By Elisabeth J. Ryan
This post is part of a symposium from speakers and participants of Northeastern University School of Law’s annual health law conference, Diseases of Despair: The Role of Policy and Law, organized by the Center for Health Policy and Law.
All the posts in the series are available here.
This law essentially forbade doctors from asking their patients about gun ownership, recording information about guns in the home, and “unnecessarily harassing” patients for being gun owners. The penalty was potential medical license sanctions and a fine up to $10,000.
Championed by the NRA and the state of Florida as protecting Second Amendment rights, the law set off a nationwide debate about the free speech rights of physicians, the role the medical community plays in the fight against gun violence, and the rights of patients to keep the exercise of their Second Amendment rights private. Several Florida doctors challenged the law almost immediately, claiming that it infringed not only on their right to speak with patients, but on the patients’ rights to hear that speech. While the ensuing procedural history of Wollschlaeger v. Governor of Florida was complex to say the least, the full Eleventh Circuit Court of Appeals ultimately struck down most of the law as a violation of the First Amendment in 2017.
Though the ruling technically applies only within the Eleventh Circuit, the decision (which Florida wisely declined to appeal to the U.S. Supreme Court) had social and legal ramifications far beyond that region. The message was clear: physicians have a right to talk to their patients about firearms. The next logical step is to ask whether they actually have a duty to do so.
Firearms violence killed more than 36,000 people in 2015, twice as many as brain cancer killed, and slightly more than motor vehicle incidents killed. Of those 36,000 deaths due to firearms, 22,000—a full 61 percent—were suicides. About 13,000 (36 percent) were homicides and the remaining 1,000 (3 percent) were due to unintentional incidents. Firearms also accounted for more than 67,000 additional non-fatal injuries, though that number may be a significant underestimate, given that nonfatal gun violence is much trickier to measure than deaths.
The presence of a gun in the home is one of the most important risk factors for suicide, homicide, and unintentional injury. Inquiring and counseling about the presence of firearms, the storage of firearms, and the handling of firearms constitutes a simple, cost-effective, and potentially very impactful way for physicians to assist in reducing the number of firearm injuries and deaths. In fact, many professional associations encourage these questions. But no articulated duty for physicians to ask about or talk to their patients about firearms exists in current statutory or case law.
However, such a duty can easily be read into many of the other existing duties that physicians have. Physicians owe patients a basic duty of care: they must provide a patient with treatment using the degree of skill, care, and diligence of a reasonably competent physician under the same or similar circumstances. Given the lethality of firearms and the heightened risk their mere presence creates, asking patients about firearms could constitute part of the basic duty of care owed to a patient, particularly in a primary care or psychiatric setting.
In some situations, the basic duty of care owed to a patient includes a duty of suicide risk assessment. Asking a patient about firearms could be a vital aspect of this duty. While only 1 percent of suicide attempts are with firearms, more than half of all suicide deaths are from firearms. Attempted suicides using a firearm are also more than 90 percent fatal, compared to 35 percent from jumping, and 2 percent from poisoning. More people kill themselves with guns in the United States than with all other intentional means combined, including hanging, poisoning/overdose, jumping, and cutting. If a physician has reason to believe that a patient may be suicidal, failure to inquire about access to firearms could very well constitute a basis for medical malpractice.
Mental health professionals in almost every state (which often includes physicians) already have a duty to warn if one of their patients poses a potentially serious risk of harm to others. This duty in particular supports the inclusion of firearm inquiries as a required element. If a patient poses a potential violent danger to another, the use of a firearm could increase the potential lethality of that threat exponentially. A failure to make an inquiry about access to firearms could constitute a failure to fulfill the duty to warn because the full nature of the threat would remain unknown.
However, even though many of these inquiries about firearms can easily be read into existing duties, doing so would inevitably lead to an increase in malpractice claims, an issue that the medical community already bemoans.
And if the ultimate goal is to get fewer people to die from firearms violence, adding to the legal burden of physicians is not the best way to accomplish that. Imposing an articulated duty would risk creating hostility from the medical community, which may very well view another requirement as a hassle, inconvenience, added expense, or imposition on their relationships with their patients. Doctors play far too crucial a role in fighting gun violence to risk that rift.
The idea should be to get doctors to adopt these inquiries and discussions as part of routine care, not because they are ordered to do so by legislatures, courts, or attorneys, but because they could literally save lives. A partnership between the medical community, the public health community, and the legal community should remain the ideal alliance and imposing a duty on physicians to discuss firearms with their patients, even in limited circumstances, would risk resentment and fear of litigation. Instead, the focus should be squarely on reducing the number of injuries and deaths. And physicians are in the best position to start moving towards that goal.
Elisabeth J. Ryan, JD, MPH, currently serves as the legal fellow at the Northeastern University School of Law Center for Health Policy and Law. She runs the Public Health Law Watch project and has extensive experience as a lawyer in the fields of criminal justice, public safety, and public health. She specializes in issues of firearms law and policy and gun violence as a public health issue.
This symposium is in partnership with: