Doctors ask court to lift restrictions on gun questions in examine room
By Jay Weaver
Thursday, July 14, 2011
http://www.tampabay.com/news/courts/doctors-ask-court-to-lift-restrictions-on-gun-questions-in-examine-room/1180360
MIAMI — Thousands of doctors who say they've been gagged by a new state law banning their discussion of gun ownership with patients urged a federal judge Wednesday to stop enforcement of the statute — legislation pushed by firearm advocates and signed into law last month by Gov. Rick Scott.
U.S. District Judge Marcia Cooke, who is expected to decide on the doctors' petition for a preliminary injunction later this summer, peppered lawyers with questions about the controversial measure. The lawsuit, an ideological battle between advocates of free speech and the right to bear arms, has been dubbed "Docs vs. Glocks."
"What I need to determine, is the legislation itself an unconstitutional burden on speech?" Cooke said during a Miami federal court hearing. "What can't you do now that you could do before?"
Lawyers representing pediatricians and other doctors told the judge that the physicians have had to impose "self-censorship" on health-screening questionnaires and verbal exchanges with patients, because of fears they could face high fines or lose their licenses if they warn families about the risks of keeping guns in homes or other places.
"The state is holding a sword above their heads," said Douglas Hallward-Driemeier, a Washington, D.C., lawyer representing the doctors' groups. "This is constitutionally impermissible."
But attorneys for the state of Florida countered that the new law does not prohibit physicians from talking with patients about gun ownership, as long as the discussion is "relevant" to an actual concern over safety.
"This statute is carefully crafted so it doesn't interfere with the professional judgment of the practitioner," said Jason Vail, a lawyer with the Attorney General's Office, representing top Florida health officials and the Board of Medicine. "It's intended to provide the widest latitude possible to the medical practitioners."
The Republican-controlled state Legislature adopted the law this spring after an Ocala couple complained that a doctor asked them about guns and they refused to answer. The physician refused to see them anymore.
The legislation was pushed by the National Rifle Association, which tried to intervene in the doctors' lawsuit. But the judge denied the powerful lobbying group's request, saying the state could adequately defend itself. Cooke, however, allowed the NRA to file a "friend of the court'' brief.
Lawyers for the Washington-based Brady Center to Prevent Gun Violence are also involved in the case, representing the doctors' side.
The law says doctors and other health care practitioners "shall respect a patient's right to privacy and should refrain" from asking about gun ownership or whether people have guns in their homes. But the statute also says physicians may ask about guns if they believe in "good faith" that the information is "relevant" to a patient's medical care or safety.
But the law doesn't spell out those acceptable circumstances, leading lawyers for the doctors to say it is so "vague" that they could be vulnerable to patient complaints filed with the Board of Medicine.
Two Miami-Dade physicians — Bernd Wollschlaeger, a family practitioner in North Miami Beach, and pediatrician Judith Schaechter of the University of Miami School of Medicine and Jackson Memorial Hospital — said in court papers that they have discontinued questioning patients about guns on standard health-screening forms. In fact, Schaechter said that because of the law, her employer required some 1,400 UM doctors to remove references to guns on the standard questionnaire form.
The doctors expressed particular concern about the welfare of children, saying it has become tragically commonplace for one child to kill another accidentally with a parent's unsecured weapon.
But the two doctors, who are plaintiffs in the lawsuit, said the new law has effectively muzzled them and other physicians from delving into that aspect of a patient's history.
Lawyers for the doctors' groups said that the risk of a patient filing a formal complaint with the Board of Medicine is too great. The board has the authority to issue a $10,000 fine and revoke a physician's license for any violation of the law.
"It's a professional death penalty," said Miami lawyer Dennis Kainen, who is part of the doctors' legal team.
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