Dr. Robert Young Represents DRGO at AMA Litigation Session on “Docs v Glocks”

[Editor’s Note: In November DRGO’s Robert B. Young, MD was invited to attend a meeting in Dallas of the American Medical Association’s Litigation Committee.  This AMA management committee assembled to discuss the ongoing litigation aimed at overturning Florida’s Firearm Owners’ Privacy Act (FOPA), also known as the Docs vs. Glocks law.  DRGO has been involved in this case since before FOPA was enacted into law, having written editorials on the subject and weighing in through an amicus curiae brief in the federal Court of Appeals case Wollschlaeger v Governor of State of Florida. Dr. Young presents here the remarks he gave as an invited guest representing Doctors for Responsible Gun Ownership. His own comments are included before and after the transcript.]

Presentation Supporting the Florida Firearms Owners Privacy Act

Presented at AMA Litigation Center Open Meeting
November 9, 2014 — 3:00-5:00 pm, Hilton Anatole, Dallas TX
[Ref. article: Docs, Glocks & Patients]

Robert B Young, MD

Robert B Young, MD

The Litigation Committee of the American Medical Association (AMA), which determines legal actions in support of AMA positions, decided for its fall 2014 meeting’s educational presentation to discuss the litigation (along with other medical specialty associations, such as the Florida branches of the American Academy of Pediatrics, or AAP, and the American Academy of Family Practice, or AAFP) seeking to overturn the Florida Firearms Owners Privacy Act (FOPA). This law, passed in 2011, prohibits physicians in Florida from routinely inquiring about patients’ gun ownership, even under the rationale of wanting to advise on general gun safety. It expressly permits inquiries whenever there is documented clinical justification (e.g., suspected dangerousness).

In Wollschlaeger, et al vs. Frank Farmer, et al [i.e., Governor, State of Florida], the AAP, AMA etc. contested the law based on physicians’ 1st Amendment rights. That succeeded in the U.S. District Court of Southern Florida in 2012. On appeal by defendants to the U.S. 11th Circuit Court of Appeals in 2014, that ruling was overturned, finding by a 2 to 1 majority that there was no infringement of plaintiffs’ rights to free speech and that the state of Florida had the right to set expectations for professional practice in this way as in others. The decision to overturn the law is currently enjoined pending appeal by plaintiffs for en banc review, so FOPA is not currently in effect. However, physicians across Florida have changed their practice based on a reasonable expectation that it will be upheld.

I was asked to conclude the panel presentations by discussing the reasons for FOPA, so that attendees could understand both sides of the issue. There were several hundred attendees, mostly physician members from local, state and the national organizations but also a number of interested lawyers. The discussion began with Leonard Nelson, the AMA’s General Counsel and Director of the Litigation Center, who organized the session, introducing Litigation Committee Chair, Jo Bryson, MD.

The first panelist was Jeff Scott, General Counsel of the Florida Medical Association (FMA). He’d been surprised by the unexpected but widely supported, rather punitive proposal that was the original FOPA draft endorsed by the National Rifle Association (NRA), which was instrumental in Florida in promoting this law. He was surprised and pleased that NRA readily agreed to consequences of licensure discipline only, dropping language requiring jail and fines. He described how Florida’s licensure oversight body has said it will act only on complaints of blatant promotion of political agendas or of haranguing patients. He doubted that discipline would ever result from the Act as it is now understood, since physicians are already being more careful. He hadn’t thought of it but agreed with a questioner that if the law had been stricter, it might more likely have been voided as a result of AMA and other plaintiffs seeking that.

Judith Schaechter, MD (Interim Chair of Pediatrics at the University of Miami and one of the named plaintiffs opposing FOPA) spoke next, explaining that she felt so strongly about this as an important health and safety issue that she could not have failed to pursue overturning the law for her patients’ sakes.

Douglas Hallward-Driemeier, the plaintiffs’ lead attorney spoke third. Though certainly an advocate for the plaintiffs, he mostly discussed legal rationales in the case from both sides, what levels of scrutiny regarding potential infringement on physicians’ right to free speech that should be applied (believing this should be higher than “rational”), the reasons that an en banc review by the entire 11th Circuit Court of Appeals is being sought (which could be based on the fact that one judge of the 2 to 1 panel majority upholding FOPA was not from that Circuit). He explained how the current decision reversed the overturning of the law “facially” (i.e. generally), though perhaps not in the plaintiffs’ precise circumstances, which might also become a reason for further judicial review. If their appeal is denied, plaintiffs intend to seek a U.S. Supreme Court hearing.

My remarks, minimally edited to make better sense being read, follow:

It’s a privilege to offer a counterpoint to the AMA’s position on FOPA. The belief of the dissenting Judge Wilson in the unanimity of the medical community on what to counsel regarding gun ownership is true only of the official positions of our professional associations, which actually represent only the minority of physicians who belong (and obviously not all of us), on any particular issue. So it’s always important to keep both sides of an issue in mind. That now includes Missouri, which in September enacted similar provisions in SB 656, and comparable legislation that has been proposed in at least 12 other states.

I belong to the AMA & the NRA for similar reasons. Were it not for the AMA, our ability to care effectively for our patients would be far more restricted. Without the NRA, one of our Constitutional rights would be, too. Both make invaluable contributions to the well-being of our nation.

Doctors for Responsible Gun Ownership (DRGO), which I particularly represent today, is a nationwide network of physicians and health care scientists and professionals who are knowledgeable about firearm safety, skills and policy. DRGO supports the long-standing American tradition of responsible, capable and safe firearm ownership. All of us, in this room, in our practices and in our communities, are equally concerned about keeping people safe from firearm injury. The difference is that DRGO promotes gun education to achieve that, not restriction.

