Florida's 'Gun-Gag' Law for Doctors Upheld by Appeals Court

July 28, 2014

A Florida law that prohibits physicians from asking patients whether they own a gun unless the question is medically relevant is constitutional after all, a 3-judge panel of a federal appeals court in Atlanta, Georgia, said July 25.

Hailed by the National Rifle Association (NRA) in a news release as "a significant defeat for the gun control lobby," the 2-1 decision voids a decision by a federal district court judge in Miami, Florida, who struck down the law as an infringement on the free-speech rights of physicians. The appellate court panel disagreed, saying the law regulated only clinical practice.

"The act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care," the majority opinion stated. "Any burden the act places on physician speech is...entirely incidental."

Several Florida physicians and the state chapters of the American Academy of Pediatrics (AAP), the American Academy of Family Physicians, and the American College of Physicians sued the state of Florida at the district court level to overturn what they call a "gag law." They said they now intend to ask all 9 active judges of the US Court of Appeals for the Eleventh Circuit to reconsider last week's ruling.

"I was stunned and shocked by it," said Judith Schaechter, MD, interim chair of the Pediatrics Department at the University of Miami Miller School of Medicine, who was one of the original plaintiffs. "It seemed to me a First Amendment issue."

Dr. Schaechter and others who oppose the law maintain they bring up the subject of guns in the exam room — especially with parents of young children — for the sake of discussing safe storage and other gun ownership practices. All they are trying to prevent, they say, is a 3-year-old finding a loaded pistol in a desk drawer. The gun question is on par with asking parents whether they have a swimming pool, a hazard that requires its own precautions.

However, Florida lawmakers passed their law in 2011 believing that a gun control agenda was motivating some physicians to ask about firearms and, in some cases, harass patients in the process. The law they crafted states that "a healthcare practitioner...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." The same restriction applies to recording gun ownership in the medical record. Physicians breaking the law risk discipline by the state medical board.

A loophole states that gun inquiries and record-keeping are permissible 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." However, physicians such as Dr. Schaechter claim that the reference to clinical relevance is too fuzzy to give them any assurance they are complying with the law.

In declaring the law unconstitutional in a permanent injunction in 2012, US District Court Judge Marcia Cooke in Miami said that its vagueness about relevance and other matters contributed to its chilling effect on physicians' speech. She also said that the case, sometimes called "docs versus Glocks," had nothing to do with the right to bear arms.

Florida state officials, including Governor Rick Scott, asked the appellate court in Atlanta to reverse the decision. The NRA filed a friend-of-the-court brief claiming that the law "exhorts doctors to stick to practicing medicine...rather than pushing their own political agendas."

"We Think It's Always Relevant"

In its majority opinion, the appellate court in Atlanta asserted that the clinical relevance exception to gun inquiries is not vague. On the basis of the plain meaning of the word "relevance," it said, physicians should decide on a patient-by-patient basis whether the gun question is apropos. Assuming that the question is relevant for every patient, it noted, would render the law "superfluous."

The physicians who sued the state of Florida continue to view the relevance exception as unclear. "I'm still confused," Dr. Schaechter told Medscape Medical News. "The opinion doesn't ever touch on what I and other pediatricians do. We ask because we think it's always relevant."

The appellate court left the door open for physicians to counsel patients about gun safety with a pamphlet or a brief word of advice without asking specifically whether they own a gun or writing down the answer. It is a reasonable approach, but not ideal, said Thomas McInerny, MD, the immediate past president of the AAP, which opposes the Florida law. A chart notation about a gun in the home, Dr. McInerny told Medscape Medical News, might be critical if a new physician began treating a patient who happened to be a suicidal adolescent.

"It would be helpful to have it in the record," said Dr. McInerny, who called the appellate court ruling "very disappointing."

The 2 to 1 vote of the court's 3-judge panel broke down along party lines. The 2 judges upholding the Florida law were appointed by Republican presidents, whereas the dissenting judge is a Clinton appointment. Opponents of the law hope that the political dice will roll in their favor if the appellate court's full roster of active judges rehears the case. Six of the 9 are Democrat appointees, with 3 named by President Barack Obama. Earlier this month, the Senate approved a fourth Obama nominee, US District Court Judge Julie Carnes, to join the appellate court.

Until the appeals process is exhausted, the lower-court ban of the Florida law will remain in place, noted Louis St. Petery, MD, a pediatric cardiologist in Tallahassee, Florida, and executive vice president of the state's AAP chapter, which was one of the original plaintiffs. When asked whether the plaintiffs would take their free-speech cause to the Supreme Court in the event of another appellate court defeat, Dr. St. Petery told Medscape Medical News that such a decision would depend on the advice of their attorneys.

"It's a premature question right now," he added.

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