Doctor Big Brother

The Eleventh Circuit court of appeals, in an unusual decision, has decided to hear the case of Dr. Bernd Wollschlaeger, et al. v. Governor State of Florida, et al. in the matter of the Privacy of Firearms Owners Act. The Act provided that doctors and other health care professionals could not use their professional position of power in order to collect private information from firearms owners, and potentially make that information available to third parties and numerous government agencies . . .

The Act had been struck down by the district court, then upheld in three different rulings by the three judge panel of the 11th Circuit. From

The 11th U.S. Circuit Court of Appeals scheduled the arguments for June 21 in Atlanta, according to a document posted on the court’s website.

A three-judge panel has issued three rulings that upheld the law, with the most-recent ruling in December.

But the full appeals court then decided to take up the issue in what is known as an en banc proceeding.

The decision to invoke the en banc hearing of the case  was published on February 26th. It’s not clear when the decision was made. It’s normally done by a vote of all the judges on the court.

The decision in this case is extremely important. The ruling of the three judge panel destroyed the most significant current tactic in the civilian disarmament arsenal: the medicalization of gun control. The process of changing the use of weapons from personal choice, whether responsible or criminal, into a theory where the choice of the individual is immaterial, and guns are treated as disease vectors, as viruses and bacteria are.

The earlier three judge panel found that guns were not disease vectors, a pretty easy decision, one would think. From the decision(pdf):

With this great authority comes great responsibility. To protect patients, society has long imposed upon physicians certain duties and restrictions that define the boundaries of good medical care. In keeping with this tradition, the State passed the Act. The Act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care—especially not when that inquiry or record- keeping constitutes such a substantial intrusion upon patient privacy—and that good medical care never requires the discrimination or harassment of firearm owners.

The three judge panel also found that a physician who categorically tells a patient that it’s unsafe to own a gun, without a specific medical reason, is chilling the exercise of the patient’s Second Amendment rights.

It is of course an interference with Second Amendment rights for a trusted physician to tell his patient—for no medically relevant reason whatsoever—that it is unsafe to own a gun. Though such actions, on their own, may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights. Such speech chills the patient’s exercise of his rights and that is sufficient.

Whether the whole Eleventh Circuit will uphold the decision of the three judge panel is uncertain. It will be months before we know the answer to that question.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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40 Responses to 11th Circuit to Hear Challenge to Repudiation of the Medicalization of Gun Control

  1. My eye doctor asks me about my shooting. He asks if the shooting glasses he had made for me worked as intended. Then we discuss the merits of his AR vs. my AK; his .45 vs. my 9mm. Does this make me Eurocentric or possibly a terrorist worthy of reporting to

    • Same here. My eye doctor belomgs to the same range I do; and has shared his families shooting stories with me.

    • As long as you can still see those puny little euro pellets your throwing around, your eye doctor will probably give you a pass 🙂

    • You’re lucky.

      When I was younger I had the same doc as my parents, a family physician. He’s a hard-core lefty and completely anti gun.

      At one point I asked him during a routine physical what lotion he recommended for dry hands. He asked if I knew the cause of the dryness or had a suspicion as to the cause. I told him that I thought Hoppe’s dried the crap out of your hands. He asked what “Hoppe’s” was. I told him.

      He then launched into a five minute diatribe about how no one should own guns because they’re terribly unsafe murder machines with the human killing zeal of a Terminator and the intelligence of Einstein. With my pathetic IQ I could never hope to comprehend how to handle such a device safely (nor could any mere mortal, which interestingly doesn’t seem to cover cops or the military) and he recommended that rather than sell my family’s guns I should turn them over to the police for destruction. [Note: This is an exaggeration, but honestly, not much of one.]

      He never did answer my question.

      So, I started wearing nitrile gloves to clean guns and never talked to the guy about it again. In fact, that was the last time I ever saw him.

  2. Ermmm… I’m confused by the Justice Scalia reference. Scalia was a justice on the US Supreme Court, which is mutually exclusive with the 11th circuit court of appeals. En banc proceedings are not really that rare… They are held when a petition for reconsideration receives a majority vote by all *judges* sitting on the circuit court. “It’s normally done by a majority of all justices on the Court.” Justices are judges on the Supreme Court…. All the rest are judges. Whenever you guys need a legal editor… Let me know.

