Wollschlaeger v. Florida

[Al Norris]

This whole thing has been a long time in coming. Read the following very closley, please.

The Case: Wollschlaeger et al v. Scott et al
Case Number: 1:2011cv22026
Filed: June 6, 2011
Court: Florida Southern District Court
Office: Miami Office

The Plaintiffs: Bernd Wollschlaeger , Judith Schaechter , Tommy Schechtman , American Academy of Pediatrics, Florida Chapter , American Academy of Family Physicians, Florida Chapter and American College of Physicians, Florida Chapter, Inc. (various attorneys from the Brady Center)

The Defendants: Rick Scott, Kurt S. Browning, Frank Farmer, Elizabeth Dudek and Lucy Gee

Justia Info: http://dockets.justia.com/docket/flo...v22026/380612/
Docket: http://www.archive.org/download/gov....12.docket.html

As you may know, Florida recently passed a law entitled, “An act relating
to the privacy of firearm owners” ( or as the Brady group calls it, the “Physician Gag Law”). The aim of the legislation was to prevent physicians from using guns as a political tool and morphing guns (and the resulting violence) into a disease.

Back in 2001, Dr. Miguel A. Faria, Jr., who was then eiditor-in-chief of the Medical Sentinel, the official journal of the Association of American Physicians and Surgeons, published his article expressing the dangers of the AMA, the American Academy of Pediatrics, the American College of Physicians and the American Academy of Family Physicians, politicizing their anti-gun beliefs when using their positions of authority with their (vulnerable) patients. That article (from 2001) is here.

Has this changed?

In 2009, Dr Timmothy Wheeler was head of DRGO (Doctors for Responsible Gun Ownership) wrote an article for the Clairemont Institute, Stating that nothing had changed. That article is here. Perhaps you might remember DRGO and The Clairemont Institute? Most recently (for those that are following 2A court cases) they filed an amicus brief for the plaintiff/appellant in Prieto v. Gore.

Now we can look at the lawsuits announcement at Reuters: http://www.reuters.com/article/2011/...75572Q20110606. This gives us the following:

But the plaintiffs -- three individual doctors and the Florida chapters of the American Academy of Pediatrics, the American Academy of Family Physicians and the American College of Physicians ...

Aren't these the same groups identified by Dr. Faria in the 2001 article?

This isn't a free speech case. It is a case of ideological activists, bent on getting "gun violence" classified as a disease. If they can't legislate them away, if they can't get the Courts to prohibit them, then they will take our guns away because it's a public health problem that trumps everything else. Period. That is their (the physicians) stated goal. And the Brady's don't much care how they get there, as long as they do.

There is much more at stake here than some Doctors supposed right to free speech. While this lawsuit is framed as a 1A (Free Speech) issue, this is an indirect attack on 2A rights that has been building since the mid 90's.

Did I overstate the problem above? Take a look at the Factual Background heading:

A. Necessity of Safety Counseling as Preventative Medicine

Unless the Doctor is also a qualified firearms trainer, how is s/he qualified to "counsel" anyone on firearms safety, let alone pass it off as "preventative medicine?"

Read the Complaint, here.

(simulposted at MDShooters and TFL)

[Tom Servo]

This isn't a free speech case. It is a case of ideological activists, bent on getting "gun violence" classified as a disease.

Garen Wintemute mined some serious gold in the 1990's when he decided to turn gun control from a political issue to one of public health.

Of course, according to the CDC National Vital Statistics System (NVSS), 57 children in the country were killed in the United States in 2006 by negligent discharges. Only 9 of those fatalities were from hanguns.

Also, bear in mind that many suicides are reported as "accidents."

If these doctors were really concerned with public health, their time would be better spent preventing adverse drug reactions and surgical errors, which kill far more people than guns.

(For raw data, the actual report you want is R00.1-Y89.9 [pdf]. The relevant statistics begin on page 4515 (727 in the browser).)

[NJgunowner]

Last time I checked the the first amendment gave people the right to vocalize their ideas and issues, it did not give them the right to pry into peoples lives and demand answers to further your own agenda.

