Brady Center sues over new "Physician Gag Law"

[Al Norris]

LibShooter, I suspect that the Courts will decide who is right here, not you and I.

The problem, as I see it, is that 1) certain anti-gun Doctors want to use a captive audience (their patient) as a bully-pulpit for their ideas. That is just plain unprofessional and unethical behavior. 2) There are certain Medical Organizations that want to move violence, especially violence while using a firearm, into the realm of disease. Violence is not a disease, it is an anti-social action, commonly referred to as a criminal action.

There is a third peripheral problem. Not all patients can walk with their $$$, if they don't like what their Doctor is doing. Many Healthcare Providers demand that those who use their insurance, use them with specific medical providers within their network.

Doctors are regulated. You don't have a right to practice medicine. Like any other regulated business, the State can regulate your behavior. Here, the law in question regulates a doctors behavior, with enough exceptions, that should guns become a live issue, the Doctor can discuss it with the patient.

It is a fine balancing act between one fundamental right and another. I believe it will be upheld.

 

[Mudinyeri]

So, if the body that regulates medical practitioners is actually ENCOURAGING doctors to give professional advice for which they are not qualified, no one, including the .gov, should step in?

Keep in mind, these are not casual conversations. These conversations involve doctors "prescribing" courses of "treatment" for their patients. Unfortunately, few, if any, of the doctors prescribing these courses of treatment have any training whatsoever in the subjects for which they are providing professional advice.

Now, if I bump into my doctor on the street and we have a casual conversation where I am not paying him for his expertise, that is a different matter entirely. He might suggest improvements for my golf swing. I might suggest a modification to his sports car. Neither of us is paying the other for this advice so it is protected speech.

When I pay someone for their advice, they open themselves up to liability. I'm guessing the AMA hasn't really thought this part of the equation through.

 

[Neverwinter]

There is a third peripheral problem. Not all patients can walk with their $$$, if they don't like what their Doctor is doing. Many Healthcare Providers demand that those who use their insurance, use them with specific medical providers within their network.

That is a problem with the health insurance providers withholding care. Fix that first.

 

[Johannes_Paulsen]

Does anyone have a link to the text of the statute at issue?

 

[Sebastian the Ibis]

I don't have a free link to it. But here is the text of s 790.338 Fla. Stat. The other section cited by the Brady's, 381.026(4)(b)(10) Fla. Stat., is neither on westlaw nor here: http://www.leg.state.fl.us/Statutes/.

790.338. Medical privacy concerning firearms; prohibitions; penalties; exceptions




(1) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 may not intentionally enter 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.


(2) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.


(3) Any emergency medical technician or paramedic acting under the supervision of an emergency medical services medical director under chapter 401 may make an inquiry concerning the possession or presence of a firearm if he or she, in good faith, believes that information regarding the possession of a firearm by the patient or the presence of a firearm in the home or domicile of a patient or a patient's family member 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.


(4) A patient may decline to answer or provide any information regarding ownership of a firearm by the patient or a family member of the patient, or the presence of a firearm in the domicile of the patient or a family member of the patient. A patient's decision not to answer a question relating to the presence or ownership of a firearm does not alter existing law regarding a physician's authorization to choose his or her patients.


(5) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.


(6) A health care practitioner licensed under chapter 456 or a health care facility licensed under chapter 395 shall respect a patient's legal right to own or possess a firearm and should refrain from unnecessarily harassing a patient about firearm ownership during an examination.


(7) An insurer issuing any type of insurance policy pursuant to chapter 627 may not deny coverage, increase any premium, or otherwise discriminate against any insured or applicant for insurance on the basis of or upon reliance upon the lawful ownership or possession of a firearm or ammunition or the lawful use or storage of a firearm or ammunition. Nothing herein shall prevent an insurer from considering the fair market value of firearms or ammunition in the setting of premiums for scheduled personal property coverage.


(8) Violations of the provisions of subsections (1)-(4) constitute grounds for disciplinary action under ss. 456.072(2) and 395.1055.

 

[Johannes_Paulsen]

Thanks, @Sebastian the Ibis! I kept looking for it on the various interwebs but all I could find was text from the Fla. Senate Committee, not the final version.

