Florida Doctors Sue to Overturn "Gag Law" on Guns


Physicians and the Florida Chapter of the American Academy of Pediatrics sued Florida Gov. Rick Scott, claiming the "Physician Gag Law" he signed last week unconstitutionally bars doctors from asking patients simple questions about guns and gun safety, and threatens them with loss of their medical licenses if they do so. More than 170 Florida children die each year from gunshots.

Three Florida doctors sued the governor and four other top Florida officials in Miami Federal Court. The plaintiff doctors are joined by the Florida Chapters of the American Academy of Pediatrics, the American Academy of Family Physicians and the American College of Physicians.

The doctors say the Physician Gag Law (Florida Statutes sections 381.026, 395.1055, 790.338 and 456.072 amended or created by CS/CS/HB 155, entitled 'An act relating to the privacy of firearm owners') violates the First Amendment rights of patients and physicians. 

The doctors say the Physician Gag Law "purports to protect the 'privacy' of Florida firearm owners." But "It does not, in fact, advance firearms' owners rights under the Second Amendment to the U.S. Constitution. Owners of firearms in Florida remain subject to, for instance, the Florida statute requiring safe storage of firearms in homes with children ... See Fla. Stat. § 790.174. Rather than furthering a right to bear arms, the Physician Gag Law restricts discussion of firearms."

The doctors say the Gag Law also vaguely defines, and subjects doctors to penalties for "harassing" patients about guns, "discriminating" because of gun ownership, writing about patients' gun ownership, and prevents doctors and even emergency medical responders from asking about guns in the house unless the questions are "relevant" to the medical emergency, without defining what relevant means. 

The law "would punish health care professionals simply for asking questions of, and providing information to, their patients about firearm safety. By severely restricting such speech and the ability of physicians to practice such preventative medicine, the Florida statute could result in grievous harm to children, adolescents, adults, and the elderly. The First Amendment does not permit such a gross and content-based intrusion on speech and, accordingly, the Court should declare the Physician Gag Law unconstitutional and enjoin its enforcement," the complaint states.

"The practice of medicine requires a free and open exchange of questions, answers, and information between a patient and health care practitioner. Indeed, for that reason, both state and federal law protect the confidentiality of such conversations. Physicians and other health care professionals must engage in highly personal exchanges with their patients about private, confidential topics so patients understand the risks to themselves, their families, and their children arising from personal decisions they make and private conduct they engage in within their homes. The Physician Gag law directly interferes with, and intrudes upon, health care practitioners' ability to engage fully in these consultations by severely restricting inquiries about a significant and preventable risk to patients - the risk of injury or death posed by the presence of firearms in the home.

"Specifically, the Physician Gag Law expressly restricts health care practitioners, in certain vaguely-defined circumstances, from asking patients questions related to gun safety or recording information from those conversations in patients' medical records, on penalty of harsh disciplinary sanctions, including fines and permanent revocation of their licenses to practice medicine. Moreover, the statute prohibits 'unnecessar[y] harass[ment]' and 'discrimination' on the basis of a patient's possession or ownership of a firearm, but defines neither of those terms, leaving their definitions to the eye of the beholder. As a result, some health care practitioners who are simply following established protocol by informing patients how they may limit the lethal risks posed by firearms may be hauled before a disciplinary board because a patient who categorically objects to any discussion or inquiry regarding such risks claims to be offended."

The doctors say that information about gun safety is a necessary part of preventive medicine. Suicide is the third-leading cause of death in the United States for people younger than 21, and the second-leading cause of death for people 25 to 34. Unintentional injury is the leading cause of death for children older than 1; many of those death involve firearms. U.S. men, for example, committed suicide with guns 56.8 percent of the time in 2007, according to the complaint.

The physicians say the dangers are elevated in Florida, which has a higher level of gun ownership than the national average: "Firearms pose particular risks in households with children. Every day in America 65 children and teens are shot with firearms, and eight of them die. One third of U.S. homes with children younger than eighteen have a firearm. More than 40 percent of gun-owning households with children store their guns unlocked and one quarter of those homes store them loaded.

"Each year, Florida children are harmed when they or other children gain access to firearms that have not been stored properly. Florida's overall gun death rate is higher than the national average. From 1999 to 2007, 1,195 children and teens in Florida were shot and killed with firearms. In a mere two-month span last year, from February 8, 2010 through March 26, 2010, four Florida children died from injuries accidentally inflicted by firearms. ...

"Anticipatory safety guidance regarding firearms is thus a crucial part of the practice of preventative medicine in Florida."

The doctors object to four specific, central elements of the Gag Law. 

"First, the Physician Gag Law restricts health care practitioners and facilities from 'making a written inquiry or asking questions concerning' particular subjects: 'the ownership of a firearm or ammunition by the patient or by a family of a member of the patient,' and 'the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.'" The law allows an exception, if the doctor "'in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others.'"

"Second, the Physician Gag Law restricts practitioners from writing information on the subject of "firearm ownership" in patients' medical records, thus restricting written communication among practitioners within a health care facility on the subject of preventative care related to firearm ownership. The statute prohibits health care practitioners and facilities from 'intentionally enter[ing] any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or the safety of others.'"

The doctors say the law does not define what constitutes "relevan[ce] to the patient's medical care or safety, or the safety of others." But they say: "Another provision of the Physician Gag Law, governing emergency medical technicians ('EMTs'), sets a high standard for 'relevance.' The statute authorizes EMTs to inquire about a patient's possession of a firearm or the presence of a firearm in the home, but only if the EMT 'in good faith believes that [such] information ... is necessary to treat a patient during the course and scope of a medical emergency or that the presence or possession of a firearm would pose an imminent danger or threat to the patient or others.'" 

But the statute does not define relevance, or imminent danger, or threat.

"The Physician Gag Law's third main restriction on health care practitioner's speech is its prohibition of 'unnecessarily harassing' patients on the subject of 'firearm ownership.' ... Although the provision does not define 'harassment,' under any natural reading of the statute (however narrow or broad), such 'harass[ment]' would largely or entirely consist of a practitioner's speech regarding firearms directed to a patient.

"Although some patients might perceive as 'harassment' an inquiry that another patient welcomes, the Physician Gag Law provides no guidance regarding what kind of conduct would subject a practitioner or facility to disciplinary proceedings for having engaged in harassment. Any individual patient who feels 'harassed' by a practitioner's questions related to gun safety can report a practitioner for violating the Physician Gag Law.

"Fourth, the Physician Gag Law prohibits 'discriminat[ion]' 'based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.' ... Because the meaning of this prohibition is wholly unclear, it imposes a further burden on, and further serves to restrict, practitioners' speech directed to patients regarding the subject matter of firearms."

The doctors say the law will harm them and their patients, "and has an immediate restrictive effect on Plaintiffs' exercise of their constitutional right to speak freely to their patients, in the exercise of their best medical judgment, regarding safe gun ownership." They want it enjoined as unconstitutional.

Their lead attorneys are Edward Mullins with Astigarraga Davis Mullins & Grossman of Miami and Bruce Manheim Jr. with Ropes & Gray of Washington.


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