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Judge overturns Florida law prohibiting physicians from asking patients about guns

 
 
Reply Tue 3 Jul, 2012 09:59 am
Jul. 03, 2012
Judge overturns Florida law prohibiting physicians from asking patients about guns
Jay Weaver | McClatchy Newspapers

MIAMI -- ]

A federal judge has blocked the state of Florida from enforcing a law pushed by firearms advocates that banned thousands of doctors from discussing gun ownership with their patients.

U.S. District Judge Marcia Cooke, who had already issued a preliminary injunction last September, made her decision permanent late Friday when she ruled in favor of groups of physicians who asserted that the law violated their free speech rights. She said the law was so "vague" that it violated the First Amendment rights of doctors, noting that the legislation's privacy provisions "fail to provide any standards for practitioners to follow."

The state Department of Health could appeal her summary judgment, which addressed legislation signed into law last year by Gov. Rick Scott.

In her ruling, Cooke clearly sided with the physicians, saying evidence showed that physicians began "self-censoring" because of the "chilling" effect of the legislation.

"What is curious about this law - and what makes it different from so many other laws involving practitioners' speech - is that it aims to restrict a practitioner's ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient," Cooke wrote, citing the benefit of such "preventive medicine."

"The state asserts that it has an interest in protecting the exercise of the fundamental right to keep and bear arms," Cooke wrote in another section about the Second Amendment issue. "I do not disagree that the government has such an interest in protecting its citizens' fundamental rights. The Firearm Owners' Privacy Act, however, simply does not interfere with the right to keep and bear arms."

The state's latest legal loss follows a series of other recent setbacks in the courts, including healthcare reform, privatization of prisons, drug testing of welfare recipients, drug testing of state workers and the shifting of pension costs onto state workers.

The Republican-controlled state Legislature adopted the Firearm Owners' Privacy Act in 2011 after an Ocala couple complained that a doctor asked them about guns and they refused to answer. The physician refused to see them anymore.

Cooke, the judge, said the legislation was based on anecdotal information and unfounded conjecture. Her decision was praised by the groups of plaintiffs, which included the Florida Pediatric Society and Florida Academy of Family Physicians.

"I'm ecstatic our challenge was successful," said Dr. Bernd Wollschlaeger, a North Miami Beach plaintiff, who represented the Florida Academy of Family Physicians.

"We're acting out of common sense, and this is a common sense issue," said Wollschlaeger, a past president of the Dade County Medical Association. "My fear is the state will appeal and keeping wasting money to fight windmills. This is an ideologically driven, politically motivated vendetta by the NRA (National Rifle Association) that has to stop."

The NRA tried to intervene in the doctors' lawsuit. But the judge denied the lobbying group's request, saying the state could adequately defend itself. Lawyers for the Washington-based Brady Center to Prevent Gun Violence were also involved in the case, representing the doctors' side.

"Guns in the home are a proven deadly risk," Dan Gross, president of the Brady Center, said in a written statement. "Guns kill eight children every day. The government cannot tell us or our doctors that we are prohibited from discussing the deadly risks posed by guns."

The state Department of Health has not determined if it will appeal the decision, but House sponsor Rep. Jason Brodeur, R-Sanford, said an appeal is likely.

"I expect the ruling to be appealed to the 11th Circuit (Court of Appeals in Atlanta)," Brodeur told the News Service of Florida on Monday. "But that will depend on the wording of the ruling. I haven't read it yet so we'll have to see."

The law says doctors and other health-care practitioners "shall respect a patient's right to privacy and should refrain" from asking about gun ownership or whether people have guns in their homes. The statute also says physicians may ask about guns if they believe in "good faith" that the information is "relevant" to a patient's medical care or safety.

But the law doesn't spell out those acceptable circumstances, leading lawyers for the doctors to say it is so "vague" that they could be vulnerable to patient complaints filed with the Board of Medicine.

Lawyers representing pediatricians and other doctors argued that physicians had to impose "self-censorship" on health-screening questionnaires and verbal exchanges with patients because of fears they could face high fines or lose their licenses if they warn families about the risks of keeping guns in homes or other places.

