Medical board may discipline physicians for discussing guns with patients

The U.S. Court of Appeals for the 11th Circuit, in a July 25 opinion, rejected constitutional challenges to a recent Florida law that prevents state-licensed physicians from inquiring about their patients’ gun ownership (Wollschlaeger v. Governor of the State of Florida).

The law, amending Florida’s Patient’s Bill of Rights and Responsibilities to prohibit health care practitioners from adding information about patient firearm ownership into medical records if the information is “not relevant to the patient’s medical care or safety, or the safety of others,” was enacted in June 2011. The new prohibitions give the state’s medical-professional boards the power to discipline licensees for violations.

Shortly after the law passed, several parties brought a challenge to the new restrictions, claiming both that the law violated their right to free speech and that its language was vague and overbroad. A federal district court agreed and issued an order prohibiting the state from enforcing the law.

The state appealed to the 11th Circuit, arguing that the statute only states that doctors “should refrain” from inquiring about patients’ firearm ownership, and the new laws do not actually prohibit medical professionals from making such inquiries. Thus, the state claimed, the act permissibly regulates professional conduct.

Judge Gerald Tjoflat, writing for the majority, noted that the state’s position that the law was only a recommendation—and not an outright prohibition—contradicted a warning letter sent by the medical board to physicians.

Because the restrictions call for the possibility of discipline, medical-professional plaintiffs had a reasonable fear they would face discipline under the law.

In upholding the substance of the law, Judge Tjoflat cited anecdotal evidence that patients, having answered their doctor’s questions about firearm ownership, “may fear that their [medical] record will be shared with third parties, including, for example, government bureaucrats.”

He wrote that “the Act merely circumscribes the unnecessary collection of patient information on one of
many potential sensitive topics…as a means of protecting a patient’s ability to receive effective medical treatment without compromising the patient’s privacy with regard to matters unrelated to healthcare.”

Further, he noted, the patient-physician relationship elevates the power of a doctor such that patients may feel compelled to answer questions. “The Act,” Tjoflat continued, “merely reaffirms the boundaries surrounding what constitutes good medical practice by codifying into law this common-sense proposition.”

The court found that the act was “a valid regulation of professional speech that has only an incidental effect on physicians’ speech” and did not violate the First Amendment.

In response to arguments that physicians may find it difficult to determine when asking about firearms is “relevant” to their patients’ health, Judge Tjoflat wrote that doctors often face such decisions.

They “must continually make decisions regarding what constitutes appropriate care under the relevant professional standards, while running the risk that [they] may be subject to discipline or exposed to malpractice liability for making a poor decision.”

The term “relevant,” as used in the statute, “simply means that a physician may not record a patient’s firearm-ownership status unless the physician has knowledge that—because of some particularized information about the individual patient, for example, that the patient is suicidal or has violent tendencies—the patient’s firearm-ownership status pertains to the patient’s medical care or safety, or the safety of others.”

© 2014 Professional Licensing Report, published by ProForum, a non-profit research group, www.plrnet.org. Reprinted by permission.