A pediatrician who asks a child's parent about firearms in their home could lose his or her license or be disciplined under legislation being considered by a [Virginia state] Senate committee today.
The bill would prohibit health care professionals from asking a patient about gun possession, ownership or storage unless the patient is being treated for an injury related to guns or asks for safety counseling about them....
The legislation is opposed by The Virginia Chapter of the American Academy of Pediatrics because it blocks a common practice by medical professionals to inquire about gun ownership and safety when they go over a safety checklist with parents during a child's regular checkups from birth to puberty....
As I've noted before, the constitutional status of professional-client speech is unsettled. It seems pretty clear that the government has some extra power to regulate such speech, but I doubt that this power is or should be unlimited.
And this restriction (which I regret to say is supported by the NRA) seems to me to be well outside the proper limits of the government's power here. The restriction isn't limited to speech that is misleading or dangerous to patients; perfectly accurate and reasonable advice about preventing gun injury is covered alongside exaggeration and hysteria. Nor is this a requirement that doctors say extra things that the government thinks patients ought to know (such speech compulsions are generally forbidden, but may be constitutional when imposed on professional-client speech); this limits the information that doctors can give patients, rather than adding to such information.
The NRA argues that doctors' advice about guns in "intrusive" and "unnecessary," but it seems to me that the government needs much more than such beliefs to suppress speech. Speech can't be banned just because the legislature believes it "unnecessary," and absent unusual circumstances the sensible response by patients outraged by "intrusive" statements is to switch to a doctor they like better (or perhaps to warn their new doctor that they don't want gun safety advice). Timothy Wheeler, at the Claremont's Institute "Local Liberty" blog, defends the law as aimed at preventing "boundary violations": "With very few exceptions, a doctor's probing of a patient about guns in the home is a politically motivated question. That makes it an ethical boundary violation, which is unprofessional conduct. Doctors are forbidden to misuse the trust of their patients to advance a political agenda such as gun control." There's no doubt that many medical organizations have taken political stands on gun control; the American Academy of Pediatrics, for instance, urges that handguns be banned. And it's certainly quite possible that some doctors' political prejudices lead them to give unsound advice, for instance exaggerating the risks to health of keeping firearms in the home, or ignoring the possible benefits (including to the owners' health) of keeping firearms in the home.
But "liberty," "local" or otherwise, includes the liberty to communicate views that are influenced by one's ideology, without the government's banning such speech on the theory that it is "unprofessional." And it likewise includes doctors' liberty to convey their professional views on the health threats that various behaviors — bicycling, playing sports, engaging in unsafe sex, storing guns in certain ways — pose.
I should note that the government has much more authority to control what its employees or contractors say (see, e.g., Rust v. Sullivan); but this law would apply to all doctors, not just those hired or funded by the government.
The bill passed in the Virginia House by 88-11, though it was apparently blocked in the Senate committee by a 6-9 vote. Thanks to Glenn Wright Bowen for the pointer.
Related Posts (on one page):
- Doctor-Patient Speech and the First Amendment:
- Doctors and Guns:
- Proposed Restriction of Doctors' Speech Related to Guns:
- An Odd Complaint:
- Little-discussed free speech question:
As this is a Va. state law, not at all, unless you're asking the result if it is appealed to the SCOTUS and upheld. If that happened, well, state legislatures could script rather a lot of your future medical advice; an outcome, I'll note, which is unfortunately popular on both poles of the US political spectrum.
My doctor ALWAYS asks about my guns. He owns an Uzi and wants to keep up. If a doc gave me antigun lectures, I'd find some other doc who minds his own business. *If* I were open to balancing away the First Amendment, I'd like to see a weightier interest than "I'd rather not change doctors, I want you to order this guy to speak or not speak as I prefer."
Might be an interesting comparison with bills to forbid pharmacists to refuse to fill "morning after" abortion pills, a prohibition endorsed by ACLU and others. I figure -- they're not government employees, nor do they have a monopoly. The simple solution is to go to a different pharmacist.
1) plastic five gallon buckets. more children under five drown in them than are shot.
2) bicycles. more children under 14 are killed on bicycles than are shot, by a wide margin.
3) swimming pools. more children under ten drown in them than are shot, by a wide margin.
?
Even if a doctor flat-out advises all his patients that they shouldn't own a gun, there's a rather large difference between voluntarily choosing not to own a gun and "gun control."
Of course, perhaps there are pediatricians that disapprove of guns, just as I'm sure there are pediatricians that disapprove of parents driving their kids around in Corvettes. Trying to micromanage discussions of such issues, though, is idiotic. Adults can handle their own discussions!
That said, as the mother of a kindergartner, I have found some of the questions addressed to my child even when he was 2-3 younger, by medical professionals, to be a bit disconcerting. This is particularly true because sometimes the list of questions have included some things, such as guns, but not others, such as common daily hazards you can't "lock up" (another commenter mentioned some of these, so I won't be redundant).
The other oddity is that the list of questions sometimes vary from nurse to nurse, for example, and the emphasis on and length of safety suggestions seem to vary based not on anything to do with our personal situation but rather on the other individual.
On one particular occasion, one nurse asked about guns, we said (truthfully) that we don't own any, and yet she preceded to go into gun safety at some length. But during the very same conversation, when we shared that our son precociously had gone to a two-wheeler (without training wheels) and was capable of miles-long bike rides regularly, she asked no detailed questions nor offered similarly detailed advice. That was fine, because we had it covered, but this was a decidedly odd encounter.
Or suppose I believe that being moderately overweight--like (allegedly) owning a gun--isn't actually a health risk. I could pass a law preventing doctors from promoting their ridiculous sizeist agenda. Well, why not?