Two Miami-Dade physicians - Wollschlaeger, the family ractitioner in North Miami Beach, and pediatrician Judith Schaechter of the University of Miami School of Medicine and Jackson Memorial Hospital - said in court papers that they had discontinued questioning patients about guns on standard health-screening forms.

"Physicians just stopped asking their patients about gun ownership because it was such a dicey situation," Wollschlaeger said.

 
gungasnake
 
  0  
Reply Tue 3 Jul, 2012 10:06 am
The right answer:

Quote:
"Would you have questioned George Washington, James Madison, or Thomas Jefferson if they owned firearms, and what would have been the consequences had they answered yes?"
raprap
 
  5  
Reply Tue 3 Jul, 2012 11:03 am
@gungasnake,
The physician would have planned appropriately , entered it into his confidential patient medical records and prepared for firearm incidents.

What I find interesting is the hyper paranoia of of the 2nd amendment only crowd and the extent they are prepared to go to to bury statistical evidence may indicate that guns are in fact dangerous if mishandled. Of course that provides the GOP the opportunity to cater to the 2nd amendment only crowd of their increasingly wacko politics.

BTW the firearms that were available to George Washington and Thomas Jefferson were black powder, flintlock, muzzle loaders. Comparing those firearms to a Glock is almost analogous to comparing an abacus to an I-Pad.

Rap
gungasnake
 
  -1  
Reply Tue 3 Jul, 2012 12:35 pm
@raprap,
The D.C. snipers, Mohammed/Malvo, were using an M16 but the way they were using it, one shot and scoot, it could as easily have been a muzzle loader, it wouldn't have made any difference. None of those shots were outside the range of George Washington's best rifle.

Jack the Ripper never owned a gun, Lizzie Bordon never owned a gun, Genghis Khan never owned a gun and neither did any of his employees, Tamerlane never owned a gun......

The idea of a doctor asking me whether I owned firearms as if it would mean anything in the context of medicine is basically asinine and insulting, particularly given the history of the United States and its founders.
DrewDad
 
  2  
Reply Tue 3 Jul, 2012 12:41 pm
@gungasnake,
gungasnake wrote:

The D.C. snipers, Mohammed/Malvo, were using an M16 but the way they were using it, one shot and scoot, it could as easily have been a muzzle loader, it wouldn't have made any difference.

Why would the D.C. snipers have been discussing their weapons with a doctor?


gungasnake wrote:
The idea of a doctor asking me whether I owned firearms as if it would mean anything in the context of medicine is basically asinine and insulting, particularly given the history of the United States and its founders.

Doctor: Got a gun?
Patient: Yes.
Doctor: Got kids, grandkids, or kids that visit?
Patient: No.
Doctor: OK, then, be careful and don't go hunting with Dick Cheney.


Doctor: Got a gun?
Patient: Yes.
Doctor: Got kids, grandkids, or kids that visit?
Patient: Yes.
Doctor: OK, then. Be sure to put your guns away when they're around, or you can end up killing 'em with your hobby.....
parados
 
  2  
Reply Tue 3 Jul, 2012 12:42 pm
@gungasnake,
I can't even imagine a Dr. asking you to read the letters on an eye chart, Gunga.

Questions are usually restricted to ones the patient is capable of intelligently answering.
0 Replies
 
DrewDad
 
  3  
Reply Tue 3 Jul, 2012 12:43 pm
@DrewDad,
Of course, the biggest issue is that doctors discussing guns with their patients is some kind of bugaboo that the 2nd amendment crowd has.

Whaa!!!! I don't want my doctor to ask me questions!!! Whaa!!!!

WTF?

Gun owners aren't capable of saying, "I'd rather not discuss that?"
0 Replies
 
Joe Nation
 
  1  
Reply Tue 3 Jul, 2012 12:45 pm
@gungasnake,
Do you mean to say that if, while examining a four year old recovering from a bad case of bronchitis, his mother says that her husband has the same thing but that he is so depressed over losing his job a year ago and gets so angry that that's the least of their problems, the doctor shouldn't inquire as to whether or not the depressed husband has access to a gun?

