Counseling About Firearms: Proposed Legislation Is a Threat to Physicians and Their Patients

Article (PDF Available)inPEDIATRICS 118(5):2168-72 · December 2006with25 Reads
DOI: 10.1542/peds.2006-1120 · Source: PubMed
Abstract
In early 2006, 2 separate but virtually identical bills were introduced in the Virginia and West Virginia legislatures that would have profoundly affected the relationship between a physician and his or her patients. Each bill would have prohibited a physician from asking a patient if he or she owned firearms for the purpose of counseling that patient about ways to reduce risks associated with firearms. Penalties for violation of the bills included revocation of a physician's license to practice. The Virginia bill was initially approved by its state House of Delegates by a vote of 88 to 11. It was ultimately defeated in a Virginia Senate committee. The West Virginia bill did not receive a vote during the 2006 legislative session. Although neither bill became law this year, this type of bill is likely to reappear in future legislative sessions. The Virginia and West Virginia bills were contrary to the best-practices recommendations of medical societies, including the American Academy of Pediatrics. Anticipatory guidance regarding firearms can indeed reduce risks to patients. Yet, the bills would have preferred the judgment of legislators over physicians regarding this aspect of the practice of medicine. In addition, the 2 bills raise legal issues regarding both medical malpractice and the First Amendment protection of the freedom of speech. The Virginia and West Virginia bills would have treated risks associated with firearms differently from other hazards and interfered with a physician's ability to protect his or her patients. The Virginia bill was defeated, in part, through the efforts of physicians to educate legislators. However, physicians must remain prepared to respond to similar state legislative initiatives in the future.
DOI: 10.1542/peds.2006-1120
2006;118;2168Pediatrics
Jon S. Vernick, Stephen P. Teret, Gary A. Smith and Daniel W. Webster
Their Patients
Counseling About Firearms: Proposed Legislation Is a Threat to Physicians and
http://pediatrics.aappublications.org/content/118/5/2168.full.html
located on the World Wide Web at:
The online version of this article, along with updated information and services, is
of Pediatrics. All rights reserved. Print ISSN: 0031-4005. Online ISSN: 1098-4275.
Boulevard, Elk Grove Village, Illinois, 60007. Copyright © 2006 by the American Academy
published, and trademarked by the American Academy of Pediatrics, 141 Northwest Point
publication, it has been published continuously since 1948. PEDIATRICS is owned,
PEDIATRICS is the official journal of the American Academy of Pediatrics. A monthly
by guest on June 12, 2013pediatrics.aappublications.orgDownloaded from
SPECIAL ARTICLE
Counseling About Firearms: Proposed Legislation Is a
Threat to Physicians and Their Patients
Jon S. Vernick, JD, MPH
a
, Stephen P. Teret, JD, MPH
a
, Gary A. Smith, MD, DrPH
b
, Daniel W. Webster, ScD, MPH
a
a
Johns Hopkins Center for Gun Policy and Research, Johns Hopkins Bloomberg School of Public Health, Baltimore, Maryland;
b
Ohio State University College of Medicine
and Public Health, Center for Injury Research and Policy, Columbus Children’s Research Institute, Children’s Hospital, Columbus, Ohio
The authors have indicated they have no financial relationships relevant to this article to disclose.
ABSTRACT
In early 2006, 2 separate but virtually identical bills were introduced in the
Virginia and West Virginia legislatures that would have profoundly affected the
relationship between a physician and his or her patients. Each bill would have
prohibited a physician from asking a patient if he or she owned firearms for the
purpose of counseling that patient about ways to reduce risks associated with
firearms. Penalties for violation of the bills included revocation of a physician’s
license to practice. The Virginia bill was initially approved by its state House of
Delegates by a vote of 88 to 11. It was ultimately defeated in a Virginia Senate
committee. The West Virginia bill did not receive a vote during the 2006 legislative
session. Although neither bill became law this year, this type of bill is likely to
reappear in future legislative sessions.