 

[Johannes_Paulsen]

It is depressing to see people who would man the barricades at the first hint of a threat to the Second Amendment eagerly support a law that goes against the letter and spirit of the First Amendment because they find it politically convenient.

Even those who politically oppose us have rights. The left often forgets that. Should we?

 

[Neverwinter]

stuff

Cue the moral panic. There are so many things wrong with this post that I hardly know where to begin. From the part where you say that the law prevents businesses from discriminating on the basis of religion then consequently threaten not treating Muslims to the part where you equate the issue with a decision to "not let doctors enjoy their right to life".
There's also the conspiratorial tone of the entire thing. You claim that the medical educational and professional system is controlled by some entity that bars entry based on political preference. You then weave it into this fantastical pogrom by a medical elite.

 

[Art Eatman]

From Ibis' post, Section 2: "Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry."

That covers situations where there has been some sort of violence, seems to me. Other than violence, whatever weaponry of whatever sort is owned is strictly private business.

The thrust of the law is to maintain privacy. IMO, then, the lawsuit is frivolous. I'll even say that it reminds me of the immaturity of school teachers who get all panicked over a kid's drawing a picture of a firearm.

 

[Johannes_Paulsen]

Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.

So, considering this portion of the law....if a doctor believes in good faith that firearm ownership leads to a higher risk of death or grievous bodily harm for his patients, then there's nothing stopping him from asking. Just as a doctor who believes in good faith that a family history of cancer leads to a higher risk of cancer in his patients could and should pry into the patient's family medical history, right?

 

[daorhgih]

Having, or seeking treatment for ... ...

... cancer is a topic on which I find a dearth and paucity of comment per
The Constitution. But OTH, the 2A is very meaningful in its plausibility,
application, an enforcement nowadays. DAO

 

[cbrgator]

From Ibis' post, Section 2: "Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry."

That covers situations where there has been some sort of violence, seems to me. Other than violence, whatever weaponry of whatever sort is owned is strictly private business.

You can take it to the bank that doctors will extend that "good faith" provision to the maximum. It will take years and multiple lawsuits to figure out what falls into that exception and what remains off limits.

If they though gun ownership was strictly private business, they wouldn't be suing in the first place.

 

[Johannes_Paulsen]

... cancer is a topic on which I find a dearth and paucity of comment per
The Constitution. But OTH, the 2A is very meaningful in its plausibility,
application, an enforcement nowadays. DAO

The part of the U.S. Constitution that is at issue regarding 790.338 quoted above is actually the First Amendment (incorporated to the several States via the Fourteenth Amendment,) which is beautifully terse and cogent in its own right:

"Congress shall make no law...abridging the freedom of speech."

 

[Art Eatman]

jkp1187, if you mistrust doctors all that much, you probably oughta stay away from them. OTOH, many doctors I've met are outdoor-sportsman types. And, by-and-large, most are pretty much common-sense rational folks.

 

[Neverwinter]

Oh you're just trying to sound intelligent. It isn't working. I love it when people can't condescend to actually quantify their objections so they resort to personal attacks instead. Makes me feel so...so.... much like laughing. Yeah that's it. Yeah liberals always make me laugh. It's not a conspiracy of course. Just because an organized group is attempting to deny you medical coverage what could possibly be considered conspiratorial in that set of facts? Couldn't possibly be it. If it walks like a duck, quacks like a duck, in this case duck - the question - about whether you own guns.

Criticism of the content of your post is not a personal attack. Your post is not you.

You haven't provided any facts for the ridiculous claims that you made in the post that was responded to. No facts that support the claim of a concerted effort to refuse medical treatment; only one pediatrician denied service. Nothing to support the claim that the medical educational and professional system is barring entry and ejecting people based on their political belief. You even claimed that the medical education system is unique in being heavily supported by the federal government.

From that last post, it seems victory has been claimed from the high ground of a position of ignorance, self-contradiction and veiled threats.