Joe(Is the doctor a care provider or not?)Nation

0 Replies
 
parados
 
  3  
Reply Tue 3 Jul, 2012 12:45 pm
@DrewDad,

Patient: I'm depressed and considering killing myself.
Doctor: Got a gun?
Patient: Yes.
Doctor: No problem then, you are good to go.



In all seriousness, there are many situations where a Dr. may want to ask the question. Mental health or drugs that may have a depressing side effect are the most likely.
0 Replies
 
raprap
 
  3  
Reply Tue 3 Jul, 2012 01:40 pm
@gungasnake,
The DC sniper fired from the inside of a car--if they were using black powder in a car it they would be easy to identify--they would have been in the car that drove into the wall because the driver was blinded by smoke.

Rap

hawkeye10
 
  -1  
Reply Tue 3 Jul, 2012 01:46 pm
Even if the law allows it the AMA should strongly recommend to its members that they stay away from questions such as this, and "do you feel abused at home?". The doctor/patient relationship is already greatly deteriorated, doctors should resist making the situation worse.

BTW, recent journalism accounts say that doctors are greatly financially stressed....what Doctors need to begin to understand is that they have few allies in this collective. Their long record of poor handling of the doctor/patient interaction is a huge part of the reason why doctors have few friends, and increasingly are going the way of lawyers so far as reputation goes, as well as career benefits (jobs and good pay being increasingly difficult to find) .
0 Replies
 
gungasnake
 
  0  
Reply Tue 3 Jul, 2012 02:08 pm
@raprap,
They were shooting through a hole in the trunk of the car. George Washington could have made all the same shots with a muzzle loader.
DrewDad
 
  2  
Reply Tue 3 Jul, 2012 02:24 pm
@gungasnake,
Who cares?

How does that affect anything about how doctors and patients relate to each other?
0 Replies
 
MontereyJack
 
  2  
Reply Tue 3 Jul, 2012 02:32 pm
George Washington and his flintlock rifle wouldn't have fit in the trunk of a car. And I'd love to watch gunga try to reload a muzzle loader while he's lieing curled up covered in black powder residue in the trunk of a car. Let's see--4 foot barrel plus 2 foot stock, 4 foot ramrod, 5 foot wide trunk, hmm, good at working in the 4th and 5th dimensions, are you, gunga?
MontereyJack
 
  1  
Reply Tue 3 Jul, 2012 02:49 pm
Not to mention the gunpowder in the pan that goes off when the sparks from the flint ignite it. Nothing like a mini-explosion inches from your face in a confined space, which probably like most trunks has something flammable in it. Great idea, gunga. Please try it out and report back to us on the feasability. If you survive.
0 Replies
 
DrewDad
 
  1  
Reply Tue 3 Jul, 2012 02:52 pm
@MontereyJack,
I'm also kinda dubious about the accuracy of a smooth boor musket.

Still wondering why it matters in a discussion about what a doctor is allowed to discuss with his patient.
parados
 
  1  
Reply Tue 3 Jul, 2012 03:00 pm
@DrewDad,
DrewDad wrote:



Still wondering why it matters in a discussion about what a doctor is allowed to discuss with his patient.

Doctors do ask about sexual practices.
DrewDad
 
  1  
Reply Tue 3 Jul, 2012 03:01 pm
@parados,
One hopes they've checked to make sure it's not loaded.
aspvenom
 
  1  
Reply Tue 3 Jul, 2012 03:28 pm
@DrewDad,
Well if it's a mob doctor, they could care less Laughing .
0 Replies
 
raprap
 
  1  
Reply Tue 3 Jul, 2012 04:08 pm
@DrewDad,
There were rifle marksmen in George Washington's army--he had general orders not to put riflemen in the front ranks as it takes longer to reload a rifle than it does a smooth bore musket. The British, used the service gun of the time--the 'Brown Bess' a 75 Caliber smooth bore musket that was about as accurate as a major league pitcher, riflemen at the time could hit 6" targets at 100 yards.

Rap
 

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