The Virginia and West Virginia bills were contrary to the best-practices recom-
mendations of medical societies, including the American Academy of Pediatrics.
Anticipatory guidance regarding firearms can indeed reduce risks to patients. Yet,
the bills would have preferred the judgment of legislators over physicians regard-
ing this aspect of the practice of medicine. In addition, the 2 bills raise legal issues
regarding both medical malpractice and the First Amendment protection of the
freedom of speech.
The Virginia and West Virginia bills would have treated risks associated with
firearms differently from other hazards and interfered with a physician’s ability to
protect his or her patients. The Virginia bill was defeated, in part, through the
efforts of physicians to educate legislators. However, physicians must remain
prepared to respond to similar state legislative initiatives in the future.
www.pediatrics.org/cgi/doi/10.1542/
peds.2006-1120
doi:10.1542/peds.2006-1120
Key Words
anticipatory guidance, firearms, injury
control, policy
Abbreviations
HB—House Bill
NRA—National Rifle Association
AAP—American Academy of Pediatrics
Accepted for publication Jun 20, 2006
Address correspondence to Jon S. Vernick, JD,
MPH, Johns Hopkins Center for Gun Policy and
Research, Johns Hopkins Bloomberg School of
Public Health, 624 N Broadway, Baltimore, MD
21205. E-mail: jvernick@jhsph.edu
PEDIATRICS (ISSN Numbers: Print, 0031-4005;
Online, 1098-4275). Copyright © 2006 by the
American Academy of Pediatrics
2168 VERNICK et al
by guest on June 12, 2013pediatrics.aappublications.orgDownloaded from
O
N JANUARY 20, 2006, a remarkable bill was intro-
duced in the Virginia State legislature. Approxi-
mately 1 month later, on February 24th, a nearly iden-
tical bill was introduced in West Virginia as well. Each
bill would have profoundly affected the relationship be-
tween a physician and his or her patients.
Pediatricians and other primary care doctors routinely
counsel their patients about the risks associated with
certain behaviors, environments, or products. In the
area of childhood injury prevention, such anticipatory
guidance often includes providing parents with informa-
tion about the importance of such things as using child
car seats, installing smoke alarms, and storing household
poisons safely.
1
Virginia House Bill (HB) 1531
2
and West
Virginia HB 4845
3
would have prohibited a physician
from asking a patient if he or she owned a firearm for the
purpose of counseling that patient about ways to reduce
the risks associated with firearms. The possible penalties
included revocation of a physician’s license to practice
within the state. The Virginia bill garnered substantial
support, but neither bill was ultimately enacted. Practi-
tioners have probably not heard the last of this type of
bill in these and other states in the future.
In this article we examine (1) the 2 bills and their
legislative fates, (2) the effects the bills could have had
on physician counseling of patients about firearms, (3)
the potential medical-malpractice implications of the
bills, (4) freedom-of-speech issues raised by the bills, and
(5) reasons to believe that similar legislation is likely to
be introduced in the future.
THE VIRGINIA AND WEST VIRGINIA BILLS
Virginia HB 1531, if enacted, would have forbidden
“[o]ral or written inquiry to a patient concerning the
possession, ownership, or storage of firearms, where
such inquiry has no relationship to the practice of the
healing arts or the medical condition of the patient, and
is for the purpose of gathering statistics or to justify
patient counseling, unless such inquiry is the subject of
a request, or related to a medical complaint, made by the
patient.”
2
This language is added to a list of other “unprofes-
sional conduct” that can be “grounds for. . .disciplinary
action.”
2,4
Other such conduct, already part of Virginia
law, includes fraud or deceit, substance abuse that ren-
ders a practitioner unfit, and conducting one’s practice
in a manner that places patients in danger. Penalties
include the state’s ability to “refuse to admit a candidate
to any examination; refuse to issue a certificate or license
to any applicant; reprimand any person; place any per-
son on probation for such time as it may designate;
suspend any license for a stated period of time or indef-
initely; or revoke any license....