The underlying question is whether individual and family firearm possession is necessarily dangerous and ill-advised. “Gun violence” and “gun safety” are phrases that are often misused, with implications that guns are inherently unsafe and that guns are a cause of violence, something like pathological organisms whose transmission needs to be stopped and that ought to be exterminated.

The phrase “gun violence” risks discounting people’s responsibility for the harm they cause, and can imply that other means of harm are somehow of lesser import. Neither notion is correct, of course. And it’s simple to be safe with a gun: Point it only where you are willing to shoot, and don’t touch the trigger until you choose to.

Statistical arguments justifying blanket advice not to own guns have misrepresented facts about youth and gun access, and have exaggerated the risks from guns. They can inform, but not substitute for, the patient-centered clinical thinking that should characterize any advice we give. For example, advice only to store guns and ammunition in separate locked locations ignores other responsible ways to secure them, depending on why and where one needs them, and who else should have access and who should not. Nor does the “public health” perspective on firearms include, as it should, the harm reduction played by guns used legally for protection.

We know that as gun ownership has grown across the United States, violent crime of all kinds has decreased, whatever other factors may have contributed. There are as many guns as people in the United States, and gun owners are very resistant to registering or surrendering their firearms. So there will always be guns around. “Gun safety” can only be achieved by teaching people, beginning with children, the rules of safe gun handling.

Gun access is an important issue in suicide, since it can provide an immediate, lethal means to someone vulnerable to a self-destructive impulse. The surest way to reduce this, as with all firearm tragedies, lies with responsible owners securing their weapons and using good judgment. At the same time, many good people are working to find ways to suspend access temporarily to firearms, with due process, from those who are at acute risk.

So, why was FOPA enacted in Florida? Too many Floridians had bad experiences with physicians telling them to get rid of their guns, when many patients who own and use guns knew that wasn’t right. Concern also grew that physicians were using their authority to prejudice less informed patients. As the 11th Circuit Court of Appeals majority later judged, these were appropriate concerns of the state in its “legitimate regulation of physician conduct … intended to protect patient privacy and curtail abuses of the physician-patient relationship.” The Court recognized that “the Act codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care.” My hope is that the result is a clearer focus by physicians on the actual medical issues patients present.

Many gun owners also fear the creation of databases of gun ownership, because that could be a step toward confiscation someday. The absence of such a database becomes a safeguard against that and so resistance to entering it is understandable. Whatever we physicians intend, documenting patients’ gun ownership, especially in searchable EMRs, is going to raise that specter. Whether or not someone owns a gun is no one else’s business unless he or she chooses to share that, and many consider it rude to be asked.

The Court determined that “Any burden the Act places on physician speech is thus entirely incidental”. It only prohibits our taking advantage of the imbalanced doctor-patient relationship to require information from patients regarding their gun possession or to push a politicized position like “no one should have guns at home” (or, for that matter, that “everyone should have guns”). That would be unethical, like telling patients how they must vote.

Only “unreasonable inquiries” are banned, which is a bit vague but flexible. Anything related to actual clinical concern (such as suspected dangerousness) is fine. Yet even being a psychiatrist, I rarely need to inquire about weapons. We can still promote our beliefs about firearms or anything else, like every other American, by speaking out or writing, making videos or mounting a soapbox—even by joining a forum like this. We can still inform all our patients about the risks of guns—which we should also do regarding cars, bathtubs, swimming pools, iatrogenic complications and nosocomial infections, all greater hazards.

Mostly, I’m saddened by all this, which I see largely as a cultural conflict. I resent the government telling me how I must practice, even if it seems necessary to others, as in this case. But as another panelist explained, it’s not a bad law as it turns out. Unfortunately, our adversarial legal system has become a common means to settle disagreements, which in this case I think is an indignity we inflicted on ourselves. I’m sympathetic to Judge Wilson’s comment “That we have a right to do something does not mean we have a right to be free from questioning about that right”—but only if the questioning is respectful of that right.

I wish the NRA and the FMA could have worked together. But this wouldn’t have happened if we physicians had made more effort to understand the meaning of gun ownership to the vast number of Americans for whom it is a statement of autonomy, a healthy exercise of fundamental human rights and an individual American constitutional right. We need to recognize that it is perfectly normal to live with and use firearms, and that this is done quite safely by over 99% of all legal firearm owners. Educating physicians about these realities is the answer.

Our present generation of physicians is probably less familiar with firearms than were previous ones, as our nation has become more urbanized. But we have also learned to become more sensitive to those of differing gender, ethnic, racial, religious, political, linguistic, socioeconomic, and sexual preference identities. We need to offer the same respect to Americans who may “cling to their … guns”, but who do so as a vital part of their lives and identities. We should not assume the worst about them.

My talk, like those of the other panelists, seemed well-received. About half the questions and comments were directed to me, all supporting the AMA’s positions but the audience generally seemed to appreciate my participation. I encouraged them, perhaps ironically, not to give up on their professional organizations just because they were mistaken on this issue. But following the event I was thanked by several physicians from the audience who expressed their support of my position.

It’s worth noting that only about 20% of U.S. physicians belong to the AMA, with comparable participation in specialty societies. So an official position of the AMA such as this, which it presents as representing American medicine, is not necessarily a majority view of the profession. As a member of the AMA myself, I served as an example of that reality.

Robert B Young, MD

Robert B Young, MD

— DRGO editor Robert B. Young, MD is a psychiatrist practicing in Pittsford, NY, an associate clinical professor at the University of Rochester School of Medicine, and a Distinguished Life Fellow of the American Psychiatric Association.

All DRGO articles by Robert B. Young, MD.