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    Can I be sued for asking a patient if he owns a gun?

    Dr. Skin has become increasingly concerned about the number of school shootings in the United States. He has established an office policy that has his staff asking patients if they own a gun. If they do, they are not allowed to bring the weapon to the office. He has recently been sued by a patient for simply asking the question “Do you own a gun?”. He seeks legal advice. Is Dr. Skin not allowed to ask such a simple question?

    Such a question recently arose in Florida. In Wollschlaeger v. Governor of Florida, physicians and physician interest groups brought an action against the governor of Florida alleging that the Florida Firearm Owners' Privacy Act (the Act) (which prohibited asking patients if they owned guns) violated the physicians’ constitutional right of freedom of free speech. The Act, as written, restricts irrelevant inquiry and record-keeping by physicians about patients’ use and possession of firearms.

    The Act instructs health care providers to refrain from inquiring about whether the patient owns firearms unless the provider believes in good faith that the information is relevant to the patient’s medical care, safety, or the safety of others. Similarly, the Act states that healthcare providers may not intentionally enter information about a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is not “relevant” to the patient’s medical care, safety, or the safety of others.

    The Act also states that a physician shall not discriminate against a patient on the basis of the patient’s ownership of firearms and that providers must “refrain from unnecessarily harassing a patient about firearm ownership”. Violations of the Act could lead to disciplinary action including fines, restriction of practice, probation and suspension or revocation of a medical license.

    Violation or valid regulation?

    Four days after the Florida governor signed the Act into law, physicians filed an action alleging that the inquiry, record-keeping, discrimination and harassment provision of the Act violated among other things their First amendment right to free speech. The Florida Eleventh Circuit ruled against the physicians. In its ruling, the Court noted that the Act was “a legitimate regulation of professional   conduct” which the state has the authority to regulate.

    The Court first noted that the essence of the Act was that medical practitioners should not record information or inquire about a patients’ firearm ownership status when doing so is not necessary to providing the patient with good medical care. The Court said that the Florida state legislature’s motivation for passing the Act was that it had received complaints from patients who claimed they were afraid that their doctors may be sharing their medical information, including information about firearm ownership with third parties, including “government bureaucrats”. The Act, it noted, was meant to protect a patient’s ability to withhold information from his doctor, which would ordinarily be stymied by the power imbalance between doctor and patient.

    The Court deemed gun ownership information that is not relevant to patient health and safety to be a “private” issue into which a doctor should not transgress, stating that “the practice of good medicine should not require inquiry into private matters unless such inquiry is necessary for the practice of good medicine”.

    In regard to the claim that the Act impacted on physicians’ right of free speech, the Court stated that the Act was “a valid regulation of professional conduct that has only an incidental effect on physician free speech – it was not a regulation designed to regulate speech”.

    In the end the issue at hand was whether the regulation was designed to regulate professional conduct of physicians or to regulate their free speech. The Court ruled the Act’s primary purpose was to regulate conduct and therefore was perfectly legal.  

    If Dr. Skin practices in Florida, the Court would agree that he could council patients on safety, but cannot mention guns. What would happen if Dr. Skin practices in other states is not clear. 

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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