4
On its face, the Virginia bill forbids a physician to ask
a patient about ownership, possession, or storage of
firearms if the physician intends to use that information
to either (1) gather data about firearms or (2) engage in
patient counseling, often referred to as anticipatory
guidance. An exception is made if it is the patient who
raises the issue of firearms or if the “medical complaint”
is related in some way to guns. Technically, therefore,
under the bill a physician could provide counseling
about firearms to all patients as long as patients were
never asked about gun ownership. In practice, of course,
it would be awkward and inefficient, at best, for a phy-
sician to advise a patient about gun safety without first
inquiring whether that patient has a gun. For example,
one does not usually advise those who do not own a
motorcycle about the health benefits of wearing a mo-
torcycle helmet. Alternatively, the physician could
choose to provide counseling only to those patients who
specifically raise the issue themselves. This would ex-
clude, of course, the vast majority of patients, many of
whom might benefit from counseling.
On February 13, 2006, HB 1531 was brought up for a
vote in the Virginia House of Delegates. It passed with 88
legislators in favor and only 11 opposed. Next, the bill
was forwarded to the Virginia State Senate Committee
on Education and Health for consideration. The National
Rifle Association (NRA) Institute for Legislative Action
quickly weighed in on the matter. It urged Virginia NRA
members to contact the committee and express their
support. The NRA described the bill as designed to “pro-
tect you from intrusive, unnecessary questions from
medical professionals.”
5
The Virginia chapter of the
American Academy of Pediatrics (AAP) also responded.
In its words, it worked to “educate lawmakers that the
legislation was an inappropriate advancement of the
government into the clinical practice of medicine” (AAP
state government affairs e-mail update, March 21,
2006). On February 23, 2006, the bill was defeated in
the Virginia Senate Committee bya9to6vote, ensuring
that it would not be enacted into law this year in Vir-
ginia.
The next day, a bill with virtually identical language
was introduced in the West Virginia legislature as HB
4845.
3
No hearings have been held, and the West Vir-
ginia legislature has since adjourned its regular session.
As a result, any additional action this year is unlikely.
ANTICIPATORY GUIDANCE AND FIREARMS
A substantial body of research has demonstrated that, on
balance, firearms in the home pose significant risks.
Guns in the home are associated with an increased risk
of suicide,
6–8
homicide,
9–11
and firearm-related uninten-
tional injuries.
12,13
The increased risk of suicide is partic-
ularly striking for younger persons and in homes where
guns are stored loaded and/or unlocked.
14
Survey re-
search indicates that in 10% of gun-owning house-
holds with children, at least 1 firearm is stored both
loaded and unlocked.
15
In addition, parents are often
unaware that their children know where guns are stored
PEDIATRICS Volume 118, Number 5, November 2006 2169
by guest on June 12, 2013pediatrics.aappublications.orgDownloaded from
in the home or that the children have handled those
guns without supervision.
16
Recognizing these risks, some medical societies rec-
ommend that their members counsel patients about risks
associated with firearms in the home and the value of
safe storage practices. For example, the AAP has a policy
statement concluding that “loaded firearms and un-
locked firearms and ammunition represent a serious
danger to children and adolescents.”
17
The AAP, there-
fore, urges pediatricians and other child health profes-
sionals to “incorporate questions about guns into their
patient history taking.”
17
The American College of Phy-
sicians makes similar recommendations to its members.
18
Thus, the Virginia and West Virginia bills are directly at
odds with the best-practices recommendations of these
medical societies.
19
The bills would essentially codify the judgment of
legislators, rather than physicians, about what is best for
patients. Also, there is indeed evidence that anticipatory
guidance regarding firearms can reduce risks for pa-
tients. In controlled trials, individuals who received phy-
sician counseling were more likely to report the adop-
tion of 1 or more safe gun-storage practices
20
or the
purchase of trigger-locking devices
21
than those who did
not receive counseling.
