"Do you own a gun?"

In what may be a misguided attempt to improve patient privacy because of anecdotal reports that a limited number of healthcare providers inquired about patients’ firearms ownership, the 2011 Florida Legislature modified the Florida Statutes related to Weapons and Firearms Crimes, creating §790.338¹ that

prohibits licensed healthcare professionals from inquiring about gun ownership or the presence of guns in the home. Unfortunately, the Legislature not only failed to evaluate any real data about the risk to a patient’s gun ownership privacy before making this change, but the Legislature also failed to consider that firearms inquiry may be considered a reasonable inquiry into preventive care.

Healthcare providers commonly ask patients uncomfortable questions as part of their routine history, such as alcohol consumption, tobacco use, or even sexual activity. These questions are not meant to harass, rather they are intended to provide sufficient information so that reasonable preventive care suggestions may be provided as part of good patient care. In many cases, healthcare providers may be more aware of adverse health statistics than the general public, such as those related to unintended gunshot wounds in children.

Logically, before a child may suffer any morbidity or mortality related to gunshot wounds in the home, there must be a firearm and available ammunition. In fact, in an abstract presented at the American Academy of Pediatrics National Conference in 2013, Madenci and Weldon documented both the increasing prevalence of childhood gunshot wounds occurring in the home and the statistically significant relationship between the percentage of firearm ownership and the prevalence of gunshot-related wounds in the home.² Notably, between 1997 and 2009, there were 81% more hospitalizations and 59% more in-hospital deaths. While this data may have been well circulated among pediatricians, it likely was not as well circulated among the general public.

Despite this data, in an effort to protect the privacy and emotional well-being of firearms-owning patients based on scant anecdotal reports, the Florida Legislature enacted §790.338 of the Florida Statutes to provide firearm-owning patients with the right to privacy and to be free from health provider harassment and discrimination.

A fuzzy logic

So, while the Centers for Disease Control and Prevention reported 32,351 firearm-related deaths in 2011, or 10.4 deaths per 100,000 population, including 1.77 firearm-related deaths and 11.25 firearm-related injuries per 100,000 population for all races from birth to age 17 years,³ and in response to scant legislative testimony that pediatricians were improperly asking parents about gun ownership and child safety, the Criminal Justice Subcommittee of the Florida House’s Health and Human Services Committee introduced Bill 155: “An act relating to the privacy of firearms owners.” After revision, House Bill 155⁴ was passed by the Florida House and Senate, and signed into law by Governor Rick Scott, either because patient privacy concerning firearms ownership outweighed the harm associated with childhood gunshot wounds, because childhood gunshot wounds were not an issue while Governor Scott ran one of the largest healthcare providers in the United States, or perhaps because childhood gunshot wounds were good for business.

According to §790.338:

1. Florida-licensed healthcare providers may not enter any data related to firearm ownership into a patient’s medical record if the healthcare provider knows that such data is not relevant to a patient’s medical care, patient safety, or third-party safety.

2. Florida-licensed healthcare providers may not inquire whether patients or patients’ family members own firearms unless the healthcare provider possesses a good-faith belief that such data is relevant to a patient’s medical care, patient safety, or third-party safety.

3. During an emergency, a first responder may inquire about firearms ownership provided the first responder possesses a good-faith belief that this data is necessary to ensure patient or third-party safety.

4. Patients may decline to provide any information about firearms ownership or whether firearms are located in the household.

5. Florida-licensed healthcare providers may not discriminate against patients based on firearms or ammunition ownership.

6. Florida-licensed healthcare providers may not harass patients about firearms ownership.

7. Third-party insurers may not discriminate based on firearms ownership by increasing premiums or denying coverage.

8. Florida-licensed healthcare providers will be subject to discipline by the Department of Health for violating any provisions of rules 1 through 4.

Although the majority of §790.338 appears redundant and instructs Florida-licensed healthcare providers in basic common sense, such as only recording relevant data in the medical record, and respecting a patient’s constitutional right to bear arms, §790.338 also provides that patients can refuse to answer firearm- and ammunition-related questions; that healthcare providers may be disciplined for violating what is an ambiguous statute; and that healthcare providers may not discriminate against firearms owners. The statute does not indicate that patients may simply choose not to return to a healthcare provider that harassed them, or not follow that healthcare provider’s advice.

More dangerous for licensed healthcare providers in Florida, §790.338 failed to provide any definitions, such as what constitutes harassment, while prohibiting healthcare providers from harassing their patients about firearms ownership. How does the Legislature define harassment? Is it a question, a contrary opinion, or even a statement that 1.77 deaths occur per 100,000 population in all races between birth and age 17 years, or that you actually need a gun and ammunition to have an accidental gunshot injury or death? The potential that this may set a precedent is concerning. Considering that the Florida Medical Practice Act⁵ prohibits the practice of medicine by individuals not licensed by the Florida Department of Health, and that few if any legislators are actually licensed by the Florida Department of Health, in coming legislative terms will powerful lobbies incite potentially overweight, tobacco-smoking, alcohol-consuming legislators, who exercise little, to also statutorily prohibit healthcare providers from inquiring about diet, tobacco smoking, alcohol consumption, and exercise?

Physicians challenge the new law

Along with several individual physicians, the Florida Chapters of the American Academy of Pediatrics, the American Academy of Family Physicians, and the American College of Physicians challenged §790.338 based on the First Amendment (right to free speech) and Fourteenth Amendment (right to due process: ie, deprivation of life, liberty, and property; and equal protection: ie, all people entitled to equal protection under the law) in the US District Court for the Southern District of Florida. The District Court ultimately ruled in the physicians’ favor on summary judgment and entered a permanent injunction preventing Florida’s enforcement of any of the statutory provisions of §790.338.

