Sunday, August 17, 2014

Physicians Lose Right of Free Speech

I’m all for free speech and I’m very hostile to censorship.  The response to ugly speech is not censorship, but is rebuttal speech.   Of course, there’s a lot of speech out there that should never be uttered.  Indecent and rude speech is constitutionally protected, but is usually a poor choice.    We have the right to make speech that is wrong.

Does First Amendment Apply to Physicians?

I relish my free speech in the office with patients.   I am interested in their interests and occupations and sometimes even find time to discuss their medical concerns.  I am cautious about having a political discussion with them, but patients often want my thoughts and advice on various aspects of medical politics, and I am willing to share my views with them.   I don’t think they fear that politics or any other issue under discussion will affect their care.  It won’t.

A Federal Appeal Court recently decided in a Florida case that physicians could be sanctioned if they asked patients if they owned firearms if it was not medically necessary to do so.  Entering this information into the medical record could also result professional discipline.  The court was considering such gun inquiries to be ‘treatment’ and not constitutionally protected speech.

I am on the record in this blog more than once that I do not think we should look to the courts to make policy.  Their task is simply to rule on the legality of a particularly claim.  In other words, we should not criticize a legal decision simply because we do not like the outcome.  Nevertheless, this decision is simply beyond wacky and could create a theater of the absurd in every physician’s office

Could the following examples of physician inquires be prohibited?

  • A psychiatrist cannot ask about cigarette smoking as this is not relevant to the patient’s depression.
  • An internist cannot ask what the patient’s hobbies are as this is not germane to the medical encounter.
  • A gastroenterologist asks his patient who is a chef for a recipe and risks professional sanction for crossing a red line.
  • A surgeon asks a patient’s opinion about the town’s new basketball coach and hopes that this patient is not a planted mole recording the conversation.
So for those physicians who practice in the 11th Circuit, no gun inquires unless you can demonstrate with clear evidence that it has direct medical relevance.  The court left open for now asking patients about sling shots, fly fishing and skeet shooting, but medical practitioners are advised to consult with their attorneys regularly.

Apparently, idiotic judicial decisions can still be the law of the land.


  1. Michael,
    you have an excellent collection of articles on your blog.

  2. In the case that prompted the Florida law, the doctor did not just seek to ensure that the child's parents were protecting it from exposure to improperly secured guns, wherever found, but to ensure that the parents did not own any guns, however stored. If the parent merely refused to answer the question, she would be kicked out of the practice as a bad parent, so one presumes that saying "yes, and I'm keeping them" would have gotten the same response.

    The problem with that is that our society gives doctors enormous power to judge who is a bad parent, and the consequences can go far beyond missing a TDaP booster. If a doctor angry because you argued with his deeply held beliefs chooses to call up the state and tell them that you are a bad, neglectful mommy (and oh, btw, you have GUNS!), his word alone will often suffice to send anything from a social worker to a SWAT team to your door. The implication that he would use this question to pass judgement on parents' fitness is therefore a real threat, and I would have raised heck in the media too if I were in their shoes.

    Reverse the binary political labels in this case and envision a right-wing-nut pediatrician refusing to treat a child unless his parents attest that no gay persons are allowed in their home at any time, as otherwise they would be "exposing their child to the threat of molestation." Surely you can see that the real threat to the child there would be the doctor's implied threat of a trumped-up neglect report.

  3. There also could be concern that a search of the emr database could bring up a list of persons acknowledging gun ownership

    Which could someday be used to assist in search and confiscation.of firearms.