[Johannes_Paulsen]

Just an observation, though - if a doctor asks a question, and you feel uncomfortable answering it, why would you answer it?

I dislike the impulse to pass laws to cure every last of society's ills.

[carguychris]

IMHO given that we are moving towards a national electronic medical records database, this may be one of the opening salvos in a contentious battle for privacy rights that goes well beyond the 2A.

For instance, I've seen references to several studies proving that people with criminal records are more likely to engage in smoking, binge drinking, drug use, and other medically risky acts. (Given the personalities of the crooks I've met, this comes as no real surprise. ) Therefore, does one's doctor have a right to know that one has a criminal record? If one tells the doctor in the course of a routine visit, what happens to this information? Who has a right to look at it? Will every medical professional who looks at one's records until the end of time be able to see that one was arrested for drug possession in 1996?

Just an observation, though - if a doctor asks a question, and you feel uncomfortable answering it, why would you answer it?

Doctors are authority figures. Many people deeply trust their doctors and assume that their personal information will be kept confidential. Most doctors ARE trustworthy. The question becomes, what laws should be necessary to maintain that trust?

[zippyfusenet]

I have read that there was one case where an officious doctor refused to treat a patient who would not answer intrusive questions about guns in her home. That doctor told that patient to find another doctor.

My own doctor is pro-2A. He has armed himself for self defense.

Some doctors may have a God complex, but so do some plumbers. I don't think doctors as a group are necessarily pro- or anti-2A.

In the end, we can't legislate away *holes in any field. We will do better to educate doctors than to legislate them.

[Patriot86]

Unless my mental state was in question or I exhibited some symptoms of a disease or condition that could be brought on by using a firearm, IMO my doctor has no right to ask detailed questions about if I own firearms. Moreover, the doctor IMO does not have the right to record such things. As a matter of fact, if my doctor were to ever insistently pry into such matters that would be the last time I ever saw that physician. I am no doctor but I do not see how firearms ownership has anything to do with with the functions or responsibilities of a doctor.


@carguychris I think you hit the nail on the head.

[GoOfY-FoOt]

I guess that there is no end to the conceit of a physician...

Perhaps they believe that they are qualified to give advice on, enlistment in the military; what to do when the brakes begin to fade on the family car: and, just how sharp should a kitchen knife be?

How many of those little anti-slip pads do they recommend for the bottom of my shower?
Should I shave without a mirror?
What shelter would you advise before taking the Lord's name in vain?


GMAB...

[Dead]

I have a text book for school that notes Guns being the LEADING cause of accidental deaths for children. For some odd reason the citation for this data is omitted.

I would really like to see the law pass prohibiting doctors (and other health care workers) from asking about guns.

By the way as others have pointed out you can refuse to answer any questions, and well anything the doctor or other health provider wants to do. If you refuse and they proceed however...

[BGutzman]

The question from the doctor would result in the following words...

"Your fired and I will be seeking a new care provider from a different hospital"

[Tom Servo]

I have a text book for school that notes Guns being the LEADING cause of accidental deaths for children. For some odd reason the citation for this data is omitted.

Because it's blatantly untrue. In fact, the number of accidental deaths among children from firearms is so small that the AMA wrote it off as statistically irrelevant in the early 2000's.

[Johannes_Paulsen]

Originally Posted by carguychris

Doctors are authority figures. Many people deeply trust their doctors and assume that their personal information will be kept confidential. Most doctors ARE trustworthy. The question becomes, what laws should be necessary to maintain that trust?

Seriously? Authority figure or no, what is so hard about not answering a question you don't feel comfortable answering? Like BGutzman said - vote with your feet, and your wallet.

Regarding patient confidentiality, I recommend Rebecca Skloot, The Immortal Life of Henrietta Lacks for a discussion of medical ethics and patient rights.

[LoneStranger]

Or if you really wanted to send a message and jerk a lot of stuckup Medical People by the short hairs what should be done is eliminate any confidentiality for Dr./Patient communications. Make every Medical Person inform every patient that "Anything said can and will be used by any agents/agencies at their discretion against you."