The right not to be offended may be the dread spawn of identity politics but is increasingly effective in the hands of College Republicans, creationists, and gun nuts. I love it.
What's the constitutional hook for this law?
The state's general police power based on its control of licensing?
I don't believe the 2nd Amendment has been incorporated by the 14th. But I seem to recall reading somewhere that the 14th A's privileges &immunities clause was, based on the discussions in Congress before its adoption, broad enough to encompass 2nd A rights.
Where might the SCt's reasoning in United States v. Vuitch, 402 U.S. 62 (1971), fit in here. [Justice Black wrote the opinion.]
There, in affirming the constitutionality of a District of Columbia statute criminalizing abortion, unless necessary to are necessary to preserve the mother's "life or health," the majority remarked:
Id. at 71.
As an aside, Vuitch rejected a vagueness challenge and allowed the prosecution to proceed on the premise that the word "health" was broad enought to "include[ ] psychological as well as physical well-being." Id. at 72.
That's where the basis for Roe really took root.
Sometimes I wonder if too close a connection to the Bush administration has addled the NRA brains (and I say this as a Life Member) and they come up with this kind of foolishness. This legislation puts peoples lives in danger, it is as simple as that.
Also, I don't think it is very professional to impose your political views on your patients since physicians hold a special place in society and patients are usually very vulnerable when they come to see you. In fact, such speech (advocating a strong political position that is not related to patient care issues) is probably unethical. Physicians often hold strong positions on various issues (gun control is a good example) and whenever these issues become part of a professional organizations issues, the result is either chaos or an acrimonious split. On the other hand, there are very strong reasons to ask a family with young children if there are firearms in the house involving safety. You'd think that the NRA of all organizations would be aware if this, but the attitude of "never give in" blinds them even to their own laudable efforts at teaching gun safety.
Maybe the attitude of honoring all the amendments should apply to the NRA (and the VA legislature) too since they bring this up all the time in their literature.
(Hey, someone should do a law review article on the slippery slope.)
--JRM, who is aware that dry throwaway lines sometimes are viewed as serious.
Technically you are correct, doctors are licensed by the state to practice the full scope of medicine, but I doubt you'd want me to do a heart transplant on you.
I can't comment on the law but for real life.. The AMA is a national association and is gun-unfriendly while the state of Virginia is gun-friendly. The AMA is trying to use it's national status to further a political goal. Virginia is taking their only state recourse.
I think both are acting politically and not in keeping with their core missions. Much easier to pick another doctor if you don't like the one you have.
Suppose you are a psychologist (a health care professional in every state) who is evaluating an adolescent that has been referred for several behavior problems, including drawing a picture depicting said adolescent shooting a school official and that picture was found by school officials...you mean the psychologist can't ask the parents if there are any guns in the house and whether the family stores the guns and ammunition in a safe manner? Even a psychologist who is a hunter and supporter of the 2nd Ammendment is going to want to know this information in undertaking such an evaluation.
Even if the AMA has an anti-gun agenda, do we really want the state "protecting" us from such speech? Are our lawmakers truly so wise, everyone of them a vertiable Socrates in Armani, that we should trust them to regulate every aspect of a private encounter? Does the NRA now support the Nanny State, as long as the Nanny prohibits speech they deem offensive?
First, that the doctor may be making notes in one's medical records to the effect that one owns firearms and how one uses and stores them, which is really none of his business, and is certainly none of anyone else's business. Unfortunately, as I understand it, current medical record "privacy" law is rather broad as to the people who can legally access your records, even without your knowledge. In our present nanny-state climate, I would not be at all surprised if people who told their doctor that they owned guns - particularly if they have children - might start attracting the attention of their state's Departments of Mental Health or Child Welfare. I'm sure you can imagine where such things can lead. This may be an extreme view, but these sort of bureaucrats often have too much power which, when combined with certain agendas and beliefs, can result in a lot of unnecessary grief for people.
Second, as we have seen, the various medical - particular pediatric - associations tend in the main to be anti-gun. That's their privilege insofar as it goes, but the anti-gun people are not noted for accuracy in their statistics and statements (the NRA does a lot better in this regard), and while doctors may be well-educated people, they are also often specialists, not generalists, in their knowledge, and so may be prone to swallowing the anti-gun arguments and spreading them among their patients - incorrect statistics about the danger of having guns in the home, the usefulness of guns in self defense, the actual danger to children of guns in the home, etc. Let's face it, there are 70 or 80 million gun owners and only 4 million NRA members; the vast majority may not be aware of the truth of these issues. We do no favors to people when we disarm them, whether voluntarily or by government fiat, as the statistics from
Australia, Britain and Canada are showing us.
All of that having been said, I am afraid that this issue falls into the category of "there oughta be a law," which is no guarantee that such a law is either wise or Constitutional. In this case, I am afraid that it is neither, which leaves us with the problem that the bill was intended to address....
Wouldn't a parent be worried that a "wrong" answer to such questions would cause legal problems since the parent is not a patient of the pediatrician (and a third party - the child - may be present). Even if there is a priviledge, it doesn't cover ongoing criminal activity or future crimes. (failure to use a car seat is a crime, though gun storage violations usually are not.)
Don't get me started on the car seat garbage. I actually heard a threat by a health care professional to commit the crime of false imprisonment if any mother with newborn attempted to leave the hospital without a car seat in her possession. That's when a gun would come in handy. Sheer nonsense of course but they repeat these fantasies all the time.
My guns have never been locked up (at home) and never will be.
"Doc, I'd love to lock my guns up but how will Tad shoot a piece of human debris breaking and entering the dwelling house of another in the nighttime with intent to commit a felony therein when I'm not home, if the Mossberg is in a safe in the basement?"