After weighing the evidence, the District Court determined⁶ that the Florida Legislature relied only upon anecdotal evidence and failed to rely on any studies, research, or statistics on physicians’ practices or actual patients’ experiences before enacting this statute. The District Court first entered a preliminary injunction against the State’s enforcement of §790.338 holding that the plaintiffs possessed a substantial likelihood of success; that they would suffer irreparable harm in the absence of a preliminary injunction; that the threatened injury to the plaintiffs outweighed any possible injury to the State; and that a preliminary injunction would serve the public interest.

The District Court ultimately determined that the statute impermissibly limited a healthcare provider’s free speech by interjecting itself into the doctor-patient relationship and essentially preventing healthcare providers from addressing firearms ownership as part and parcel of routine preventive care.

Ruling primarily on First Amendment grounds, because states should not proscribe speech based on its subject matter, the District Court ultimately ruled in favor of the plaintiffs and permanently enjoined Florida from enforcing the statute.

Importantly, the District Court recognized that although the First Amendment fails to prevent states from creating “restrictions directed at regulating professional speech or occupational conduct . . . [when the restrictions only] impose mere incidental burdens on speech,” Florida-licensed healthcare providers are entitled to the same free-speech protection of their opinions as any other individual in the United States.

For example, although a law may require physicians to provide information about the risks of pregnancy termination and childbirth,⁷ the law may not prevent physicians from discussing pregnancy termination and childbirth. When a legislature chooses to infringe on free speech, the issue of whether or not this infringement is permissible depends on whether the potential infringement exceeds a mere incidental burden on that individual’s free speech. Ultimately, after weighing the evidence, the District Court determined that the content-based approach to all Florida-licensed healthcare providers prohibiting firearm and ammunition inquiries exceeded a mere incidental burden and abrogated a healthcare provider’s right to free speech and entered a permanent injunction enjoining Florida from enforcing §790.338.

The State of Florida then appealed the District Court’s Order to the 11th Circuit Appellate Court, and, according to its protocol, a 3-judge panel heard the State’s appeal. This 3-judge panel of the 11th Circuit Appellate Court⁸ reversed the District Court’s ruling. The Appellate Court determined that §790.338 represented a legitimate regulation of professional conduct that codified good medical care. The panel appeared to base its decision on the argument that §790.338 was based on traditional codes of physician conduct and that it “simply acknowledge[d] that the practice of good medicine does not require interrogation about irrelevant, private matters.”

However, the 3-judge panel did not appear to give much credence to general lifestyle inquiries common to most patient histories that are used in the course of preventive care-questions such as alcohol, tobacco, and other recreational substance consumption. Also, this 3-judge panel suggested that the First Amendment was better suited as an affirmative defense used after a physician has already been accused of violating §790.338 and potentially subject to discipline.  

In response to this adverse ruling, the plaintiff physicians petitioned the Appellate Court to reconsider its ruling en banc; ie, before all the judges in the 11th Circuit and not just the more limited 3-judge panel. En banc reconsiderations generally occur before filing a petition to the US Supreme Court.

REFERENCES

1. The 2014 Florida Statutes. §790.338 Fla. Stat. Medical privacy concerning firearms; prohibitions; penalties; exceptions. Available at: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0790/Sections/0790.338.html. Accessed October 27, 2014.

2. Madenci AL, Weldon CB. United States childhood gun-violence-disturbing trends, Abstract presented at: American Academy of Pediatrics National Conference and Exhibition; October 27, 2013; Orlando, Florida. Available at: https://aap.confex.com/aap/2013/webprogrampress/Paper22761.html. Accessed October 27, 2014.

3. Centers for Disease Control and Prevention. FastStats. All injuries. Available at: http://www.cdc.gov/nchs/fastats/injury.htm. Updated July 14, 2014. Accessed October 27, 2014.

4. House Bill 155 (2011). Available at: http://www.flsenate.gov/Session/Bill/2011/0155/BillText/Filed/PDF. Accessed October 27, 2014.

5. The 2014 Florida Statutes. §458 Fla. Stat. Medical practice. Available at: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0458/0458.html. Accessed October 27, 2014.

6. Case 1:11-cv-22026-MGC. Document 80: Order granting plaintiffs’ motion for preliminary injunction. Available at: http://tjcenter.org/wp-content/uploads/2012/05/Firearmorder.pdf. Accessed October 27, 2014.

7. Planned Parenthood of Southeastern PennsylvaniavCasey (91-744), 505 US 833, 884 (1992). Available at: http://www.law.cornell.edu/supct/html/91-744.ZS.html. Accessed October 27, 2014.

8. Case 12-14009. Filed July 25, 2014. Available at: http://www.gpo.gov/fdsys/pkg/USCOURTS-ca11-12-14009/pdf/USCOURTS-ca11-12-14009-0.pdf. Accessed October 27, 2014.

9. Centers for Disease Control and Prevention. Web-based Injury Statistics Query and Reporting System, Fatal and nonfatal injury reports, 2001-2013. Available at: http://www.cdc.gov/injury/wisqars/. Accessed October 27, 2014.

Dr Levine is an adjunct professor of law, Stetson University College of Law, Gulfport, Florida. He is also managing partner and founder of the Florida Legal Advocacy Group of Tampa Bay. The author has nothing to disclose in regard to affiliations with or financial interests in any organizations that may have an interest in any part of this article.