    • On en banc, anything can happen, and the grant suggests that a majority of the bench believes that the Court should take a closer look at the question. Sometimes this is political, sometimes simply because the case raises an important question of public policy. In Peruta v. Gore, the California case dealing with the “may issue” question, the grant of review was clearly political, as was the panel that is reviewing a rather succinct, clear, and logical decision by the 3 judge panel. (As an aside, that case was argued June 16, 2015, and a decision has yet to issue. Maybe because they cannot find a way to get around the logic of the former decision holding that a desire to exercise one’s 2A rights is “good cause” for issuance of a ccw license, when no other method of carry is available in the state.) Here, I think that the reason for en banc is because of the importance of the question, not politics, since the 11th is generally conservative.

  3. The issue is not the medicalization of gun control per se but whether the State can tell a doctor what he can say to, or ask of, a patient. I would say the law is unconstitutional on its face. I support the constitution even when it allows something I don’t like.

    • So, an agent of the State can ask you any question, and financially harm you if you refuse to answer? Doctors here are acting as agents of the state. Answers that they obtain in these sort of questions are required to be recorded and to be placed in data bases available to dozens of state agencies.

      Pediatricians are saying that they have the right to ask children, without the parents being informed, if there are guns in the house, and to record that information and make it available to the state. Is that covered under the First Amendment?

      Remember that access to care is severely restricted by the government in many cases. If a patient accepts government provided care, does that mean he or she is allowed to be intimidated and forced to give information? Does not sound like a First Amendment issue to me. More like a Fifth.

      • While I’m not a fan of the AAP, your statement seems a bit inflammatory. I’m a pediatrician, my patients records are not accessible to multiple government agencies automatically. I mean even when the CDC collects vaccine info they get HIPAA consent from the parents first. I also routinely ask teenagers about drug use and safe sex practice with the parents not in the room… Should the government mandate whether or not I’m allowed to ask that as well? I know many pediatricians are rabidly anti gun, but the parents can decide to go to one (in most cases) that is more aligned with their political beliefs.. I know I’ve had people not come back to me after I make multiple disparaging comments about the Democratic Party… And that’s their right, as is mine to express my opinion.

        • Here is what the 3 judge panel wrote about access by government agencies in their decision:

          In 2009, the federal government implemented
          requirements mandating that all healthcare providers begin transitioning to
          electronic medical records. See 42 U.S.C. § 300jj-11(c)(3)(A)(ii). Although the
          government requires this transition, service providers are responsible for
          maintaining the security of the electronic records. See Office of the National
          Coordinator for Health Information Technology, Federal Health IT Strategic Plan
          2015–2020, at 16, available at
          healthIT-strategic-plan-2014.pdf. This information may be shared with as many as
          thirty-five government agencies. See id. at 2. It is not difficult to imagine this
          information being accessed by any number of unauthorized persons due to
          negligence or the sheer impossibility of guaranteeing impenetrable security. See
          supra note 22. More to the point—and keeping in mind, once again, that the Act
          applies only when physicians have no medically relevant reason to gather such
          information in the first place—there is no reason for patients to fear for the
          confidentiality of their status as firearm owners if information about it is simply
          not collected at all.

        • The law prohibits the collection of data on gun ownership but does not prohibit the doctor from discussing it with the patient. That is the difference between ACA and the Florida law. The Florida law prohibits the doctor from offering his opinion which is a clear violation of the First Amendment.

        • @tdiinva

          Yes, the 1st amendment issue is a very important point. A doc, especially one in private practice, should be able to say anything. If the patient doesn’t like it, the patient can go find a new doc. At least, that’s the way it should be.

          Then again, with work-sponsored health plans (which were originally offered to get around regulations regarding compensation) limiting options, and Obamacare limiting options even more, it might be pretty difficult for a patient to just drop their doc and get a new one. As usual, things that would be no problem in a true free market system are issues under excessive regulation, and governments choose to “fix” these problems with even more regulation, and the whole thing continues in a downward spiral with respect to individual freedom.

          Like prescribing a medication, then more medications to treat the side effects of the first, and so forth until someone who had an inconvenient ailment is a physical wreck.

        • With minors, specifically, I think the pediatrician should be required to give a list of the questions they will ask the minor while not in the presence of the parent. Then the parent can make an informed decision as to whether this is the right doctor for them. For things like drug use and sexual activity, where there may be repercussions beyond health concerns based on the answers that would reduce the likelihood of honest answers, I can see your point about asking away from their parent; but the parent should still know what you’re going to ask, even if they don’t know the answer that will be given. Note that there IS an inherent difference between these questions and gun ownership; the only reason to ask about gun ownership away from the parents is because you don’t want the parents to know that you’re asking and/or you want to pry into the parents’ personal lives without them knowing what you know. Neither has to do with the health risks being taken directly by the minor/patient.