Furthermore, the bills would treat anticipatory guid-
ance for firearms differently than counseling for all other
products or injury risks such as wearing seat belts or
reducing cigarette smoking. There is no scientific basis
for this distinction. Restricting a physician’s ability to
prevent injury or death from just one cause, among
many other possible causes, is arbitrary and illogical.
MALPRACTICE IMPLICATIONS
In addition to interfering with a health care provider’s
relationship with his or her patients, had either of the 2
bills become law they could have actually created a
potential malpractice trap for providers. Health care pro-
viders are expected to follow a reasonable standard of
care in their interactions with patients. If the failure to
follow an appropriate standard of care causes a patient to
be harmed, a provider may be liable for damages. In
general, the standard of care is that the provider “must
have and use the knowledge, skill and care ordinarily
possessed and employed by members of the profession in
good standing.”
22
Courts and expert witnesses have often used AAP and
other practice guidelines as evidence for what a specific
standard of care should be.
23,24
The AAP firearm guide-
lines suggest that a reasonably prudent pediatrician
should inquire about the presence of guns in the home
and counsel patients about the risks of firearms. Al-
though we know of no reported cases that found a
pediatrician liable for failure to counsel about firearms, a
pediatrician’s duty in this regard might be seen as even
more compelling if he or she knows, for example, that a
depressed teenager lives in the home.
This duty is clearly at odds with the prohibitions in
the Virginia and West Virginia bills. Had those bills be-
come law, a pediatrician who asked his or her patients
about firearm ownership for the purpose of anticipatory
guidance would have placed his license to practice med-
icine at risk. A pediatrician who failed to inquire about
firearms and counsel appropriately might have been
subject to a malpractice claim if a child were injured or
killed as a result.
The AAP policy statement regarding firearms does
include the following footnote, found on all AAP policy
statements: “The recommendations in this statement do
not indicate an exclusive course of treatment or serve as
a standard of medical care. Variations, taking into ac-
count individual circumstances, may be appropriate.”
17
Whether this statement is adequate to dissuade a court
from nevertheless considering the AAP’s policy, or sim-
ilar policy statements, as evidence of a standard of care is
uncertain. This is an uncertainty to which practitioners,
seeking only to protect their patients, should not be
subjected.
Certainly, the absolute risk that a physician would be
liable for failure to counsel patients regarding firearms is
probably quite low. However, the disjunction between
the requirements of the Virginia and West Virginia bills
and a physician’s obligations to his or her patients under
traditional legal principles serves to further illustrate one
of the problems associated with the 2 bills.
FREEDOM OF SPEECH
At their core, the Virginia and West Virginia bills forbid
physicians to speak certain words to their patients—
words used to question patients about their firearm
ownership or storage and provide subsequent anticipa-
tory guidance. Any prohibition of speech by the state
potentially violates the First Amendment of the US Con-
stitution. The First Amendment states, in part, that
“Congress shall make no law. . .abridging the freedom of
speech.”
25
This prohibition applies to state laws as well.
Of course, like all of the rights in the Constitution, the
freedom of speech is not absolute. Perhaps the most
well-known exception is the acknowledgment that the
First Amendment would not protect someone who
falsely shouted “Fire!” in a crowded theater.
26
In fact,
governments have enacted numerous restrictions on
speech.
It is unquestioned that states have the authority, con-
sistent with the Constitution, to license the practice of
certain professions such as medicine.
27
A state’s ability to
condition receipt or retention of a medical license on the
prohibition of certain speech is less clear. The Supreme
Court has never directly addressed a speech restriction
such as that mandated by the Virginia and West Virginia
bills. But, the Court has issued rulings in some related
2170 VERNICK et al
by guest on June 12, 2013pediatrics.aappublications.orgDownloaded from
cases that may shed light on whether the speech restric-
tions in those bills would be permissible.