"It's none of your business. I don't care what you think about firearms, and I don't need safety lectures. Let's talk about my kid's health, that's what I pay you for."
It seems to work all right.
And the fact that only licensed physicians can practice medicine constitutes a monopoly only if you believe that all doctors are employees of the same corporation.
Treating a few gunshot victims could do that to a person. For that matter, police organizations support gun control, for similar reasons perhaps.
I just don't understand the gun owners who are such sissies, they have to run crying to the legislature because their doctor ASKED THEM A QUESTION.
This is one of my big beefs with the NRA - they are much too willing to support big, intrusive govt. They did it with Project Exile (federalizing crime) and here with this. They've also been very supportive of the War on Drugs. Give me the GOA over the NRA any day.
Funny how I just was discussing with someone the 'filters' people develop. Treating a few gunshot victims does not give a person an accurate picture of guns in this country. Same with cops, and I will add, that rank-and-file cops typically do NOT support gun control while chiefs (i.e. politicians) do.
In addition, federal law does not allow a committed patient to own firearms (I am not convinced this is fair or effective, but it is the law) so a reminder to the patient is often in order (I don't call the police on this issue.) Also, Tarasoff warnings are mandated in many states and are common sense to avoid liability and tragedy. If a patient threatens another person and is armed, then I have to take appropriate measures to protect that person (not to mention protect me from a lawsuit.)
Children who are in danger of physical harm or sexual abuse have to be reported in every state, the presence of guns in these cases is also a tremendous worry.
So I don't think that the statement that gun ownership is none of the physician's business is strictly correct.
Again, I am a strong advocate of gun ownership, but that ownership has to be responsible and safe both for society's sake and for personal safety. When a patient has an illness that might trigger unsafe use of a firearm (such as severe depression, mania, psychosis, etc.) then it becomes the business of a physician. A number of state and federal laws apply, even in Virginia, in these cases, not to mention the always present liability issue.
Maybe you just have to be there to understand.
It's this little thing called "privacy".
(1) Refuse to answer.
(2) Stop doing business with them.
Why exactly are these two items not enough? Why is a government-imposed restriction on the questioners' speech somehow needed instead?
Every state has laws on the books right now that require doctors to turn in patients for child abuse. How long before anti-gun doctor ideology makes the equation "parent owns gun and refuses safety instruction = child abuse and child endangerment for which I the doctor am required to report to child welfare for investigation"?
I would like it a lot better if the doctors would worry more about stopping killing 100,000 patients per year through their negligence, than to they worry about the less than 1000 accidental gun shootings of children per year.
There are TWO slippery slopes here in play. One for free speech, but also one with regard to the right to parent your children without undue observation by doctors acting as agents for big government.
Says the "Dog"
I know that the context suggests that this is a state legislative initiative, but it would be pretty simple to include this information explicitly, especially for non-lawyer readers.
Anyone else recall something like that?
Is that what the NRA legislation is reacting to?
Who put doctors in charge of counseling people about such stuff? Quit wasting your time and your patients' time and stick to actual health issues. No wonder I've never had that feeling that any of my doctors has really given much thought to my health issues. They've been too busy practicing Psych 101 and Political Correctness 102, when they've not been boning up on the sales literature from pharaceutical companies. And I say that as a big fan of pharmaceutical companies.
Statements like the one I quoted remind me why I think medical licensing laws are a bad thing.
It is not political correctness to ask about child safety issues. The fact is that numerous children are injured and killed needlessly because simple preventative measures are not taken. I say this as a gun owner, a libertarian on gun issues, and a medical student. Are you suggesting that the mere mention of gun safety is politically correct? Are other suggestions of preventative measures also unacceptably PC, such as proper storage of chemicals, use of helmets, vaccinations? All are designed to prevent common causes of injury and death, not to treat present illness.
The NRA heavily supports the use of gun education and other safety measures to protect kids. From their website:
A perfect time to raise the issue and possibly suggest such a program is during an annual well child checkup. The ones trying to legislate a politically correct society are those wishing to gag doctors. Well, that's enough fun, time to hit the books and review our medical school code of politically correct ideology.
Despite doctors inclination to more liberal views they aren't stupid and would surely realize the harm to the doctor patient relationship such a requirement would entail. Nor would it go unobserved that such a measure would guarantee every gun owner lies, and perhaps even starts hiding his guns instead of keeping them safely locked up ultimately increasing the gun danger.
Hell, the NRA by itself should be enough to keep pressure off the backs of known gun owning parents and with even a significant chunk of docs worried about these side effects such a law just isn't going to pass.
The proposed law has been roundly critisized for all the right reasons but there seems to be a bit of an argument whether it is right for doctors to ask about guns in the home. The obvious trivial answer is that, "it depends on how and when they do it." Some ways to ask/provide gun safety information (for instance if the doc brings it up in the context of how he keeps his guns away from his kids) are going to be palatable to even the most pro-gun family. The very real worry though is that many doctors are not only asking in the interest of providing disinterested advice about safety but instead to influence the gun-owner to get rid of their guns.
The people who defend these doctors rightly point out that a doctor should be concerned with all aspects of health/well-being. However, they then fail to take this premise seriously by narrowing the doctor's concerns to physical injury when clearly mental health and quality of life are even more important than physical injury. Obviously physical health is only a means to the end of a satisfying life (if one had a choice between having your brain transfered to a vat but could keep working, interfacing with the world, and commenting on Volokh or being stuck in a blank white room but guaranteed perfect bodily health which would you choose). Yet these considerations seem to be absent when considering the gun issue.
