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Oops!Docs Can Talk To Patients About Guns But Patients Can Keep Their Guns.

February 17, 2017

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Six years ago the State of Florida decided that doctors could not talk to their patients about guns. The state of Florida has become the legislative sandbox for every attempt by Gun-nut Nation to rid the country of any and all protections against the violence caused by guns. Stand Your Ground, Concealed Carry – both of these harebrained schemes came out of the Gunshine State. But the law known as FOPA (Firearm Owners Protection Act) was the craziest of them all.

doc-glocks             What made the law so crazy wasn’t the fact that it criminalized doctors who talked to their patients about guns; it was that in a state of 18 million people, the law was based on six unsubstantiated anecdotes which, as the 11th Circuit Court noted, didn’t even address the same concerns.  Which was one, but not the only reason why the 11th Circuit Court ruled 10 – 1 that the law was unconstitutional and couldn’t stand.

Throwing doctors out of the discussion about gun violence has been a major and ongoing NRA project since the medical profession first started warning about the risks of guns. Which is exactly how the Hippocratic Oath defines the role of physicians, namely, to reduce risk.  But I can’t blame the gun industry and its noisemakers like the NRA from taking an anti-doctor stand; after all, if you manufactured a consumer product which was considered by physicians to be too risky to own, you’d be up in arms (no pun intended) against those physicians too.

But what the Court said in this regard effectively stood the NRA’s argument on its head, because 10 out of 11 justices found that “there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients’ firearms or otherwise infringed on patients’ Second Amendment rights.”   And this is what the argument is all about, namely, whether any attempt to regulate gun violence or even talk about gun violence is somehow always construed as an ‘attack’ on 2nd Amendment ‘rights.’

Right now a bill is being debated in the State of Washington Legislature which would make a failure to secure guns in the home a reckless endangerment felony if an individual who, under law, cannot have possession of a firearm gets his hands on the gun and discharges it or uses it in a criminal or threatening way.  The NRA is opposed to this bill, calling it “an intrusive government legislation [which] invades people’s homes and forces them to render their firearms useless in a self-defense situation by locking them up.”

The bill does no such thing. Nor does a doctor talking to a patient about guns threaten the patient’s ownership of that gun. But if we now have a President who stands up in front of the entire nation and after he’s corrected about the size of his electoral victory repeats the same falsehood again, should we be surprised when the representatives of Gun-nut Nation continue to promote their own false claims again and again?

No doubt that when the dust settles and the smoke clears, Gun-nut Nation will come up with their own, self-fulfilling narrative about the ‘Docs versus Glocks’ case.  And I wouldn’t be surprised if the first thing they say is that the 11th Circuit is tainted because 9 of the 10 judges who supported the majority decision were appointed by gun-grabber numero uno, Barack Hussein.  But that’s nothing more than another riff on Trump-o’s attack on the ‘politicized’ judiciary, which seems to be the latest in a dwindling list of options available to the Chief Executive before he’s forced to resign.

The decision by the 11th Circuit not only puts an end to a six-year battle that erupted when the FOPA law was first announced.  It also puts a big dent in the thirty-year campaign waged by the NRA and others to keep evidence-based information about gun risk and gun violence on the margins of the public domain. This just isn’t a victory for doctors and patients, it’s a victory for the value of reasoned, public debate.

 

 

 

The 11th Circuit Creates A Fiction To Justify Gagging Florida Doctors Who Talk About Guns.

December 23, 2015

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Nobody in the GVP or medical communities (except Rand Paul) is happy with the decision by the 11th Circuit to continue upholding the Docs-Glock statute enacted in the Gunshine State.  But there was a comment in the latest decision which may, in the long run, make the argument in support of the law null and void. But before I explain why I think there may be a silver lining, I should spend a few words discussing where the case stands right now.

docs versus glocks              As you probably know, the original law was enacted in 2011 and similar statutes have been introduced but not voted in at least 12 other states.  Basically the law prohibits physicians from asking patients about gun ownership unless the physician believes that access to guns poses an immediate health risk. But by asking physicians to limit inquiries about any matter unless they have already decided that such inquiries might reveal a medical risk is to stand the entire methodology for assessing patient health on its head.

The pro-gun bunch has been trying to push medicine out of the gun debate ever since physicians first began talking about guns as risk to health.  The gun industry continues to pretend that we should ignore endless studies which show that gun ownership is linked to increases in both homicide and suicide rates; in fact, they promote the fiction that guns are a positive social element because it’s an armed citizenry that protects us from violence and crime.

Much of the latest decision upholding the Florida law simply repeats the rather dubious claims about 2nd Amendment rights that littered the original 11th Circuit majority decision handed down last year.  In that decision, the two-to-one majority hearing the case decided that asking a patient whether he or she owned a gun put the physician in the position of deciding whether that particular patient should have guns at all; hence, a restriction on the Constitutional right to own a gun.

