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Legal battle pits part of medical profession against gun-rights advocates

Four years ago, an experienced gun owner in Pembroke Pines named Reynaldo Gonzalez made an exception he will forever regret.

His 15-year-old daughter, Yamel Trigo, begged to show off his guns, usually locked away except when Gonzalez went to the range, to a visiting teenage cousin. Out came the guns and a camera, Yamel recalls. The cousin posed with a .22-caliber rifle, which Yamel's dad thought was unloaded.

The cousin put her finger on the trigger — something safety-minded gun owners know never to do unless you mean to fire. The rifle went off. The bullet hit Yamel in the neck and left her a quadriplegic.

Cases like Yamel's, in which kids are shot accidentally, are hardly new, but now they're at the core of an unusual legal battle pitting a portion of the medical profession against some powerful gun-rights advocates and the state of Florida.

At issue is a new state law, the first of its kind in the nation, which forbids licensed health care workers from asking patients about gun ownership and gun safety absent compelling reasons. Supporters, including the National Rifle Association, say the law was needed to protect gun owners' privacy and stop doctors from "harassing'' patients on the subject.

The law, which went into effect June 2 when Gov. Rick Scott signed it, has prompted a lawsuit in federal court from three professional groups representing thousands of Florida physicians. They say it unconstitutionally curtails their freedom of speech and interferes with their ability to look after patients' well-being.

The law says health-care workers "should refrain'' from asking about guns, recording information about gun ownership on medical records or "unnecessarily harassing'' patients unless the question is "relevant,'' or risk loss of their license and a $10,000 fine. Physicians say the steep sanctions effectively chill many practitioners' willingness to raise the subject. The consequence, they argue, will be more tragedies like Yamel's.

Asking about gun ownership, and whether firearms are safely stored, has been standard medical procedure across the country for years —- not just for clinicians treating depression or mental illness, but also for pediatricians and family doctors. Their practices are increasingly focused on injury prevention.

It's also been standard among therapists dealing with a sharp increase in the incidence of dementia.

Critics of the law say its vague wording raises a serious legal conundrum for physicians: If they're not supposed to ask whether patients or their family members keep guns, and under what circumstances, how can they determine if the information is relevant? And how would the state medical licensing board judge a complaint?

"What is relevance and who gets to decide that?'' asked Dr. Lisa Cosgrove, a Merritt Island pediatrician who also holds an advanced concealed weapons permit and is president of the Florida chapter of the American Academy of Pediatrics, one of the plaintiffs in the suit. "Say you have a teenager who has been on drugs or in depression. You ask about guns in the house and they refuse to answer. How far do you go? Who defines what harassment is?''

That vagueness, an attorney for the plaintiffs contends, is what makes the law unconstitutional.

"The courts have been very clear that restricting private speech is subject to the strictest scrutiny,'' said Daniel Vice, senior attorney for the Brady Center To Prevent Gun Violence in Washington, D.C.

Yamel, now 19 and a psychology student at Broward Community College, says she doesn't recall whether her family physicians ever asked the question. But she says a doctor's advice might spare others her fate. Many of her friends and neighbors have guns at home, but little notion of safety, she said.

"I think it's important. Kids take playing with firearms as a joke, but it has really bad consequences,'' said Yamel, a spokeswoman for the "Asking Saves Kids'' campaign, sponsored by the Center to Prevent Youth Violence and the Children's Trust. "People I know are very unaware of this stuff.''

Lawyers for the state argue nothing in the law stops health-care providers from asking about guns if they believe "in good faith'' that the question is relevant "to medical health or safety.''

"The act instructs physicians only to respect the rights of patients who decline to disclose their ownership or possession of firearms,'' Assistant Attorney General Jason Vail wrote in a court brief. "A controversy exists only because the plaintiffs misconstrue the act.''

The initial version of the bill was much stricter. It would have made asking about gun ownership a felony for health care workers, punishable by fines of $5 million. The final version approved by the Legislature was drafted in cooperation with the Florida Medical Association, whose leaders say they believe the law's "good faith'' clauses sufficiently protect doctors.

Still, many pediatricians and family doctors — some noting that most FMA members, like surgeons or ophthalmologists, rarely have reason to ask about guns — have reacted to the law with confusion and consternation.

The state medical board sent out a letter advising health-care workers to ask about guns only when it's relevant but provided little guidance.

As cases like Yamel's illustrate, doctors say, even responsible gun owners can benefit from safety reminders, or may underestimate the risks firearms pose for children or the elderly.

"I always ask if there are firearms in the home,'' said Nataly Rubinstein, a Miami Beach clinical social worker and certified geriatric care manager who once had a patient who shot her husband after thinking he was an intruder. "I ask, 'Did you previously enjoy hunting? Do you keep guns in the car?' You have to be specific. It's no more sensitive than asking someone about their diet or whether they're drinking. You need to know.''

A gun owner and gun-rights supporter, Rubinstein said she understands patients' attachment to their firearms, and patiently but firmly explains to family members why it's time to take them away, along with knives and car keys. Many resist, and she persists in follow-ups.

"For many people guns are their means of defending their family,'' Rubinstein, who is not involved in the suit, said. ''So many people are afraid of intrusions on their rights. They feel it's their God-given right to have their car and their gun.''

Pediatricians routinely inquire about guns on the same screening forms and interviews they use to ask parents of new patients about swimming pools at home, car seats, bike helmets, storage of household detergents and other potential risks for children. Those records are strictly confidential under federal law.

Family doctors have focused on these factors because statistics show the leading cause of death for children today is not illness but accidental injuries, including those from gunshots. Estimates cited in the lawsuit also suggest that guns are present in as many as one-third of U.S. households with children, and that more than 40 percent of them don't lock the guns.

"It's an important question. It's part of a medical history,'' said Dr. Joe Greer, a gastroenterologist and dean at Florida International University's medical school, who is not involved in the suit. "Gun violence is a major issue in this country and a major medical cost. It's what going on in America, and we have to deal with it.''

But some gun-rights activists, including the NRA, say doctors have no right to ask the gun question in most circumstances because doing so infringes on patients' Second Amendment right to bear arms. Some also mock the idea of getting gun-safety tips from doctors.

"They should only be in the business of healing people,'' said Robert Solla of Tampa, echoing the view of some gun owners in responses to a query from the Miami Herald. "What qualifications do they have? When one shows me his NRA instructor's license, then maybe I will listen.''

Legal battle pits part of medical profession against gun-rights advocates 07/23/11 [Last modified: Sunday, July 24, 2011 12:19pm]
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