Whether you like guns or not there are many people who do like guns and derive great satisfaction from hunting, target practice, or even just peace of mind from apparent safety (whether real or not). Even if it is true that guns in the home increase the rate of death/injury to kids it doesn't follow that therefore it would be better to remove the guns. This would also make the parents less happy, and indirectly the kids. Quite frequently a more enjoyable life is worth extra physical risk (eat junk food anyone) and it seems like many doctors forget about this with guns.
However, it would be a mistake to think this is just an issue with guns. In my experience it is a more general problem with doctors, particularly psychiatrists. My best guess is that the incentive system is set up backwards. The psychiatrist who has 2 patients kill themselves but the rest of his patients are way happy is going to feel worse about it than the psychiatrist who plays it safe and has no suicides but most of his patients are still somewhat unhappy. This effect is exacerbated by general societal attitudes which view suicide/death as way worse than chronic unhappiness and a slightly puritanical attitude. Additionally doctors are given the power to dispense narcotics and other euphoria inducing drugs. While these drugs can have some pretty bad side effects (addiction leading to street use) severely depressed patients on whom less risky treatments failed would be better off drugged up on opiates then they would be enduring the misery of their life. Yet, for various social reasons stemming from the drug war doctors are expected to 'protect' people from that sort of 'abuse' even when it is a last ditch measure to make life bearable.
Stepping back to the narrow question of guns on top of not giving sufficent weight to be enjoyment someone gets from guns there is also sense in which the great concern about guns seems hypocritical. As I understand it car accidents are a much larger killer of children. Are physicians making sure you are driving a safe car? Do they ask about your driving speed?
In short it seems right to me for doctors to try and improve patients lives by involving themselves in less traditional areas (provided they learn their shit first). However, I am unconvinced the choice of guns to focus on rather than cars or something else was the result of appropriate cost-benefit analysis and bothered by the failure of doctors to take into account personal enjoyment.
Psychiatrists deal with mental illnesses which, for the most part, are biologically and genetically determined and usually quite severe. Suicidal patients brought to the attention of a psychiatrist are driven to kill themselves in many cases. These are not the worried well. Studies show that untreated Major Depressive Disorder has a 15% mortality (that means death) rate, so any effort to change that statistic is in the pervue of the physician. To imply that suicide is always a rational option in these cases is evidence of ignorance of the facts.
As for narcotics, for the most part they are not treatments for mental illness, any more than alcohol is even though many people self-medicate with both substances.
I know of no physicians who are willing to abet the government by turning in names of gun owners to government entities just because they own guns. I wouldn't even know who to turn the names into and I certainly would not do it, not just because of my 2nd Amendment stance (pro-gun) but because it would be a good way to lose patients. No doctor likes reporting anything except those things mandated by law (child and elder abuse) and the paperwork alone is daunting not to mention the time it takes to deal with the authorities.
Also, my son just graduated from medical school, and he did not run into any anti-gun diatribes. He was never taught that he had to get guns out of the hands of the people to make a utopia on earth. He was taught (as I was) to "First, do no harm"
Granted, there are professional organizations who have taken up this line but all most doctors are a) conservative politically and b) capable of making independent decisions in spite of some of the rhetoric noted above. The leaders of professional organizations tend to be academics who have more time on their hands than the usual practicing physician. I don't belong to any professional organizations for that reason alone, but mostly because I don't think they do anything worth the dues they ask.
If you think that all doctors are minions of the state aching to take your guns away, the answer is simple: try an alternative, there are plenty of them out there. But the next time you see your doctor at the skeet range, the odds are he is not a spy for the anti-gun crowd.
+ Patients expect expert advice from their doctors. Patients expect that the advice they get from their doctors is scientifically sound.
+ The family doctor is increasingly rare. Even the family doctor has little time to chat in the clinical setting.
+ Doctors see the failures more than the successes or the neutral cases, and the failures get more press. Dramatic failures expose them to more liability.
+ Doctors ought to limit talk that is likely construed as medical advice to topics where they have medical expertise. This certainly should include safety, including anecdotal, as acceptable ("I've been seeing a lot of kids with injuries from [new toy] so be careful with it." I'm lucky that I found a pediatrician who has seen it all in 50 years of practice and advises parents not to worry, even when a toddler has just swallowed a tiny ornamental light bulb.) But it should not include propaganda such as "Guns are bad, mmkay?" or "Don't vote for Candidate X".
+ Many patients are at a power disadvantage. The state having taken over so much of medicine, they don't have free choice of doctors. (Many of us have spoken against socialized medicine, or more palatably named schemes like single payor, on the basis that "Who pays the piper calls the tunes.")
+ Doctors don't always limit themselves to areas of medical expertise, and in fact some of their professional organizations advise them to go outside their area of expertise as regards guns, much more so than any other area.
+ A few doctors have gotten published for gun studies using inapplicable epidemiological methods.
+ Doctors get extraordinary legal powers, from free parking with MD plates to confidentiality; and as mandated reporters they are already acting as agents of the state.
Conclusion Maybe the state has more interest in doctor-patient speech than it does in barber-client speech. And maybe this is a problem that does need to be looked into somehow.
Parallel problem The other AMA (the American Motorcyclist Association) attempted to deal with a problem, gated communities in California banning motorcycles from their private roads, by making it illegal for the CC&Rs freely agreed to by the residents from containing such provisions. More relevant to this blog are moves excluding US flags, as a matter of public policy, from bans on hanging things from the windows and doors of condos. Most libertarians find these to be unpalatable solutions.
