Fla. lawsuit: Can doctors ask patients about guns?

July 13, 2011 - 5:14 PM

MIAMI (AP) — Doctors in Florida are fighting a first-of-its-kind law requiring them to have a legitimate safety concern before they start asking a patient about guns.

The physicians contend the new law is too broad and they should be free to ask patients and parents about firearms in the house to make sure people know how to keep them safely locked away. Doctors routinely offer similar advice about other household risks, from the dangers of tobacco use to swimming pools.

Gun rights supporters who pushed for the new law believe questions about gun ownership are an invasion of privacy, and say some people have been dropped by doctors simply because they refused to talk about firearms.

The law, signed by Republican Gov. Rick Scott, took effect June 2. It forbids doctors from inquiring about guns unless the information is "relevant to a patient's medical care or safety, or the safety of others."

Doctors' groups representing about 11,000 physicians in Florida immediately sued, calling on a federal judge to block the law. They say the law is already having a chilling effect on meaningful conversations about firearms with patients, which professional medical organizations have for years advocated as good practice. Many patient questionnaires ask about gun ownership.

"Making sure patients understand the risks around them is a critical part of a doctor's mission," Douglas Hallward-Driemeier, an attorney for the physicians' said Wednesday during a court hearing on the lawsuit.

U.S. District Judge Marcia Cooke didn't issue a ruling but asked skeptical questions of the doctors.

"What's relevant about asking about my gun when I came in with a cold?" said Cooke, a 2004 appointee of President George W. Bush. "Maybe it's the other way around. Maybe the questionnaire is overbroad and not the statute."

The judge noted the law allowed for exceptions. People with mental health problems, for example, could be asked about owning guns.

The Florida attorney general's office says doctors are misreading the law. They argue it protects patients from discrimination or harassment and reaffirms a patient's right to refuse to answer. It also prohibits doctors from dropping patients because they own a gun.

"It does not prohibit a conversation about firearms between doctors and their patients," said Jason Vail, an assistant state attorney general.

Doctors are worried about curious children finding weapons around the house. As recently as May, a 3-year-old South Carolina girl found the family's loaded handgun on a windowsill and shot herself to death.

"What if a family refuses to answer the question about guns and a kid gets killed?" said Dr. Lisa A. Cosgrove, a pediatrician in Merritt Island who added that she has a concealed weapons permit. "Who is responsible then? You tried your best to ask, but my heart is going to be crushed."

The issue found its way to the GOP-controlled Florida Legislature after what is known as the "Ocala incident" took place in 2010, according to the state's response to the lawsuit. In that instance, a young mother was dropped from a doctor's practice solely because she refused to answer questions about firearm ownership. Similar cases came to light as lawmakers debated the measure.

One legislator said he was told about "a mother who was separated from her children during an office visit while a pediatrician interrogated them" about guns, according to the state's filings.

Emotions were running so high during the debate the legislation initially included a possible five-year prison sentence and fines up to $5 million. The punishment was eventually scaled down to disciplinary action by the Florida Board of Medicine, including a loss of a doctor's medical license, and a possible $10,000 fine.

Doctors are worried any patient who takes offense to a gun-related question could haul them before the board.

"It's all in the eye of the beholder, whether it's harassment or not," said Hallward-Driemeier, the doctors' lawyer.

Gov. Scott said Tuesday that gun ownership rights were paramount.

"I believe in the Second Amendment. I believe the citizens have a right to bear arms," the governor said. "I believe that we should be able to lead our lives without people intruding on them."

Other supporters believe it's time to rein in doctors and professional organizations they claim are hostile to guns in general.

"Gun owners can rest assured that doctors who ask them about the subject and record their answers are motivated by a good faith belief that the information is relevant to the patient's care and well-being, and not by an ideological or other non-medical agenda," the National Rifle Association said in court documents. "Their patients have an equal right to hold contrary views and to be protected from harassment."

Brady Center attorney Daniel Vice said no other state has such a broad prohibition on what physicians can say about guns.

"This isn't about the Second Amendment. It's about the First Amendment," Vice said.

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Associated Press writer Laura Wides-Munoz in Miami contributed to this story.

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