Of course you should make sure that there is no immunity for Medical Personnel following directives or for Agents/Agencies, as individuals, using the information or issuing directives.

If any person or Medical Personnel have any qualms about this statement then point out that the problem is theirs to handle. Once you make the problem theirs to own with no cover allowed you will be surprised.

[Al Norris]

The Brady's are bent out of shape, because the NRA has petitioned to intervene.

The docket is here.

Only items 36 and 38 have been RECAPed (see docket link above)- which are the items that have the Brady's pantie in a wad.

[vranasaurus]

The only time a doctor should be concerned about the guns you own is if he believes you, by virtue of a mental illness, are a danger to yourself or others.

If I go see my doctor about knee pain, absent an obvious gun shot wound to my knee, guns are completely irrelevant.

It's sad that we actually need a law to prevent doctors from asking patients about things completely unrelated to treatment. Doctors are busy people, I would think they wouldn't want to waste their time.

[Don P]

For those interested you can sign up here to get a weekly update of bills put before the Governor of Florida,
[email protected]
Click on a bill number and get the info there

[Top_Notch]

The Brady's are bent out of shape, because the NRA has petitioned to intervene.

The are. Just to keep tabs and since it's free, I am a member of this group (and numerous other leftist groups) and receive regular email updates. (If anyone ever monitors my email they'd think I'm a Socialist bordering on Communist ) The Brady Bunch see it as a first amendment issue. What strikes me is they seek to outlaw the Second.

Apparently, the Constitution only applies if it fits your agenda.

[Eghad]

The Brady lawyer is full of it...the gag law no more violates First Amendment rights than HIPPA does

Did the Brady folks thing the NRA was going to sit this dance out after they worked hard to get the law passed.

Simply put if the doctor sticks to his medical procedures in dealing with you then he or she has no biz asking about what you own or do not own. Then he does not have to worry about the gag law.

[KyJim]

I'm going to disagree to a large extent with those posting here. It is undeniable that the statute directly infringes on the First Amendment right of the doctors to discuss matters with their patients. It does not matter if the doctors discuss pure politics and tries to persuade their patients to vote for a candidate whom he or she endorses. That's the nature of free speech. Likewise, asking questions about firearms in the home, which at least is arguably safety related, is free speech. Even if driven by purely political reasons, it would remain protected by the First Amendment. In fact, political speech is given the greatest protection the First Amendment affords. As I understand the statue, it prevents a physician from asking questions about firearms in the home. I have no doubt this will be declared unconstitutional.

The closer question involves the statutory prohibition against harassing or discriminating against patients on the basis of gun ownership. Since there is now an unquestioned right to own firearms under the 2A and the state has an interest in protecting that right, prohibitions from discrimination or harassment would seem to be allowable. It does not prohibit free speech in any meaningful manner. The question is whether the statutory language is too broad and too vague; that's what the doctors claim. Since the protections do not directly infringe on a First Amendment right, the bar is pretty high for the physicians to clear. I think this is an area that will need development and argument in the litigation.

There is also the question of whether a court can strike down one part of the statute while leaving another portion intact. They will do this if the two are not so intertwined as to make the whole statute unworkable in absence of the unconstitutional portion. This is a rough paraphrase of the standard as I don't recall the exact phraseology.

[Eghad]

I don't pay my Doctor to discuss if I own firearms. I pay my doctor to treat me. What I own or do not own is not related to my medical treatment. Since I am seeing a physician I should have a reasonable expectation of privacy for anything that is not an illegal act. These Brady folks are just looking for an in....the gag law was right to close that door. The Brady folks are barking up the wrong tree and it is going to bite them in the butt. If they are saying that owning guns is related to medical issues. I as the patient have a reasonable expectation of keeping my medical information PRIVATE! as long as I am doing nothing illegal.

[vranasaurus]

No doctor has a right to practice medicine. Doctors are licensed by the state and subject to the restrictions of the state.

The state has the authority to impose all kinds of restrictions regarding the conduct of doctors when caring for patients.