Attempted better solution Some states, like Texas, that have made their gun carry licenses "shall issue" (essentially a statutory right to carry) have allowed businesses to retain the right to prohibit guns from their premises. Gun owners have bristled. Some have called for taking away this right of the owners of the premises. I wonder what the ACLU would say? Neal Knox Associates said in their latest Hard Corps Report that this goes to far, but that imposing strict liability on the premise owners for any harm that befalls a visitor who disarmed himself for a visit to the premises, while at, heading towards, or returning from, that visit. (I wasn't clear how big a nexus there had to be between the harm and the voluntary disarming.) Sheesh. This is just a smaller stick. This is just replacing the jackboots with something softer. The principal is still the same.
If gun ownership were added to the list (as an independent item, or as part of child protection) would this then fall under the exception of things doctors don't mind reporting?
Would the doctors who didn't speak up when they came for the child abusers[*] speak up now?
[*]In my state, a healthy child coming to school with a facial bruise (received at the hand of a sibling) triggers a mandatory report of suspected child abuse or neglect. The report triggers an involuntary home visit and inspection. The home visit includes questions about the parents' religion, ethnicity, political affiliation, and (HIPAA notwithstanding) medical history.
And the last I heard, it was NOT an acceptable argument to tell victims of harassment to go elsewhere if they don't want to hear it.
I guess harassment by left wingers is special that way.
There are aprox. 6 million physicians (my guess) in the US so a certain percentage of them will be idiots politically. To simply state that "doctors are ..." is ignoring this statistic and is doing a lot of physicians and their patients a diservice. And I agree with a lot of what you said about the medicine as a profession, there is too little time, too many demands on physicians from outside entities such as government and insurance, and we have not figured out how to cure all disease. But a lot of these issues are not controlled by physicians (believe me they have tried, but monopoly laws, among others have thwarted these efforts) and most doctors are not even interested in politicizing their practices.
I think that the original question is whether the state has a right to interfere with the patient-doctor relationship and whether the state has the right to impose certain restrictions or policies on health care workers. Clearly when the safety of children or incompetents (elders or mentally retarded or persons under guardianship) is at stake the state has some say (and I believe this has been vetted by the courts) but in a situation described by the proposed law, I doubt it. In fact, it would be good if the law passed and the Virginia Medical Society challenged it just to see if it is constitutional. I abhor the government telling me how to practice medicine if there are no safety or criminal issues involved and I believe that that is the classical conservative position. I have enough problems with the insurance companies (in the form of some clerk reading off of a list) telling me how to practice medicine and not taking any of the responsibility in the process ("This agreement is not an authorization to treat ..." Well, then what is it?)
Physicians, just like other people, have a variety of political, religious, and philisophical beliefs. For the most part they tend to be conservative and apolitical unless it is their ox who is being gored. A large number of physicians are gun owners and most tend to be independent, which is one of the reasons they got into medicine in the first place even though the days of the single practice are over.
By the way, do lawyers always limit themselves to their areas of expertise?
However, since we live in a litigious society, it would be interesting to see if dispensing advice on non-medical issues like gun safety carries with it legal liabilities. If the medical community accepts responsibility for advising parents on bicycle helmets, can a doctor who fails to do so be sued for negligence if little Johnny cracks his skull?
Conversely, can a doctor who tells a parent to sell his guns be sued if that unarmed parent is subsequently injured by an intruder?
The voluntary, even aggressive, intrusion by physicians into previously uncharted areas of advice have the potential for providing the legal profession new ways of making money and insurance companies richer.
Since the lawyer's work product is more clearly reliable advice[*] than is the case for doctors, I understand that lawyers are generally more acutely aware of when their advice could be construed as "legal" advice, and at least some won't touch legal areas outside of their area of specialization lest it be malpractice.
[*]Lawyers don't treat, manipulate, cut, or administer drugs to their clients.
There's also the charming practice some doctors have of maintaining lists of patients who complain, file lawsuits, etc. and refusing to accept them as patients.
The private owbership of machine guns was banned in the 1920s and never reinstated. You must be thinking of a different weapon.
You're a dirty liar.Stop deceiving the good citizens of Volokh-land!It turns out that this isn't so. The federal government has heavily taxed and regulated machineguns since the 1930s, but only banned them in the 1980s -- and even then grandfathered in previously lawfully owned weapons. There are an estimated legally registered 100,000 machineguns in civilian hands (see Kleck, Targeting Guns).This was meant to be an attempt at ironic levity and should have read:"By the way, do lawyers always limit themselves to their areas of expertise?
One of the things I like about this list, and I suspect most of us like, is the reaonalbe discourse that usually occurs outside of the occasional ad hominem argument that always seems to creep in. So next time, I will be a little less subtle. I am perfectly aware that lawyers have no opinions outside of their areas of expertise.
My quote should read:"By the way, do lawyers always limit themselves to their areas of expertise? (G)" and the last line should have an emoticon after it too.
Now if the Democrats promised to get rid af all the paperwork...
In the few circumstances it's risen, they disagree with firearms instruction for minors on the grounds of acclimatization or desensitization. AAP doesn’t offer advice on firearms handling, nor do they recommend existing programs. [Anticipating counter-claims, “properly securing” is not a safety program]
Claims that AAP questioning is a safety matter are false.
In the absence of probable cause, it's totally inappropriate to interrogate children about articles in their parents’ homes. [Or about their parents’ lifestyle, recreation habits, political comments, etc.]
As a Virginian I welcome the legislature’s attention to this. The law is overbroad and needs to be tuned, but it’s an appropriate response to an outrageous violation of ethics.
Conservatives are just as eager to suppress speech that they find objectionable. IMHO, the biggest problem with this thread is the people claiming that it's somehow ok to limit the speech of doctors because the doctors are biased or wrong in what they say, which seems totally irrelevant to the question. That's what free speech is all about -- the ability to be biased and wrong. Take that away and there's no free speech.