This seems to me and to most scholars who have examined the decision to be a stretch.  And not just a little bit.  After all, Florida law doesn’t prohibit doctors from asking patients if they engage in sex, even though sexual activity is protected under the Constitutional rights to privacy that were enunciated in Roe versus Wade. But the reason that the doctor’s 1st Amendment right to ask any and all questions is trumped by the 2nd Amendment is really based on the fact that “the balance of power between doctor and patient will often make a patient feel as if he has no choice but to listen and answer a doctor’s questions.” Hence the 11th Circuit is protecting the patient who otherwise might feel vulnerable or threatened in asserting his 2nd Amendment rights.

Judge Gerald Tojflat (who wrote the majority decision) was fresh out of law school in 1963 when the Nobel prize-winning economist Kenneth Arrow published a paper in which he claimed that health care could not be understood as just another form of market economics because of the special relationship that existed between the seller (doctor) and purchaser (patient) of health products, procedures and advice.  Basically Arrow argued that patients could not exercise market decisions when choosing a doctor because of the physician’s superior knowledge and special skills.

That was 1963.  This is almost 2016. I don’t know which planet Judge Gerald Tjoflat inhabits, but he’s simply out of step with modern times. The idea that the average patient walks into a doctor’s office believing that he can’t or won’t speak up at every possible moment during a medical exam may have been typical of the doctor-patient relationship when Tjoflat was just starting his legal career, but it sure as hell isn’t true today.

Between the internet, alternative medicine, patient-centered care, patient’s bill of rights, and HIPAA, Judge Tjoflat’s notion that today’s patient feels vulnerable and helpless in relation to his physician is a relic of the distant past.  But he also probably believes that guns protect us from crime.

 

Another Gun Violence Expert Tells Physicians How To Do Their Jobs

August 22, 2014

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While editorial opinion seemed to be running against the recent 11th-District ruling that reinstated Florida’s gag law, there were some notable exceptions, chief among them being an op-ed that appeared in the Pensacola News Journal written by Marion Hammer.  As a career NRA lobbyist, this lady has a long and courageous history fighting for the rights of gun owners in the Gunshine state, as well as for standing up for the oppressed in general, having been responsible not only for Florida’s concealed-carry law but also as the architect of Florida’s Stand Your Ground law, the first of its kind in the U.S.

Marion Hammer

Marion Hammer

Hammer begins her diatribe by reminding readers that the real agenda of physicians is to rid the country of guns, and she lifts anti-gun statements from the AAP website to support her case.  She then goes on to remind physicians that if they “genuinely wish to offer safety information [they] can simply hand out firearms safety and safe storage brochures to all patients. Interrogating parents and children about what they own or have in the home is not only an intrusion but is a violation of privacy rights.”

Now I know that the press is very sensitive to anything that even remotely smacks of censorship, hence, if someone wants to express their opinions the editorial policy usually means that the writer can say more or less anything they damn well want to say.  But if Hammer thinks she’s presenting anything other than a total fiction about the role and responsibilities of the physician in counseling patients, then either her own physician never went to medical school, or she simply doesn’t have the faintest idea about what physicians actually do.  Her statement that doctors are violating privacy by inquiring about items in the home is a mind-boggling distortion of the doctor-patient relationship and I only hope that she has the good sense to avail herself of medical care that’s a little more aware of the requirements of the Hippocratic Oath than she seems to be.

In a way I can’t blame her for promoting a vision of medical care that’s so at odds with the reality of doctor-patient relationships, because there’s even a physician out there named Robert Young, who basically said the same thing in an op-ed piece published by the Sarasota Herald-Tribune. Like Hammer, Dr. Young also believes that physicians should limit their concern about gun ownership to handing out gun safety brochures developed by the NRA, whose gun-safety program for children, Eddie Eagle, has never been shown to have any positive safety results at all.

I’m not surprised that Ms. Hammer would follow Dr. Young’s lead in advocating the distribution of gun safety materials to patients.  After all, she’s a lobbyist for the NRA and all their training courses emphasize safe use of guns.  On the other hand, the NRA avoids the issue of safe gun storage like the plague, because the last thing they would endorse are mandatory laws requiring gun owners to lock away their guns.   After all, if guns are locked away to keep them from the kids, how will the “good guys” with the guns stop the “bad guys” with the guns?

Physicians need to ask patients if they lock away their guns for the same reason they ask patients whether their children are constrained while sitting in the car.  Unlocked guns are a health risk just like unlocked seat belts, and if Marion Hammer wants to dispute the studies which link gun ownership to higher levels of child mortality and morbidity, she’s also has the Constitutional right to promote the idea that the moon is made out of cheese.

 

 

 

 

Why Should Doctors Talk To Patients About Guns? Let The NRA Do It.