The penalties for violation shouldn't be prison or fines but suspension or revocation of their medical license.

[Johannes_Paulsen]

Originally Posted by vranasaurus

No doctor has a right to practice medicine. Doctors are licensed by the state and subject to the restrictions of the state.

Kind of like...concealed carry of a firearm, eh?

I'd respectfully suggest (again) that people rushing to pass laws to restrict the behavior of certain people that they find distasteful should reconsider. The laws passed tomorrow may be restrictions on behavior or conduct that you prefer to engage in.

And just because the state might have the constitutional power to pass a given law doesn't make the law wise.

[Eghad]

If a doctor finds it distasteful to keep my medical information private then perhaps he should find another profession. I have to work with medical records and personal medical information in my job. I have no problem complying with HIPPA laws of which I have to get certified in once a year. I see no problem with the law the state of Florida passed.

[Webleymkv]

I'm going to disagree to a large extent with those posting here. It is undeniable that the statute directly infringes on the First Amendment right of the doctors to discuss matters with their patients. It does not matter if the doctors discuss pure politics and tries to persuade their patients to vote for a candidate whom he or she endorses. That's the nature of free speech. Likewise, asking questions about firearms in the home, which at least is arguably safety related, is free speech. Even if driven by purely political reasons, it would remain protected by the First Amendment. In fact, political speech is given the greatest protection the First Amendment affords. As I understand the statue, it prevents a physician from asking questions about firearms in the home. I have no doubt this will be declared unconstitutional.

The problem here is that First Amendment Rights, just like almost all other rights, are not unlimited. What this is really about is physicians abusing their position of authority in order to further their own political agenda. People get up in arms, and rightly so, about teachers attempting to indoctrinate students with their own political agendas and this really isn't all that dissimilar. Doctors do indeed hold an air of authority, I've seen many people follow rather ridiculous advice simply because it came from a doctor's mouth.

Now, before I'm flamed for attacking doctors, let me say that just like everyone else, there are very good doctors and there are very poor ones. I have a bit of medical background as my stepfather is an MD, my mother is a nurse, and my father is a respiratory therapist while I myself am a nursing student. My stepfather is, I feel, a good physician and his opinion on medical matters carries great weight with me. He himself will tell you, however, that he knows very little about firearms or firearm safety (his only expertise in that area is the treatment of gunshot wounds since he's spent the last several years as an Emergency Room physician) and that he is not qualified to offer authoritative advice on such matters.

As Al Norris pointed out, a physician is only qualified to offer authoritative firearms safety advice if he or she is also a certified firearms safety instructor. I would venture to guess that the vast majority of physicians do not hold such a credential and as such, counselling patients on such matters is, outside of a few very limited circumstances, outside the scope of their practice IMHO.

One of the very first things that I was taught in nursing school is that one of the fastest and surest ways to have your employment terminated and lose your professional license is to operate outside your scope of practice. Medical as well as other licensed professionals have a specific scope of practice for a very good reason: their training is limited to a fairly specific area of expertise. To offer advice outside of what one has been schooled and trained for is a bad idea at best and downright dangerous at worst. Even amongst physicians, scope of practice has its limits. A pulmonologist would not recommend treatment for a GI condition just like a neurologist would not recommend treatment for a cardiovascular condition. Even an internal medicine doctor that treats a broad range of disorders will, if responsible, only take a course of treatment so far without consulting a specialist for that particular type of disorder.

As I said before, no one is attempting to restrict the political rights of physicians. A physician may still belong to whatever political organization he or she wishes to and may exercise his or her First Amendment rights just like anyone else. What a physician should not be able to do, however, is to utilize his position of authority in an attmept to force his political beliefs on others and that is what this law is really about. First Amendment rights are one thing, but exploiting a professional license and the authority that comes with it to further a political agenda is another issue entirely.

[USAFNoDak]

Answer the doctors question with a question of your own.

Doctor:"do have any firearms in your home?"

"Why do you want to know that Doc? So that when I say "NO" you can tell one of your criminal friends that it's safe to break in to my house and rob me?"

That ought to get a reaction out of them.