It seems many of the comments here are irrelevant to the actual proposal.
Says the "Dog"
The question: is the pediatrician liable for malpractice?
(Perhaps America's famed out-of-control tort system could solve this problem for us...)
Fact is, that Physicians are in a "power" position with the capability of exercising undue coersion. That is why they, like other professionals (including lawyers) are not allowed to engage in what are clearly otherwise constitutionally protected actions (such as sexual relationships with patients).
If the physicians groups are furthering a political agenda disguised as a public health interest, that in my view can be regulated under professional licensing doctrines such as those related to "boundaries" and whatnot.
The fact that the invasive questioning on gun ownership comes from a polically motivated perspective is well documented. I dare say that if the AMA started encouraging physicians to track patients' status as legal/illegal residents; or their sexual history (including, for example, by pushing a politically motivated "public health" set of bullet points about the increased risks of a homosexual lifestyle, there would be hell to pay and new laws JUST LIKE THIS passed reflexively by many legislatures. Again, its a question of what doctors should be trying to do. By their own admission, they're not just tracking information (which is bad enough), they're engaging in the equivilent of push polling and that's what's got the NRA up in arms.
Amusingly, patients on some prominant gun enthusiast message boards have taken to confronting their busybody doctors with a "release form" like the following. Very funny, indeed:
========snip=========
FIREARMS SAFETY COUNSELING REPRESENTATION:
PHYSICIAN QUALIFICATIONS AND LIABILITY
Part One: Qualifications
I affirm that I am certified to offer (Name of Patient: ), herineafter referred to as "the Patient", qualified advice about firearms safety in the home, having received:
Specify Course(s) of Study:
from:
Specify Institution(s)
on:
Specify Course Completion Date(s):
resulting in:
Specify Accreditation(s), Certification(s), License(s) etc.:
Check one, as appropriate:
___ I represent that I have reviewed applicable scientific literature pertaining to defensive gun use and beneficial results of private firearms ownership. I further represent that I have reviewed all other relevant home safety issues with the Patient, including those relating to electricity, drains, disposals, compactors, garage doors, driveway safety, pool safety, pool fence codes and special locks for pool gates, auto safety, gas, broken glass, stored cleaning chemicals, buckets, toilets, sharp objects, garden tools, home tools, power tools, lawnmowers, lawn chemicals, scissors, needles, forks, knives, etc. I also acknowledge, by receiving this document, I have been made aware that, in his inaugural address before the American Medical Association on June 20, 2001, new president Richard Corlin, MD, admitted "What we don't know about violence and guns is literally killing us...researchers do not have the data to tell how kids get guns, if trigger locks work, what the warning signs of violence in schools and at the workplace are and other critical questions due to lack of research funding." (UPI). In spite of this admission, I represent that I have sufficient data and expertise to provide expert and clinically sound advice to patients regarding firearms in the home.
OR
___ I am knowingly engaging in Home/Firearms Safety Counseling without certification, license or formal training in Risk Management, and; I have not reviewed applicable scientific literature pertaining to defensive gun use and beneficial results of private firearms ownership.
Part Two: Liability
I have determined, from a review of my medical malpractice insurance, that if I engage in an activity for which I am not certified, such as Firearms Safety Counseling, the carrier (check one, as appropriate):
___ will
___ will not
cover lawsuits resulting from neglect, lack of qualification, etc.
Insurance Carrier name, address and policy number insuring me for firearms safety expertise:
I further warrant that, should the Patient follow my firearm safety counseling and remove from the home and/or disable firearms with trigger locks or other mechanisms, and if the patient or a family member, friend or visitor is subsequently injured or killed as a result of said removal or disabling, that my malpractice insurance and/or personal assets will cover all actual and punitive damages resulting from a lawsuit initiated by the patient, the patient's legal reprerentative, or the patient's survivors.
Signature of attesting physician and date:
Name of attesting physician (please print):
Signature of patient and date:
Name of patient (please print):
Note to patient: Indicate if physician "REFUSED TO SIGN." Ask physician to place copy in chart/medical record.
=========================
The answer: no.
http://www.keepandbeararms.com/downloads/gundocform.pdf
I know it's vague, but in my opinion any provider getting into these unrelated realms is quite possibly going to deal with you medically in a remote way also and is probably not capable of dealing with your exact case, or with you as an individual, instead applying algorithmic treatment derived from stereotypical groups or dogmatic rules, apart from your actual case.
Perhaps I'm unduly influenced by my last experience with this scenario, where a close friend of mine who is 71 and able to ascend 9000 ft. mountains like a goat while giving continuous dissertations on poisonous snakes, was adjudged by a "brilliant" cardiologist to have "heart failure" because of one test, and put on a blood pressure lowering drug, also thought to be a "magic pill", which caused him to pass out once while driving[!] and continuously threatened him with stroke and myocardial infarction. [He often felt faint, and would become "rummy" on hikes. His blood pressure was already low and only got lower.]
The cardiologist's "brilliance" was somehow connected to her having had an article published about the oppression of women in medicine. I kept asking my friend, "Didn't she take a history?" and finally convinced him after several months to stop the the offending medication. Literally the next day he said, "I feel normal again". She'd almost killed him. [He has no heart disease.I had told him to ask her if he instead "needed a heart transplant", could I have his?]
Really, this p.c. thing is bad for your health, apart from its social consequences. Run from it if you can.