      • Thats one reason I refused to let my children(when in the 4th grade) participate in the DARE program in school. It wasnt about drugs, it was about information. Remebering a story of a cuban friend of mine, Policia ask him if his uncle had any weapons, being a child, he said yes. He said, ” they drug my uncle out of the house and shot him.” CCW, NRA memberships, and any other gun related organizations, even this forum, is information “they” dont need. I personally dont own any firearms. I used to, I just like this forum because its constitutionally orienated.

    • You certainly do not understand the issue at hand. Or you are a shill for the Brady Bunch. Either way this makes you appear to be a complete idiot.

  4. Anything can happen, but judges don’t usually like to overturn cases when there have been multiple rulings by other judges. There have been enough legal swings at this ball. El Predicto says, it will be upheld. FTW.

  5. Forceful government censorship and gray areas creates a chilling effect. How can an individual’s personal opinion chill your anything? Fear of jailtime for your beliefs is one thing, but fear of me telling you I don’t like it or won’t be a part of it? Go back to your safe space.

    If you don’t like it then get out from under their roof and go find another doctor. It’s not anyone’s problem but your own if you have to drive 200 miles to the next doc. If someone potentially telling something they know to the cops–whether it’s a crime or not–is such a threat that it requires a law, you best not talk to anyone, ever.

    When you’re under their roof, they come before you because there are other amendments besides the 2nd. Gawd dayum, talk about fulfilling stereotypes on this post.

    • I do not know what personal opinion you are talking about. That is not what is being discussed here.

      There is now an almost complete intertwining of medical practice and the government. Doctors are required to ask questions. I have read of many who asked their doctors why they were asked about guns. They were told that the question was required. If patients do not answer the questions about whether they have guns, some have been denied care. The answers are required to be recorded, and the data required to be on digital databases available to dozens of government entities.

      The law under discussion merely requires that doctors not make inquiries about firearms that have nothing to do with a patients specific problems, and forbids them from placing information about firearms, that does not have to do with specific medical conditions, in electronic data bases.

      • Ah yes, the law “merely requires” a bit of muzzling. You don’t seem to understand that whataboutisms cannot justify prior restraint on free speech.

        If you’re referring to medical profiles being available to the state with a warrant, that’s true of any other information. If we take your grapevine telephone at its word and docs really are required to do something logging gun records by the state, it’s wrong, just like a gag law is wrong. The correct answer would be to fight to require a warrant to access any patient info. Prior restraint isn’t an option.

        • No warrant required. It is “medical” information.

          I am all for removing the State from doctor patient interaction.

          I do not see it happening, though under Trump’s plan, there would be at least a removal to lower level state interaction, and that would be a move in the right direction.

          Remove medical personnel as agents of the state; then we can talk. Government agents “should” have less rights in the performance of their official duties.

          Using State government power to limit federal government power is what checks and balances is all about.

        • How are required questions about guns for doctors to ask free speech? Free speech is if the doc decides to strike up a conversation about guns. It is not a muzzling of free speech to ban doctors from asking patients about their guns and thus prying into their personal lives, especially when the government wants such information asked.

  6. I wonder, when in the long and arduous path of learning to be a doctor, do these folks learn anything about firearms and firearm safety? What makes them qualified to even discuss the topic? Or could it simply be that they believe guns are simply too dangerous for the simple minded non-doctors to own and keep? My doctors work for me and I have no problem firing them

  7. NRA state lobbyist Todd Vandermyde is doing his part to destroy medical confidentiality. Here’s the original privacy waiver from Illinois state Rep. Brandon Phelps HB183 “NRA backed” carry bill which passed in June 2013. I am not making this up:

    “a waiver of the applicant’s privacy and confidentiality rights and privileges under ALL federal and state laws, including those limiting access to juvenile court, criminal justice, psychological, or psychiatric records or records relating to any institutionalization of the applicant, and an affirmative request that a person having custody of any of these records provide it or information concerning it to the Department;” WOW!! Thanks Todd!

