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Judge overturns Florida law prohibiting physicians from asking patients about guns

By Jay Weaver, McClatchy Newspapers –

MIAMI — A federal judge has blocked the state of Florida from enforcing a law pushed by firearms advocates that banned thousands of doctors from discussing gun ownership with their patients.

U.S. District Judge Marcia Cooke, who had already issued a preliminary injunction last September, made her decision permanent late Friday when she ruled in favor of groups of physicians who asserted that the law violated their free speech rights. She said the law was so “vague” that it violated the First Amendment rights of doctors, noting that the legislation’s privacy provisions “fail to provide any standards for practitioners to follow.”

The state Department of Health could appeal her summary judgment, which addressed legislation signed into law last year by Gov. Rick Scott.

In her ruling, Cooke clearly sided with the physicians, saying evidence showed that physicians began “self-censoring” because of the “chilling” effect of the legislation.

“What is curious about this law — and what makes it different from so many other laws involving practitioners’ speech — is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient,” Cooke wrote, citing the benefit of such “preventive medicine.”

“The state asserts that it has an interest in protecting the exercise of the fundamental right to keep and bear arms,” Cooke wrote in another section about the Second Amendment issue. “I do not disagree that the government has such an interest in protecting its citizens’ fundamental rights. The Firearm Owners’ Privacy Act, however, simply does not interfere with the right to keep and bear arms.”

The state’s latest legal loss follows a series of other recent setbacks in the courts, including healthcare reform, privatization of prisons, drug testing of welfare recipients, drug testing of state workers and the shifting of pension costs onto state workers.

The Republican-controlled state Legislature adopted the Firearm Owners’ Privacy Act in 2011 after an Ocala couple complained that a doctor asked them about guns and they refused to answer. The physician refused to see them anymore.

Cooke, the judge, said the legislation was based on anecdotal information and unfounded conjecture. Her decision was praised by the groups of plaintiffs, which included the Florida Pediatric Society and Florida Academy of Family Physicians.

“I’m ecstatic our challenge was successful,” said Dr. Bernd Wollschlaeger, a North Miami Beach plaintiff, who represented the Florida Academy of Family Physicians.

“We’re acting out of common sense, and this is a common sense issue,” said Wollschlaeger, a past president of the Dade County Medical Association. “My fear is the state will appeal and keeping wasting money to fight windmills. This is an ideologically driven, politically motivated vendetta by the NRA (National Rifle Association) that has to stop.”

The law says doctors and other health-care practitioners “shall respect a patient’s right to privacy and should refrain” from asking about gun ownership or whether people have guns in their homes. The statute also says physicians may ask about guns if they believe in “good faith” that the information is “relevant” to a patient’s medical care or safety.

But the law doesn’t spell out those acceptable circumstances, leading lawyers for the doctors to say it is so “vague” that they could be vulnerable to patient complaints filed with the Board of Medicine.

Lawyers representing pediatricians and other doctors argued that physicians had to impose “self-censorship” on health-screening questionnaires and verbal exchanges with patients because of fears they could face high fines or lose their licenses if they warn families about the risks of keeping guns in homes or other places.

Two Miami-Dade physicians — Wollschlaeger, the family ractitioner in North Miami Beach, and pediatrician Judith Schaechter of the University of Miami School of Medicine and Jackson Memorial Hospital — said in court papers that they had discontinued questioning patients about guns on standard health-screening forms.

“Physicians just stopped asking their patients about gun ownership because it was such a dicey situation,” Wollschlaeger said.

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