The legislation in no way prevents any doctor from giving a speech or advocating the abolition of guns. What it seems to be designed to do is limit doctors, under color of they professional duties, to collect data on a subject when that subject has no bearing on their professional responsibilities. It seems to me that the Libertarian position would be to reduce rather than increase the amount of data gathered by either the government or licensed professionals about our private affairs – especially if those affairs happen to have specific constitutional protections.
However, Professor Volokh has not addressed the issue of physician liability if it becomes standard practice for doctors to give gratuitous advice not directly related to medical procedures. As someone who operates in the financial field, I assure everyone here that the legal profession is incredibly skilled at finding liability for either actions or non-actions that could possibly lead to bad outcomes.
I, for one, would welcome the creative members of the legal community to find a doctor who either through action or non-action cause a patient to come to harm as the result of a gun incident.
$200? That still was a huge sum back then.
(It wasn't a ban on ownership - but it affected the manufacture of new machineguns for non-government-agency ownership.) I don't remember if it
was a "ban", or just a decision to stop accepting registrations? :-)
In most states "unprofessional conduct" does not usually include speech but does include being intoxicated, stealing from patients, forced sex, assault, and committing a felony. The state medical board has jurisdiction over these issues under this proposed law, and they could issue a reprimand each time it was reported assuming the investigation would bear out the facts and would probably not do much more than that. Even then it is the board's decision to set a penalty.
The board would also be sued under whatever state or federal statute that assures free speech (the First Amendment?). The most likely in the initial hearing argument would be that the advice was given as part of the exam and treatment and there will be a challenge to the wording involving "counseling" since part of health care is counseling patients about various issues such as smoking and diet. I understand that some of us on this list think it is inappropriate or insulting to ask patients about guns and consider anything that a physician does in this regard as undue influence. I don't think so, but I do object to physicians actively pushing their own agendas, including any pro-gun agenda.
In addition this law means that no research could be done into the relationship of gun presence and illness or injury by a health professional. Thus the present research, which is generally used by anti-gun forces, is the last word.
The AAP has always been very liberal and is not the spokesperson for all of medicine. In fact they only represent about 10% of physicians and I am sure that all pediatricians are not in accord with them. It would be like saying the ACLU represents all lawyers.
Gotta agree with you there.
It's really remarkable, reading this thread, how few people can bear to have their ideologies even questioned. Doc sez maybe having a gun isn't a good idea? Pass a law shutting him up!
One of my pet ideas is that America has lost, if it ever possessed it, the ability to politely disagree. Perhaps debate should be a required topic in school; people might at least have higher standards for what they see on TV and read on the Internet.
Would you argue that the doctor's right to "free speech" extended to the use of derogatory racial epithets in the presence of the patient (even if not directed specifically at the patient), or simply saying "many blacks lead an unhealthy lifestyle, I need to warn you against these dangerous behaviors", or hectoring the patient about the negative health implications of his religious views, or lecturing him on the negative health effects of the homosexual lifestyle? Does any place of business have an unlimited right to create a hostile or intimidating environment for its customers simply through the right to "free speech"?
But what about:
1. A concerted information collection and "public health" campaign attempting to coerce people against homosexual lifestyle itself based on political motivation of the medical group. (i.e., imaging a group of christian physicians not so concerned about health as they are focused on eradication of homosexuality).
2. A concerted campaign relative to illegal migrant workers under the auspices of "public health" again, but as before instituted by a medical association with another axe to grind (i.e., wanting to expose and harass undocumented workers).
3. What about a concerted campaign relative to the circumcision issue but where the medical association pushing it had documented anti-semetic tendeancies.
4. What about a pediatrics group that organizes an information collecting campaign on whether their single-mother patients are having dating partners sleep over when the children are home (there is statistical evidence this is an impact on the children), but where the group pushing this is a "men's rights" group with an agenda puntivie to the mothers and not so focused on the kids.
These examples, I think, would all result in outrage. Its amazing to me that the medical associations issue joint press releases with anti-gun groups about this stuff, and then people are surprised when folks start to question the motivation and medical bona-fides of this information collection and patient lobbying. The issue here is not to constrain doctors from giving good faith input, its to challenge them when they become pawns for zealots of various stripes. The AAP has, I believe it is reported, accepted finacial considerations and partnered in research studies with anti-gun groups. Its the dressing up of an ideological agenda as a "public health" issue (i.e., doctors suggesting to patients that the only basis for their belief is a health or medical issue, when their or their organizations personal politics are actually driving things) that becomes a concern.
Until I got fairly ancient, I called Dr. John Jones “doctor” not John. Doctors have the same relationship to their patients as supervisors to the people below them.
This may not have been an issue until certain medical groups became advocates for gun abolition. I, for one, do not like to have my rights infringed by a medical professional who can be required to turn over his records via a subpoena. This is not a proper venue of the medical profession. I am rather surprised that a Libertarian leaning group believes that it is.
What is *with* you people? Why do you have to protect yourselves from even encountering a different point of view from your own?
There IS a constitutionally protected right to privacy, even if it cannot be plausibly interpretted to encompass a right to abortion. (Something is private if it does not involve harm to non-consenting parties, which at the very least is not clear-cut in the case of abortion. Click on my link to see my post on saving privacy rights.)
Keeping doctors from pursuing politically sensitive information, on the basis of political motivations, seems a perfectly reasonable step to protect privacy, which is particularly important related to guns, given that the same people want to pass laws to take everyone's guns away.
In sum, speech rights are not the only constitutional values at stake here, and they are overweighed in this instance by the other constitutional concerns.
>>>>patient says to the doctor, "Buzz off," and finds another
>>>>doctor.
>>>>
>>>>What is *with* you people? Why do you have to protect
>>>>yourselves from even encountering a different point of view
>>>>from your own?
Oh, come off of it.
