a failure of response to a life-threatening or criminal act?

Firearms have the potential to be useful. Firearms are force equalizers, such as for the 88-year-old patient of mine who held off 3 twentysomething miscreants who intended to break into her house, rob her, and likely do her serious personal harm; or the more recent example of the 11-year-old girl who saved her brother from a cougar.[5]

The US Supreme Court ruled in 1981, and again in 2005,[6,7] that police do not have any constitutional duty to protect a person from harm, even when in possession of a court-issued protective order. Given these rulings and the public sentiment, supported by FBI data, that home invasions and other violent crimes are on the rise,[8] one may face the potential that advice contrary to preparedness for such a possibility could open oneself to potential liability.

Last year, a physician colleague asked me whether physicians counseling about firearm ownership would constitute engaging in an area of counseling without certification or formal training (as residencies historically have not provided such training). The concern he raised was whether this would create a potential liability for the physician, in the event that harm befell a patient that might have been prevented had the patient not followed the physician's advice. He was concerned that some medical liability carriers would not acknowledge this advice delivery as being within the scope of training/practice.

The scenario he questioned was: A patient is told by his or her doctor to remove a firearm from the house or secure it so that it is not accessible. This patient does so and consequently has no firearm available at the time when the patient is then the victim of a home invasion.

The patient has time to call 911, but the police don't arrive until after the patient is raped, assaulted, or murdered. The survivor, or surviving family, then sues the physician on the grounds that the patient would have had the opportunity and means to defend himself/herself had the physician not directed the patient otherwise and that, consequently, liability for the consequences of the physician's words must be adjudicated.

I have discussed this with one medical liability carrier. Absent existing case law, their initial position was that the applicability of medical liability insurance in adjudicating the claim would depend on the wording of the suit. If the claimant files this against one's professional judgment, the medical liability insurance would, at least initially, participate in defense of the claim. Complete and continuous coverage throughout litigation, however, could not be assumed.

To this point, Dr. Paola wrote about the potential legal liability to which physicians who engage in this counseling may expose themselves.[9] In particular, he has posited that "plausible arguments can be made against the hypothetical physician engaged in firearm counseling as described. Conversely, physicians not engaging in discussions of gun safety face substantially lower liability risks."

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