August 14, 2014

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When the 11th Circuit re-instated the Florida gag law on physicians talking to patients about guns I knew that sooner or later we would hear from Timothy Wheeler and his gun-promoting group which believes that 19,000 gun suicides, 11,000 gun homicides and 50,000 (or more) intentional gun injuries each year shouldn’t concern physicians at all.  Wheeler is the doctor who began promoting the idea that doctors who inquire about gun ownership are their patients’ worst enemies, and his organization is rolled out by the pro-gun lobby whenever they need additional ammunition to keep America from adopting a common-sense approach to the issue of gun violence.

Wheeler’s organization, for which his claim of having thousands of members has never been verified in any way whatsoever, has just launched a small campaign to support the Florida gag law, at the same time that a coalition of medical associations and advocacy groups are going back to the 11th Circuit to ask the entire court, en banc, to overturn the recent ruling.  Which is exactly why Wheeler and his buddies in the gun-blogging community are trying to tilt public opinion the other way.

docs versus glocks                In the interests of full disclosure, I should state that I am married to an attending pediatrician, and am also a member and certified gun trainer for the NRA.  I have no issue with private ownership of guns but I take personally these indecorous attacks on physicians who are required to speak with patients about any matter which they feel might pose a medical risk, particularly involving something as potentially lethal as a gun.  The shabby attempt by physicians like Wheeler to pretend that guns do not constitute a health risk reminds me of the pathetic charades conducted back in the 1950’s by a few physicians and scientists who publicly disavowed any link between smoking and cancer.

Of course Wheeler and his cronies, in this case a psychiatrist named Robert Young, don’t want their audience to believe that they are against safe use and storage of guns.  After all, everyone’s in favor of safe gun use these days,  just ask the NRA and they’ll tout their gun safety program, aka Eddie Eagle which has “reached more than 26 million children in all 50 states.”  The same website that contains this information about Eddie Eagle also states that the NRA is “not affiliated with any firearm or ammunition manufacturers,” which is, simply put, a lie.  But Dr. Young seems oblivious to the requirement in his own medical profession to base clinical decisions and strategies on evidence-based information, since he advises his medical colleagues to use the Eddie Eagle handouts in contacts with patients who might or might not own guns.

I saved the best part for last.  Although Dr. Young believes in educating children in safe behavior around guns, he also wants to make sure that the safety of children is balanced out by the requirements for self defense.  And I quote:  “Even the sound practice of storing guns and ammunition in separate, locked places isn’t always right if they are intended to be used for emergency protection.”

This guy’s a physician?  This guy took the Hippocratic Oath which requires him to counsel patients about risks to their health?  There is not one single piece of credible research which shows that keeping a loaded, unlocked gun around the house creates protection from crime that outweighs the risks of injury or death from the existence of that gun.

People like Robert Young and Timothy Wheeler find media outlets for their destructive ideas because we really are committed to the idea of hearing “both sides” in the public policy debate.  But I don’t think that there are two sides when it comes to discussing a health issue which claims 80,000 or more victims each year.  Unless, of course, you’d rather believe that mortality and morbidity at those levels has nothing to do with health at all.

Docs Versus Glocks – Round Three And Not Yet Finished

July 28, 2014

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Remember the Thrilla in Manila?  We’ve got Docs Versus Glocks and Round 3 has just come to an end.  The epic battle began in 2011 when the Florida legislature passed a law prohibiting physicians from inquiring about ownership of firearms unless the question was “relevant to the patient’s medical care or safety or the safety of others.” [All quotes from the decision posted on the 11th Circuit website.]  That was Round 1.  The law was then challenged in Federal District Court and overthrown by Judge Marcia Cooke who issued a permanent injunction because it violated physicians’ 1st Amendment free speech by curbing the ability of the doctor to freely inquire into situations that might impact a patient’s health. That was Round 2. The State of Florida then appealed to the 11th Circuit which declared the law constitutional last week. Interestingly, the Circuit Court did not order Judge Cooke’s injunction to be lifted, which means that as of the end of Round 3, it’s something of a tie.

I’m no constitutional lawyer, or any other kind of lawyer for that matter, but I have been following this case very closely because it’s part and parcel of the NRA’s attempt to push physicians out of the discussion about guns, a campaign they have been effectively waging since 1996.  That year Congress removed funding for gun research from the CDC budget, a prohibition that was later spread to other federal research agencies and remains in effect to this day.  And even though a meeting of the Institute of Medicine following Sandy Hook identified areas of gun research that should be pursued, there’s scant (which means ‘no’) chance that such funding will appear.

glock 23                The ‘official’ reason that the NRA is against research into gun violence is that the research is being carried out by public health and medical scholars who use such research to advance an anti-gun agenda.  And if by ‘anti-gun’ the NRA means any form of gun control, they happen to be right.  The basic public health research on guns shows again and again that the presence of a gun heightens the possibility of homicides, assaults and suicides, findings that the NRA says are contradicted by the research of people like Gary Kleck and John Lott whose research allegedly proves that more guns equals less crime.  But no matter how you shake or bake the data, it’s simply impossible to deny the intuitive judgement of the novelist Walter Mosley that “if you carry a gun, it’s bound to go off sooner or later.” And if the bullet from that gun hits another person, there’s only one group of professionals whose response we really trust.