    That is known as an open-ended waiver. Want an IL carry license? Sign your life away FOREVER. No expiration date on this baby. Richard Pearson explained to the hicks from southern IL that you have nothing to worry about if you are a good old boy. The IL State Police would never use the UNLIMITED privacy waiver supplied by the police unions to pull your records and share them with the feds.

    More great “work” from Richard Pearson at ISRA and Todd Vandermyde, contract lobbyist for NRA, the team that brought you Duty to Inform w/ criminal penalties. Luckily most ISRA members are too stupid to read the bills, or can’t read at all. Yee-haw!

  8. Would they go for doctors asking people what church they go to and giving advice on that?

    How about what newspaper to read?

    Or, to go to a common comparison with guns, how about doctors meddling in patient decisions about what car to drive?

  9. A doctor could ask me all the questions he wants, I don’t have to answer, and the look I’ll give him will offer him a chance not to repeat the question. If he persist I’ll remind him we’re in a tight enclosed room and it would unfortunate if he tripped into his equipment. Failing that I’ll vote with my feet and get another doctor.

  10. Dean, please name 1 government agency that has access to my patients’ medical records without a consent form signed by a parent, or a judge’s order? Is this a State specific problem? I practice in NV if that helps.

  11. I remember waiting in my local clinic while two nurses walked by. They were discussing the then new conceal and carry law for Kansas. One of them brought up a guy who got shot in Wichita under a proper d.g.u. the listening nurse mentioned that the rightful defender should have emptied the magazine and the talking nurse agreed. In my city. The doctors and nurses are our friends. Not an issue!

  12. in January had an extremely interesting article article about “should doctors have a role in gun safety counseling ”
    Only medical professionals are allowed to comment
    Of the 754 comment, about 90% were pro gun and against doctors bringing up the topic at all.
    I was pleased to see so many pro gun doctors.
    Many said things like doctors have no special training in firearms safety and if a patient asked about it, a referral to an nra safety course was indicated.
    As to government mandated speech, I was amazed to be informed that I am now required to counsel any smoker to quit smoking
    If I do not document that in the chart, the Medicare program will lower all my payments for all patients.
    As an Anesthesiologist, I do not see smoking cessation counseling as part of my job,
    However, nameless bureaucrats in Washington have now forced me to give a government mandated speech.

  13. “Though such actions, on their own, may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights.”
    Now if only that judge was on every other panel that heard a gun rights case. How do you think he’d feel about 16-hour required training courses and $150 fees just to apply (with no guarantee of receiving a carry permit)?

  14. I haven’t read the law or the arguments made, and frankly I’m not going to right now because this is a blog post comment and not an article in the Tribune. But here are my thoughts: assuming the law specifies that doctors may not ask their patients about firearms, or suggest that they never own one, unless it is directly related to a current medical issue, it should be struck down. Assuming that the the law specifies that the State may not require doctors to ask about or make suggestions regarding firearms, it should be upheld. The bottom line is, we shouldn’t be telling doctors what to say or not say unless it is demonstrably medically harmful to the patient. (E.g., it’s alright to forbid doctors from giving their opinion on the medical benefits of drinking your own urine, unless it’s backed up by objective science, but there’s no reason they can’t ask you if you keep bleach in the house and to make sure your kids don’t drink it).

  15. Any questions outside the patients immediate health concern are unethical, and should be illegal, especially with minors. This is part of the agenda to remove parental/family control over children and give that authority to the state.

  16. To the anesthesiologist: Medicare related payments and penalties are not the government forcing you to do anything. You don’t want to counsel about smoking, don’t counsel about smoking. And suck it up when you take a hit in your “quality” bonus (or lack there of). No physician has to take Medicare or Medicaid. They may have to hang up a shingle on their own to avoid doing so, but It’s ridiculous to every doc is an agent of the government. The biggest EMR in the country has no built in provision for tracking gun ownership. None. It could be custom coded in, but I’ve never seen it done or pushed at the three large academic medical centers I’ve known well enough to judge (though none were in particularly liberal parts of the country).

    Of the things to worry about, medical system sponsored gun grabs should be way down the list. Hell, we can’t keep people from fattening themselves up and that kills way more people. Plus the basic dysfunctional nature of any group of more than 7 doctors is helpful as well if anyone tries to go for it.

    • You do understand as an anesthesiologist, if he/she did not take Medicaid/Medicare there would be very little he could do professionally? Since most of those doctors work in hospitals and have no choice on who they see?

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