gavel-and-stethoscope

By Dr. Timothy Wheeler

Well before Florida’s Amber Ullman incident in the summer of 2010, gun control activist doctors had been poking and prodding a sore spot.  The American Academy of Pediatrics in particular had declared a culture war on gun owners and advanced the battle into exam rooms across America.  They were questioning their patients and their parents about guns in their homes.  Patients were outraged, the people of Florida responded through their legislature, and the parties squared off in a continuing court case, Wollschlaeger v. Governor of Florida . . .

In response to the Ullman episode and others like it, Florida’s legislature passed the Firearm Owners Privacy Act (FOPA) in 2011.  The Florida chapters of the American Academy of Pediatrics, the American Academy of Family Practice, and the American College of Physicians were among a group of plaintiffs who sued to stop enforcement of the law, and FOPA has been in litigation ever since.

Doctors for Responsible Gun Ownership has long opposed the gun prohibition agendas of these three national medical organizations. Most offensive have been their policies of encouraging doctors to probe their patients about guns in their homes and even urge their patients to get rid of their guns.  A 1999 DRGO resource paper, Boundary Violation: Gun Politics in the Doctor’s Office, has long been the definitive description of this practice and its ethical implications.

Now this original work has been updated and enlarged as an amicus curiae brief for the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms. The brief, authored by Colorado attorney Joseph Greenlee, was submitted last week to the 11th Circuit Court in support of FOPA in the case Wollschlaeger v Governor of Florida.  Greenlee skillfully articulates principles never before brought forth yet in the ongoing litigation of Wollschlaeger.

When the proper method (the Gentile balancing test) of judging the constitutionality of professional speech regulation such as FOPA, Florida’s interest in enforcing FOPA decidedly outweighs any First Amendment right of physicians.  This is a recognition that when a doctor is talking professionally to her patient, it’s not the same as a casual conversation or a public expression of opinion.  It’s a special kind of speech whose purpose is only to help the patient.

Since doctors have a special duty to their patients, they are held to a higher standard of conduct. So what they may say at a cocktail party or other public forum may not be allowed in the privacy of the doctor-patient relationship.  That is why, contrary to the bitter complaints of some anti-gun rights physicians that they have been “gagged” by FOPA, the state is allowed to limit doctors’ speech when it would hurt their patients instead of help them.

Mr. Greenlee also reminds us (and the court) that:

The Act [FOPA] does not prevent physicians from speaking with patients about firearms. Physicians can give patients any advice or information regarding firearms they desire. In fact, physicians can treat and advise every patient as if they were firearm owners, or potential firearm owners. Further, if a physician in good faith believes that a patient’s firearm ownership is relevant, the physician may inquire about it. If a patient wants to talk about firearm ownership, the physician may freely engage in that discussion.

With simple but brilliant logic the brief concludes this critical point:

Thus, a physician is restricted only from inquiring or keeping records about firearm ownership when the physician believes the information is irrelevant to the patient’s care…Surely a physician does not have a compelling interest in asking about or recording private information that is unrelated to the patient’s care—a less compelling interest is difficult to imagine.

The next step in showing that the state of Florida is justified in stopping doctors from advancing a political agenda of gun control is proving that all the states have a “compelling interest” in how professions are practiced.  This long-established principle assures patient protection from incompetent or unscrupulous physicians.  Greenlee lays out the history of high court decisions supporting this norm and shows how regulating professional conduct must include regulating professional speech.

Section III, Part B will be familiar to readers of this website.  It documents the sordid history of gun control activism in organized medicine. It includes discussion of the anti-gun policies and practices of major medical organizations, three of whose Florida chapters are suing to stop enforcement of FOPA.

We have documented many times the gun control advocacy of the American Academy of Pediatrics, but this brief also provides details on the wish of the American Academy of Family Physicians (AAFP) to ban most guns that are popular in the 21st century:

The AAFP has official policy stating, “The Academy opposes private ownership of weapons designed primarily to fire multiple (greater than 10) rounds quickly.” AAFP, Firearms and Safety Issues, (last visited Mar. 20, 2016). This deliberate policy includes most pistols designed in the last quarter century and virtually all rifles designed and produced after the Korean War.

Finally, Greenlee addresses what is perhaps the most important issue of the brief, which is the unequal relationship of the doctor to the patient:

Another reason states have a compelling interest in regulating physician speech is the dramatic imbalance of power inherent to the relationship between a highly trained physician and a relatively uninformed and impuissant [i.e. powerless] layperson.

