Physicians

Second Go at Docs vs. Glocks Case EndsWith Rejection of Doctors Free Speech Claim

R econsidering a previous holding in a closelywatched case, a federal appeals court has rejecteddoctors challenge to a Florida law restrictingthem from asking about patients firearm ownership,unless relevant to treatment (Wollschlaeger v. Gover-nor of Fla., 2015 BL 240263, 11th Cir., No. 12-14009,7/28/15).The U.S. Court of Appeals for the Eleventh Circuit

July 28 issued a new opinion in the case popularlyknown as Docs vs. Glocks, but reached the same re-sult it did in a July 2014 opinion, upholding certain pro-visions of Floridas Firearm Owners Privacy Act, Fla.Stat. 381.026, 456.072 and 790.338. The case pitteddoctors, who said they should be able to ask patientsabout gun ownership because its a safety issue, againstthe states privacy law.The case could have nationwide implications, since at

least 12 other statesAlabama, Kansas, Minnesota,Missouri, North Carolina, North Dakota, Ohio, Okla-homa, South Carolina, Tennessee, Texas and WestVirginiahave considered adopting similar laws thatpreclude doctors from asking patients about gun own-ership, although none has yet done so.The decision might prompt some of those states to

move forward with that proposed legislation, AnthonyT. Caso, of the Dale E. Fowler School of Law of Chap-man University, Orange, Calif., told Bloomberg BNA. Italso stands as a reminder to individuals to be aware ofwhat information is placed in their medical files, espe-cially with federal laws mandating that providers useand maintain electronic health records.Caso, who filed an amicus brief on behalf of Doctors

for Responsible Gun Ownership, said he believed thecourt dealt accurately with the physicians First Amend-ment claim, considering the impact of this line of ques-tioning on patients significant privacy rights.But Douglas Hallward-Driemeier, of Ropes & Gray,

Washington, called the majoritys opinion deeply con-cerning, saying it marks the first time a court has up-held a states attempt to silence doctors from engagingin patient counseling that it is uniformly recommendedby all the relevant national medical associations.In a written statement provided to Bloomberg BNA,

Hallward-Dreimeier said the Florida legislature ad-

opted the Firearm Owners Privacy Act with the avowedpurpose to silence a purported political effort on thepart of doctors to counsel patients about risks and safepractice associated with the presence of guns in thehome. Such viewpoint-based discrimination is almostnever permissible under the First Amendment.Hallward-Dreimeier represented the plaintiffs.

Unwelcome Questions. Unlike its previous opinion, inwhich the court held that the law was a legitimate regu-lation of professional conduct, the court addressedhead-on the doctors claim that the law violated theirfree speech rights. Applying intermediate scrutiny un-der the First Amendment, the court said the law was, onits face, a permissible restriction of physician speech.The court said the act codified the commonsense con-clusion that good medical care does not require in-quiry regarding firearms when unnecessary to a pa-tients care. Such an inquiry would constitute a sub-stantial intrusion upon patient privacy, it said.

The courts analysis fails to appreciate the extent

of the laws intrusion on doctors speech.

DOUGLAS HALLWARD-DRIEMEIER, ROPES & GRAY,WASHINGTON

The provisions at issue preclude physicians from ask-ing patients about gun ownership, recording that thepatient owns firearms, harassing a patient about gunownership and discriminating against a patient basedon gun ownership. The first three provisions carry a ca-veat that permits doctors to discuss gun ownership ifrelevant to the patients medical care or safety.A violation of any of these provisions constitutes

grounds for disciplinary action against a provider, in-cluding fines, practice restrictions, the return of patientfees, or the probation, suspension or revocation of thephysicians license.The Florida Legislature adopted the provisions after

members received complaints from their constituentsthat health-care providers were asking unwelcomequestions regarding firearm ownership and that thepatients were being harassed or discriminated againstbased on their refusal to answer such questions orsimply due to their status as firearm owners, thecourt said.

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Health Law Reporter

The plaintiffs, Dr. Bernd Wollschlaeger and others,including the Florida chapter of the American Academyof Pediatrics (AAP), challenged the law in the U.S. Dis-trict Court for the Southern District of Florida. The dis-trict court preliminarily enjoined the inquiry, record-keeping, discrimination and harassment provisions af-ter finding that all four violated the doctors FirstAmendment rights by placing content-based restric-tions on the physicians speech (Wollschlaeger v.Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012)) (20 HLR1421, 9/22/11).The Eleventh Circuit reversed, saying that the act was

a legitimate regulation of professional conduct(Wollschlaeger v. Governor of Fla., 760 F.3d 1195, 2014BL 208278 (11th Cir. 2014)) (23 HLR 1007, 7/31/14).The doctors petitioned for rehearing or rehearing en

banc (23 HLR 1133, 8/21/14). The panel granted rehear-ing and vacated its earlier opinion.