In addition to taking their business elsewhere, many of those consumers in my examples will be in contact with the licensing authorities to discuss just HOW the actions of the physician have anything to do with the practice of medicine. Likewise, they'll be promptly in touch with their liberal democratic politicians who have demonstrated time and again that THEY have no problem overlooking free speech issues in order to protect the liberal shibboleth of the moment.
Speaking of "you people," I for one (as a mall "l" libertarian and Ayn Rand objectives) continue to be amazed at the condescending mindset that posits that university or otherwise "higher" educated folks (like doctors) gain by their schooling an almost "philosopher king" status by which they deign to guide the unwashed masses even as to things that are wholly unrelated to their area of expertise and the framework of their license.
Until I hear of medical doctors stopping patients before any diagnosis or procedure and advising them that more people die each year at the hands of their physicins than die of firearms, I'll contine to question whether those folks are abusing their position of trust to further ideological agendas.
Have a nice day.
**yourselves from even encountering a different point of view
**from your own?
By the way, I don't think anyone is saying that M.D.'s can't have a contrary view on gun control, and write as many letters to the editor, give as many public speeches, or donate to as many groups as they want.
What WE are saying is that they don't get to abuse the sanctity of the physician-patient to advance a political agenda. Its really not that difficult. I don't mind anyone challenging a view different from my own. But its a little different when the person pontificating to me is in the middle of giving me an annual and wants to recite the bullet points from VPC propaganda whilst his gloved finger is up my rectum searching for prostate enlargement. Don't want to get this kind of pushback, stick to MEDICINE while you practice medicine.
I think so. I'd want to know a little more info. For example, are there alternatives. If the patient had no realistic choice in doctors, I would be more concerned. But I assume that for the overwhelming majority of places of business, free consumer choice pretty much cures the problem. And incidentally prevents the problem because businesses want customers.
I'm no fan of hostile or intimidating speech. But I'm less of a fan of the government deciding what constitutes hostile or intimidating speech.
Beware of The Argument From Sanctity, is one of my axioms.
Gonzo, it appears that some *doctors* may have a different view of that relationship than yours. So let's just declare their opinion illegal, okay?
And your point is that you are no more principled then these people? People who hold different political views then you promote the "nanny-state" and the "right not to be offended," so you have decided to throw your libertarian principles to the wind and promote nanny-state legislation more to your liking?
As Mr. David Kopel wrote elsewhere:
"People in pain, people fearing cancer, and people who are injured and weak are vulnerable. They all look to their doctor to do right — right for the patient, rather than for the insurance company, or for the doctor's view of social policy. Doctors have a fiduciary relationship with their patients. They are obligated to set aside personal agendas and put the patient first. Putting the patient first means that the doctor must respect boundaries in the relationship with the patient. So when the doctor makes a pass at a patient, or tries to sell her real estate, or lobbies patients against gun ownership, the doctor is committing an ethical-boundary violation. Patients notice when a doctor abuses their trust or takes advantage of their pain and fear."
And to the a couple posts up: Again, no one's saying that doctors who believe they are philosopher kinds should have their opinions made illegal.
But if they want to be licensed by the state, they should limit their "practice" to things to which that license applies.
An OBGYN, for example, must ask a lot of very invasive questions to a woman in her care: Whether she's sexually active; how often; how many partners; whether it hurts. Those questions all go, however, right to the practice of medicine, and the reason she is there.
But that OBGYN who tells the woman "You know, statistics teach us that its really bad for women to bring up children without a proper male role model, and by the way, my brother is a nice guy and he's available" engages in a boundary violation. At the behest of someone to whom the doctor owes no medical duties, that doctor is taking advantage of access to the patient to advance a personal agenda.
You accuse me of having no knowledge of the subject (which I believe to be in error) but then offer no reason to believe what I say is wrong and offer a litany of dogmatic claims with little support, or true statements with no relevance.
Yes, depression is biologicall determined but then again so too is every psychological fact from belief in religion, to cruelty to morality. There is also good reason to believe depression is genetic (as in reasonable correlation with incidence in ancestors not on/off type mischaracterization of this) but what is the significance of this? I seem to vaguely remember a study that showed that disposition to religiousity is genetic. Does this mean we ought to treat people for being too little/too much religious? Hardly! The genetic effects are interesting things to know and might help developing treatments but don't make any difference to this discussion. Ultimately the idea that we can draw some kind of distinction and say that depression is a disease of the brain with a biological cause but that happiness, love, staisfaction, faith (or disposition thereof) aren't similarly biological is just an appealing fantasy.
The actual percent of people who commit suicide is also totally irrelevant. In case you hadn't noticed I wasn't saying that doctors are somehow hurting people with depression, nor was the example of 2 patients killing themselves supposed to be anything more than an arbitrary example. I was just saying that the feedback is imperfect because physical harm/damage shows up on the radar screen much better than low scale unhappiness. In other words I am suggesting that doctors are not maximizing the expectation of patient utility but instead maximizing the expectation of patient bodily health. I also obviously believe they should be doing the former and I think this is part of what is happening in the gun situation.
Also I never made the claim that suicide is always a rational option in these situations. I do happen to think it is a rational option for people with extreme depression after availible treatment has failed, the condition has persisted long enough to have give good reason to believe it isn't temporary, and your death won't cause excessive hardship to others. HOWEVER, suggesting that even the way you misunderstood my claim demonstrats an ignorance of the facts itself demonstrates a great deal of ignorance. As Hume observerd "Tis not contrary to reason to prefer the destruction of the whole world to the scratching of my finger." Ultimately whether or not suicide is rational depends on what you accept as a viable end. I could believe that suicide was morally required for everyone and there just wouldn't be a