In Planned Parenthood v Casey, the Supreme Court
considered the constitutionality of a Pennsylvania law
that, among other provisions, required physicians per-
forming abortions to give certain state-mandated infor-
mation to patients. The court upheld this required
“speech,” writing: “To be sure the physician’s First
Amendment rights not to speak are implicated. . .but
only as part of the practice of medicine, subject to rea-
sonable licensing and regulation by the State. We see no
constitutional infirmity in the requirement that the phy-
sician provide information mandated by the State
here.”
28
In Rust v Sullivan, a case also involving abortion, the
issue was not state-mandated speech but, instead, a fed-
eral law and accompanying regulations that forbid orga-
nizations to use certain federal funds to “provide coun-
seling concerning the use of abortion as a method of
family planning or provide referral for abortion as a
method of family planning.”
29
Several organizations and
their staff physicians challenged the law as a violation of
the First Amendment. The Supreme Court upheld the
law. It concluded that Congress was free to condition the
receipt of federal funds on the requirement that those
funds be used only in a specific way. The court observed
that the organizations were not required to accept the
money and that the staff, if they wished, could pursue
abortion-related projects on their own time.
30
Of course,
unlike in Rust, the Virginia and West Virginia bills would
apply to all physicians, because one must have a license
to practice to speak as a physician at all.
Another series of cases also involves the prohibition
of a particular kind of speech by professionals: advertis-
ing or soliciting clients. In general, the Supreme Court
has frowned on efforts to prohibit advertising by profes-
sionals (usually attorneys),
31
although some prohibitions
designed to protect the public from invasive advertising
have been upheld.
32
By comparison, the court has up-
held state laws prohibiting in-person solicitation by pri-
vate attorneys under circumstances likely to make it
difficult for a potential client to make an informed
choice.
33
Despite these mixed signals from the Supreme Court,
it is important to recognize that any law implicating the
First Amendment must still have at least some reason-
able basis to be constitutionally sound. This means that
laws cannot be arbitrary; there must be some reasonable
relationship between the law and a permissible goal of
government, such as protecting the health, safety, or
welfare of its people. Given the evidence regarding the
risks of guns in the home and the potential benefits of
anticipatory guidance, however, the Virginia and West
Virginia bills may lack even a reasonable basis.
CONCLUSIONS
Although neither the Virginia nor West Virginia bills
became law this year, there are reasons to believe that
this issue may return in the near future. The strong
showing in the Virginia House of Delegates suggests that
this type of bill may have surprising support in some
states. The quick introduction of a virtually identical bill
in West Virginia implies the possibility of a concerted
strategy.
In fact, the NRA has a history of very successful
multistate legislative strategies. Largely as a result of
NRA lobbying efforts, a majority of states now have laws
that make it easier for most citizens to obtain a permit to
carry concealed weapons
34
and forbidding local govern-
ments from enacting their own gun laws.
35
The Virginia
and West Virginia bills could be the NRA’s, or some
other group’s, next focus. As a long-time proponent of
these laws, Dr Timothy Wheeler, writes: “this was not a
bad showing for a first try at a boundary violation bill”
36
(emphasis added).
On the more hopeful side, the story of the Virginia bill
also demonstrates the effectiveness of physician organi-
zations in responding to bills such as these. Physicians
were able to educate policy-makers about the threat to
the doctor-patient relationship posed by the bill and,
ultimately, to defeat it. However, health care providers
should remain prepared to respond to similar state leg-
islative initiatives in the future.
REFERENCES
1. Wilson MH, Baker SP, Teret SP, Shock S, Garbarino J. Saving
Children. New York, NY: Oxford University Press; 1991
2. House Bill 1531, Virginia General Assembly, introduced Janu-
ary 20, 2006, as amended February 10, 2006
3.