Provisions Implicate Speech. In its new opinion, theEleventh Circuit agreed with the plaintiffs that the in-quiry, record-keeping and harassment provisions impli-cated speech, as that term is understood in the constitu-tional sense. It rejected the states argument that thoseprovisions regulated conduct having only an incidentaleffect on speech, which would be beyond First Amend-ment protection.The court next determined that an intermediate level

of scrutiny applied to determine if the provisions vio-lated physicians First Amendment rights. To survive in-termediate scrutiny, the state must show that a regula-tion directly and materially advances a substantialstate interest without sweeping more broadly thannecessary.This level applied instead of strict scrutiny because

states traditionally have a substantial interest in pro-tecting the public from unprofessional, incompetentand irresponsible physicians, the court said. Moreover,the states interest in protecting the public by regulat-ing the medical profession so as to safeguard patientprivacy is substantial, it said.Additionally, the state met its burden of demonstrat-

ing that the act advanced those interests. The recordcontained anecdotal evidence of complaints made tolawmakers by constituents who felt doctors invadedtheir privacy by asking about gun ownership. The regu-lations were meant to end that unwelcome question-ing, but only in circumstances where it would be irrel-evant to the patients medical care.

Doesnt Preclude All Discussion. The provisions didnt,the court said, prohibit doctors from inquiring into, re-cording or harassing patients about gun ownershipwhen the information would be relevant, such as whentreating a patient with suicidal tendencies. Caso toldBloomberg BNA that the court was right. There mightbe legitimate reasons for asking about firearm owner-ship in certain, limited situations, he said.The act was intended to protect patient privacy, not

preclude all discussions of firearm safety. It merely re-quires physicians to refrain from broaching a conced-

edly sensitive topic when they lack any good faith beliefthat such information is relevant to the medical care orsafety of their patients or others, Caso said.Hallward-Dreimeier, however, said the courts analy-

sis fails to appreciate the extent of the laws intrusionon doctors speech. The idea that the provisions onlyforbid speech that doctors know to be irrelevant is notremotely accurate, he said. Doctors seek to engagepatients in discussions about guns in the home as a mat-ter of preventive medicine, based on the belief that suchdiscussions are always relevant to patient health andsafety.American Medical Association President Dr. Steven

J. Stack, in a statement provided to Bloomberg BNA,said Floridas law poses real harm to patients as it in-terferes with physicians ability to deliver safe care, andhinders patients access to the most relevant informa-tion available.Providing firearm safety counseling to patients

helps prevent gun-related injuries and deaths, Stacksaid, referring to studies showing that patients who re-ceived such counseling from physicians were morelikely to adopt safe firearm storage practices. The po-litical interests of state lawmakers do not justify infring-ing on the patient-physician relationship and stiflingconfidential medical discussions that are proven to savelives.

Imbalance of Power. The court concluded that, con-sidering the imbalance of power between a doctorand patient, it was clear that extracting private infor-mation from a patient, knowing such information to beirrelevant to the provision of medical care, is a realharm. Thus, it is a matter of common sense to re-strict physicians from unnecessarily inquiring into fire-arm ownership.Judge Gerald B. Tjoflat wrote the opinion, which was

joined by Judge L. Scott Coogler, of the U.S. DistrictCourt for the Northern District of Alabama, sitting bydesignation.Judge Charles Reginald Wilson, while calling the ma-

joritys focus on the First Amendment issue an encour-aging development, maintained that, even under an in-termediate level of scrutiny, the provisions didnt passconstitutional muster. Wilson called the law a gag or-der that prevents doctors from even asking the firstquestion in a conversation about firearms. The lawsignificantly chills doctors from expressing their viewsand providing information to patients about one topicand one topic only, firearms.

Next Step. Hallward-Dreimeier said the plaintiffs at-torneys would be discussing the decision with their cli-ents, and that they plan to seek further review. Casotold Bloomberg BNA that he wouldnt be surprised tosee the plaintiffs file a request for review with the Su-preme Court, but he thinks it would be long shot.Dr. Anne Edwards, a pediatrician in Minneapolis,

who chairs the AAPs committee on state governmentaffairs, told Bloomberg BNA that the case was far fromover. AAP, she said, was just beginning to consider

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the opinion. Edwards also told Bloomberg BNA thatshe doesnt expect the ruling to prompt other states toreconsider legislation restricting doctors rights to talkto patients about firearms.Douglas Hallward-Dreimeier, Mariel Goetz, Erin

Macgowan and Alexandra Roth, of Ropes & Gray LLP,Washington; Dennis G. Kainen, of Weisberg, Kainen &Mark PL, Miami; Jonathan E. Lowy and Daniel R. Vice,of the Brady Center to Prevent Gun Violence, Washing-ton; Hal M. Lucas, of Hal M. Lucas PA, Miami; and Ed-ward M. Mullins, of Astigarraga Davis, Miami repre-sented the plaintiffs. Jason Vail, Allen C. Winsor, PamBondi and Timothy David Osterhaus, of the Florida At-

torney Generals Office, Tallahassee, represented thestate.

BY MARY ANNE PAZANOWSKITo contact the reporter on this story: Mary Anne Pa-

zanowski in Washington at mpazanowski@bna.comTo contact the editor responsible for this story: Fabia

Mahoney at fmahoney@bna.com

The courts opinion is at http://www.bloomberglaw.com/public/document/DR_BERND_WOLLSCHLAEGER_DR_JUDITH_SCHAECHTER_DR_TOMMY_SCHECHTMAN_A.

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BNAS HEALTH LAW REPORTER ISSN 1064-2137 BNA 8-6-15

Second Go at Docs vs. Glocks Case EndsWith Rejection of Doctors Free Speech Claim