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Judge blocks ban on doctors' gun discussions with patients

Published Jul. 3, 2012

A federal judge has blocked Florida from enforcing a new law pushed by firearm advocates that banned thousands of doctors from discussing gun ownership with their patients.

U.S. District Judge Marcia Cooke, who had already issued a preliminary injunction last September, made her decision permanent late Friday when she ruled in favor of groups of physicians who asserted the state violated their free speech rights.

She said the law was so "vague" that it violated the First Amendment rights of doctors, noting the legislation's privacy provisions "fail to provide any standards for practitioners to follow."

The physicians' lawsuit, an ideological battle between advocates of free speech and the right to bear arms, has been dubbed "Docs vs. Glocks." The state Department of Health could appeal her summary judgment, which addressed legislation signed into law last year by Gov. Rick Scott.

In her 25-page ruling, Cooke clearly sided with the physicians, saying evidence showed that physicians began "self-censoring" because of the "chilling" effect of the legislation.

"What is curious about this law — and what makes it different from so many other laws involving practitioners' speech — is that it aims to restrict a practitioner's ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient," Cooke wrote, citing the benefit of such "preventive medicine."

"The state asserts that it has an interest in protecting the exercise of the fundamental right to keep and bear arms," Cooke wrote in another section about the Second Amendment issue. "I do not disagree that the government has such an interest in protecting its citizens' fundamental rights. The Firearm Owners' Privacy Act, however, simply does not interfere with the right to keep and bear arms."

The state's latest legal loss follows a series of other recent setbacks in the courts, including health care reform, privatization of prisons, drug testing of welfare recipients, drug testing of state workers, and the shifting of pension costs onto state workers.

The Republican-controlled state Legislature adopted the Firearm Owners' Privacy Act in 2011 after an Ocala couple complained that a doctor asked them about guns and they refused to answer. The physician refused to see them anymore.

Cooke, the judge, said the legislation was based on anecdotal information and unfounded conjecture. Her decision was praised by the groups of plaintiffs, which included the Florida Pediatric Society and Florida Academy of Family Physicians.

"I'm ecstatic our challenge was successful," said Dr. Bernd Wollschlaeger, a North Miami Beach plaintiff, who represented the Florida Academy of Family Physicians.

"We're acting out of common sense, and this is a common sense issue," said Wollschlaeger. "My fear is the state will appeal and keep wasting money to fight windmills. This is an ideologically driven, politically motivated vendetta by the NRA (National Rifle Association) that has to stop."

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The legislation was pushed by the NRA, 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. Lawyers for the Washington-based Brady Center to Prevent Gun Violence were also involved in the case representing the doctors' side.

"Guns in the home are a proven deadly risk," Dan Gross, president of the Brady Center, said in a statement following Cooke's decision. "Guns kill eight children every day. The government cannot tell us or our doctors that we are prohibited from discussing the deadly risks posed by guns."

The Department of Health has not determined whether it will appeal the decision, but House sponsor Rep. Jason Brodeur, R-Sanford, said an appeal is likely.

"I expect the ruling to be appealed to the 11th Circuit (Court of Appeals in Atlanta)," Brodeur told the News Service of Florida on Monday. "But that will depend on the wording of the ruling. I haven't read it yet so we'll have to see."

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. 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.

Lawyers representing pediatricians and other doctors argued that physicians 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.

Said Wollschlaeger: "Physicians just stopped asking their patients about gun ownership because it was such a dicey situation."


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