 

[Sebastian the Ibis]

IHMO, this is the only section that means anything:

(7) An insurer issuing any type of insurance policy pursuant to chapter 627 may not deny coverage, increase any premium, or otherwise discriminate against any insured or applicant for insurance on the basis of or upon reliance upon the lawful ownership or possession of a firearm or ammunition or the lawful use or storage of a firearm or ammunition. Nothing herein shall prevent an insurer from considering the fair market value of firearms or ammunition in the setting of premiums for scheduled personal property coverage.

Everything else is limited by "knows" or "believes" or cannot be penalized, making the statute useless. Just like I "know" and "believe" that every gun I come across is loaded until I confirm otherwise, the doctors this statute was aimed at "know" and "believe" that guns are a threat to public safety. The statute is meaningless because it doesn't depend on what reality is, it depends on what the crazy doctors believe deep down in their heart. It's like the legislature passed a law saying smoking drugs is illegal, but only if you believe the drug is bad for you.

 

[Carl N. Brown]

I am driven to view the medical obsession with gun ownership through this lens:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
— C. S. Lewis, God in the Dock (2002): 292

 

[Johannes_Paulsen]

jkp1187, if you mistrust doctors all that much, you probably oughta stay away from them.

Not at all. As a point of order: with me, trust is something that has to be earned, and I give everyone a reasonable chance to earn it, and that reasonable chance is based on the context in which that person is encountered.

On the other hand, Art, you seem to be quick to trust governments with power to restrict speech. I see no basis to justify such trust, particularly in the context of this Florida legislation.

 

[Art Eatman]

No, all I said is that it seems reasonable to me for a doctor to ask some questions if a patient who appears to have suffered family violence comes in. Women or kids who come in with fresh abrasions and evidence of old bruises have quite often been beaten on at home.

Other than that, the law appears to have the intent of maintaining privacy for patients.

FWIW, from 1955 into 1972, my mother was an executive director of local clinics in the Florida mental health system. "Talking shop" without naming names, she and staff halfway-regularly commented about the "beat-ons" who came in for help.

 

[Johannes_Paulsen]

[quote = Art Eatman]
No, all I said is that it seems reasonable to me for a doctor to ask some questions if a patient who appears to have suffered family violence comes in. Women or kids who come in with fresh abrasions and evidence of old bruises have quite often been beaten on at home.[/quote]

Sure, I agree, and I don't think I said anything here that contradicts that. What I question is the competence of the Florida legislature (or, for that matter, the NRA, or even you and I,) to interject themselves into what is properly a matter between the doctors and patients, particularly when the legislature decides to restrict the freedom of speech of the doctors to achieve that aim.

Other than that, the law appears to have the intent of maintaining privacy for patients.

As I said earlier, I really don't see that the law is needed to do this because the patients fully have the ability to decline to answer any questions that they feel are inappropriate or otherwise make them feel uncomfortable. I think that the law was written to score a few political points for various politicians in Florida, and is written in such a way that it won't really impact the "privacy" concern (i.e., doctors asking questions of patients concerning firearms,) while at the same time creating a legal restriction (however small) to the first amendment protections on speech. For that reason, the lawsuit challenging the statute is hardly "frivolous".

 

[Art Eatman]

Okay, follow your point, jkp. "If ya gotta have a law," it would have been better to say that a patient need not answer (thinking of any red tape aspects coming from a positive answer) rather than a doctor's not being able to ask.

 

[Johannes_Paulsen]

Yeah, I'd find that a lot less troublesome (although I would still be unclear on why it was really necessary....)

 

[Dnaltrop]

My doc asked... I answered truthfully.

Other than the " you keep them locked up, right?" question... he actually asked if I'd like to add Lead-level testing to the list, for myself and children participating with me... rather than turning to the "dangers" of firearms.

I actually appreciated his tone, and his intelligent concern, especially given my shooting is now mostly at an Indoor range.

 

[Sebastian the Ibis]

The NRA's motion to intervene has been denied. A copy of the order is available below.

The court basically said the State of Florida is more than capable of defending the law it just enacted a couple of weeks ago, and the NRA's participation was not needed.

http://www.scribd.com/fullscreen/59787074?access_key=key-14bm2ffr3vi544jg8sni