Opponents take shots at Florida gun law that limits discussions with patients

September 14, 2011

Florida physicians and other health providers are targets of a gun law that prohibits them from asking patients if there is a firearm or ammunition in the home. Several efforts, both legislative and judicial, seek to overturn the statute, but violators currently face stiff penalties, including loss of license. Find out what the law says and why major physician groups worry about the precedent it sets.

A federal judge has issued an injunction and blocked enforcement of Florida’s controversial gun law that prohibits healthcare practitioners from asking patients if there is a firearm or ammunition in their home.

U.S. District Court Judge Marcia Cooke granted the injunction on First Amendment grounds, pointing out, “The law personally affects plaintiffs because they are currently engaging in self-censorship to avoid potential disciplinary action. This injury is actual. Plaintiffs have provided evidence that they and other physicians began self-censoring themselves shortly after the law went into effect.” She also rejected the state’s argument that the Second Amendment right to bear arms was at issue.

Rick Scott, Florida’s governor, says the state will appeal the injunction.

Under the Florida law, which was pushed by the National Rifle Association (NRA), healthcare providers face sanctions if they discuss or record information in a patient's chart about firearms safety and then, later, a medical board determines that conversation was not “relevant” or was “unnecessarily harassing.” Possible penalties include suspension or revocation of a clinician's license or an administrative fine of up to $10,000.

A lawsuit was filed this summer in federal court on behalf of organizations representing healthcare providers as well as individual doctors, including the Florida Pediatric Society/Florida Chapter of American Academy of Pediatrics; American Academy of Family Physicians, Florida chapter; and the American College of Physicians, Florida chapter. The plaintiffs, represented by the Brady Center to Prevent Gun Violence and several law firms, maintain that the law is unconstitutionally vague and violates the First Amendment by having a severe chilling effect on confidential, life-saving discussions.

"We asked the court to block this gun lobby-backed gag law so that doctors can continue to counsel patients about the severe risks posed to families and children by guns,” said Brady Center President Paul Helmke. “Because Florida's weak gun laws subject Floridians to some of the highest violent crimes rates and gun death rates in the nation, it is crucial that doctors and patients be able to discuss the dangers of guns in the home.”

Meanwhile, Rep. Rick Kriseman, a state representative from St. Petersburg, has filed a bill recently in the state House of Representatives, seeking to overturn the bill, which was a compromise between the NRA and the Florida Medical Association. The repeal effort will be taken up in the 2012 legislative session.

Despite the compromise on the bill by the American Medical Association’s (AMA) state affiliate, commentary in a recent issue of the AMA’s official publication, the Journal of the American Medical Association(JAMA), was highly critical.

Authors Lindsey Murtagh, JD, MPH, and Matthew Miller, MD, MPH, ScD, of the Department of Health Policy and Management, Harvard School of Public Health in Boston said, “Given the potentially harsh penalties for breaching the law and the vague guidance regarding exceptional circumstances, this Florida law, entitled “Privacy of Firearm Owners,”  will likely have a chilling effect on patient-physician discussions about the risks posed by a gun in the home, even in situations permissible under the statute. We believe this law is a form of censorship that directly undermines the sanctity of the patient-physician relationship.”

Murtagh and Miller pointed out that “effective primary care requires asking patients about their decisions and behaviors that can place themselves and others at risk of injury or disease,” including gun ownership.

“With this law, the Florida legislature set a dangerous precedent,” they wrote. “If this law is allowed to stand, what will physicians be forbidden from asking patients next? And at what cost, to their professional identity, the patient-physician relationship, and the health of patients who look to them for specialized knowledge, informed and open counseling, and protection from harm?”

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