Cultural expectations, the responsibility and specialized knowledge of the doctor, and the compromised attitude of a sometimes frightened and sick patient all combine to make the doctor-patient relationship unbalanced.  Both culture and law recognize this fact and provide protection for the patient by holding the physician to a higher standard of conduct.  That standard is violated when a doctor abuses her position of relative power to push a political agenda of gun control on her patient.

The meticulous documentation of the ethical issues involved, the medical establishment’s anti-gun rights agenda (that establishment including the plaintiffs themselves), and the supporting legal citations are joined together in a formal statement that is now the go-to reference.  This brief adds to and enlarges on our 1999 article with the perspective of legal authority.  It now becomes part of DRGO’s permanent file of resources available to all of our readers.

The U.S. Court of Appeals for the 11th Circuit will hear the latest arguments in the case of Wollschlaeger v. Governor of Florida on June 21.  The SAF-CCRKBA amicus brief will show them a side of the case that is vital to understanding why Florida’s Firearm Owners’ Privacy Act should be upheld.

Timothy Wheeler, MD is director of Doctors for Responsible Gun Ownership, a project of the Second Amendment Foundation.

This post originally appeared at Doctors for Responsible Gun Ownership and is reprinted here with permission. 

28 Responses to Boundary Violation: Gun Politics in Doctors’ Offices in 2016

  1. I can kind of give them the benefit of the doubt if they were concerned about “accidents” in the home. They should give recommendations about securing firearms from children and probably even have Eddie Eagle literature for hand out.

    “The Academy opposes private ownership of weapons designed primarily to fire multiple (greater than 10) rounds quickly.”

    Can someone at the Academy please explain what capacity has to do with an negligent discharge. Or do they have other concerns about firearms.

    • My understanding is that the academy opposes gun ownership in general. Which is interesting considering that they don’t oppose pools or swimming lessons…

      • Which is interesting considering that they don’t oppose pools or swimming lessons … or physician/nurse malpractice which kills at least 10 times more people annually than firearms (including suicides with firearms).

        There. Fixed that for you.

        • For every American murdered by a firearm, 25 are murdered by careless, lazy and incompetent health practitioners. Annually, in the US there are 10,000 Gun Murders and 250,000 Malpractice Murders,

          And as far as firearm suicides are concerned, many are terminally ill patients in great pain because their docs don’t want them to get addicted to painkillers.

          Physicians need to get their own house in order first.

    • The AAP affirms that the most effective measure to prevent suicide, homicide, and unintentional firearm-related injuries to children and adolescents is the absence of guns from homes and communities. Although the US Supreme Court ruling in the case of McDonald v City of Chicago struck down comprehensive local and statewide firearm bans, pediatricians should continue to advocate for the strongest possible legislative and regulatory approaches to prevent firearm injuries and deaths.

      In other words: ‘gimmie that kid; you’ll shoot your eye out.’

      • 50 kids killed by firearms accidents a year compared to how many kids drowning inswimming pools? I think I’ll keep my guns and skip the pool.

      • They can affirm what they like, but suicide rates are constant from culture to culture.
        Trains and bridges are far more final and lethal than opioid overdoses and quicker than drinking pesticides or hanging oneself from a low branch.
        But people still chose those methods the world over.

    • Exactly, and this is one of the reasons your freedom to choose your own doctor is being taken away from you by the state by means of HMOs, Obamacare, etc.

      You really need to start listening to your betters and doing what you are told, citizen.

  2. So, if a doctor who is not certified as a firearms instructor gives advice on gun handling, can the patient sue him/her into oblivion if that advice is missing one or more key tenants of gun safety and the patient hurts themselves with a firearm? I would argue that is does, and I think a court would agree. Would their malpractice insurance cover their legal costs? I doubt that.

  3. ^ I am with Stoopid1 on this. You and I are more likely to stand up to a person in authority including a physician. It is so insidious for a Pediatrician to be asking this type of question of a child clearly they should enjoined from asking this kind of question!