. The 11th Circuit majority found the Florida law constitutional because they believe that the professional-client communication doesn’t necessarily warrant 1st Amendment guarantees.   The law, according to the majority, only prohibits physicians from “inquiring about a private matter irrelevant to medical care.”  But what the majority avoided in its decision was spelling out who has the authority and obligation to decide the issue of relevancy, which, according to the dissenting judge in this case, is the responsibility of doctors themselves.  The dissent noted that gun violence is considered a public health issue by virtually every medical society, and physicians are performing their “chosen role” by informing their patients about risks that come with the ownership of guns.

I was in the audience at Madison Square Garden  when Ali won the Thrilla in Manila because he just outlasted Smokin’ Joe.  I think that Docs Versus Glocks will end the same way because no matter how hard the NRA keeps hammering, we value the competence and  expertise of physicians and we ultimately expect them to decide what’s best for our health.  The majority in the 11th Circuit recognized that “the patient must place his or her trust in the physician’s guidance,” which means listening to what the doctor says even if even it’s something we don’t want to hear.  And by the way, there’s no patient in America who ever has to do what the doctor says.

Docs Versus Glocks – Round 2 About To Begin

March 28, 2014

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In 2011 the Florida legislature passed a law to protect the state’s gun owners from having to divulge any information about gun ownership during the course of a medical exam.  The law, which became known as ‘Docs Versus Glocks,’ soon became one of the main poster children of the pro-gun, anti-gun argument that really heated up after the carnage at Sandy Hook.  On one side stood the NRA, which touted the law as a defense of 2nd Amendment rights; on the other side was Brady and the medical community which viewed the law as interfering with the doctor’s right to know.  The law was struck down in 2012 by a Federal District Judge and was immediately appealed by the Gunshine State to the 11th Circuit which held a hearing in July, 2013.  Everyone’s expecting a ruling soon so I thought I would take the opportunity to discuss the case before all the real experts get into the act.

logomdThe law doesn’t completely deny physicians the ability to talk to patients about guns.  What the law actually says is that a physician “shall refrain” from inquiring about firearm ownership unless the practitioner “in good faith believes  that this information is relevant to the patient’s medical care or safety, or the safety of others….” Yet despite this caveat, the medical community attacked the law, declaring that its language would have a chilling effect on the ability of physicians to talk to their patients about all kinds of safety and health issues, not just about guns.  The District Court sided with the docs, calling the law a “legislative illusion” because there was no connection between questions asked about gun ownership and protecting the 2nd Amendment right to own guns.

logo glockWhile arguments over gun control at the federal level get all the headlines, it’s what happens at the state and local levels that really determines whether or not gun owners can get or keep their guns.  The Sullivan Law has been in existence since 1908, it’s almost impossible to own or carry a gun in New York City and 2nd Amendment ‘rights’ can go fly a kite.  In total dollars the NRA gives out less than half a million to state-level candidates and parties, but this is 30 times more than gun control groups give to the same races.  And in a state-level race where 200 or less votes can make the difference, getting your hands on an NRA phone list may carry the day. I’m not sure that the Florida legislators who voted for the gun bill knew or even cared what the law said.  But they didn’t want to be ‘scored’ by the NRA in the next election because they voted the wrong way.  Before the Tea Party showed up it really didn’t matter whether a Republican toed the line on gun issues because the NRA wasn’t about to support any Blue candidates anyway.  But now that a growing number of Republican office-holders face primary challenges from the Right, everyone on the Red side of the aisle is listening to the NRA.

As for doctors, it took them nearly a century after 1850 to become a self-regulating profession whose guidelines for practice and behavior were largely established and maintained by themselves.  And even though their professional autonomy has of late come into conflict with the market imperatives of insurors and other for-profit enterprises, they still retain sovereignty over defining how to deliver their services at the point that such services matter most, namely, in consultations with patients.  The fact that the Florida legislature didn’t bother to ask their own state Health Department for a recommendation on physicians talking to patients about guns tells me that the motive behind the law had nothing to do with concerns about the delivery of health care at all.  For that matter, it wasn’t that the law threatened doctors who talked to their patients about guns per se, it was the fact that any law which infringes on the professional autonomy of physicians to communicate with their patients threatens the validity of the Hippocratic Oath.

Let’s hope that the 11th Circuit understands what this argument is really all about.

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