  4. You will all be pleased to know that my Anesthesia department is a bunch of gun enthusiasts.
    Most of our surgeons seem to also be gun nuts.
    I have introduced several of our nurses and techs to the shooting sports and some have become pretty obsessive themselves
    The journal Medscape has done several articles on this topic.
    The great majority of physicians say that they have no special training or expertise in gun safety even the ones who are pro-gun.
    Many commenters said that other common household items are far more dangerous and they had no time to warn people about ladders and pools and seat belts, much less guns.
    The consensus among doctors was that the only time to ask about guns was if the patient said something about being suicidal or homicidal.
    Otherwise most thought that guns were not a medical public health problem.

  5. I am a CDL holder and went for a drug test yesterday at a local Concentra facility; I was very surprised to see a sign right by the receptionists desk that said no concealed weapons… a pistol with a red circle with a line thru it…
    it is a recent sign as I had to go there back in November for an injury and the sign was not there… if it were my money and not my employers I’d say F- em but since I cannot pick where I go for tests and or/physicals ….

  6. Doctors, and the medical profession in general, will one have much to answer for as they continue to administer products while knowing these products are causing egregious harm to the public. Many doctors today keep their mouths shut to protect their careers and their their job security above the interests of their patients.

  7. The solution to this, like anyting else, is more freedom. Specifically, freedom to contract with any doctor one may feel like, from anywhere, regardless of arbitrary “accreditation.” Enshrining “we are holier than thou, but that’s OK, because the ambulance chasers next to me (who are also holier than thou, btw), have made us promise to be nice and use lube” nonsense, is no more than that: Nonsense.

    Take away the “more equal” status of “professions” whose membership tends to come from the well connected side of the tracks, and all these “problems” will simply solve themselves.

  8. Wisconsin: At their last check up my wife noticed our childrens record at the pediatrician has a note “guns in the home in locked cabinet”. Neither of us ever recall such a question and both of us would have said none of your business…our kids don’t recall either (14 and 10 currently). This kind of meddling pisses me off.

  9. This law shoots gun owners in the foot. Banning any speech by anyone, anytime is generally a bad idea except in the most extreme cases.

    Why do gun owners need to bear arms? Because we want to and because it’s our right under the 2nd amendment should be a perfectly acceptable and legal reason.

    Why do doctors need to ask about guns? Because they want to and because it’s their right under the 1st amendment should also be a perfectly acceptable and legal reason.

    Bolstering the 2nd amendment by tearing down the 1st is a bad idea. If you don’t like a doctor asking about guns, go to a different doctor. Now, a law that forbids insurance companies and medicaid from mandating asking about guns AND a law that protects doctors from liability if they DO NOT inquire about guns may make more sense.

    • I think you missed the point of both the article AND the law. (but don’t feel bad, the AAP and the media have consciously been trying to hide that fact) The law does NOT prohibit docs from discussing or even asking about guns with their patients. It only prohibits them from RECORDING information about your firearms in your medical records.

      • If it was only recording, I wouldn’t have a problem. The law also prohibits inquiry unless there is a good faith reason to believe it’s relevant. How would you like your gun rights to be subject to a good faith test by anyone?

  10. Doctors beware….impuissant I’m not.

    I’ve don’t know of a more incompetent profession that the medical profession. They used to be such pompous a**es and covered for each other so much, it was hard to hold them responsible for their mistakes (even with an army of malpractice lawyers).

    Now, thanks to ObummerCare they are so overworked, they can’t keep anything straight.

    The last time I looked, medical errors were responsible for 17% of all deaths in the U.S., the third leading cause of death.

    If there is a public health crisis that needs more attention, it isn’t firearms (<1% of deaths), it is medical errors.

  11. Does the American Academy of Pediatrics realize that the unintended consequence of their idiotic anti-gun policy is to encourage patients to lie to their doctors?

    Maybe because I live in small-town Idaho, my doctor and I usually end up discussing our preferred elk rifles.

  12. One thing to keep in mind is that many of the various physician lobby groups do NOT represent more than a small minority of its supposed member group.

    One article out of a peer reviewed journal stated 75% of physicians were members of the AMA as recent as the 1950’s. As of 2011 it hovered around 15% (and I imagine it’s lower post ACA).

    Additionally, around 1/3 of that 15% is made of members who pay an annual membership of only around $50. This is typically medical students and residents. I know my wife (a resident) is only counted as an AMA member because her residency program automatically pays the fees as a small “benefit.”

    So the above is TLDR for you, only 10% of physicians are members of AMA. It doesn’t respect their interests at all.

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