BNAs

Health Law
Reporter
VOL. 24, NO. 31

Physicians

Second Go at Docs vs. Glocks Case Ends

With Rejection of Doctors Free Speech Claim
econsidering a previous holding in a closely
watched case, a federal appeals court has rejected
doctors challenge to a Florida law restricting
them from asking about patients firearm ownership,
unless relevant to treatment (Wollschlaeger v. Governor 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 popularly
known as Docs vs. Glocks, but reached the same result it did in a July 2014 opinion, upholding certain provisions of Floridas Firearm Owners Privacy Act, Fla.
Stat. 381.026, 456.072 and 790.338. The case pitted
doctors, who said they should be able to ask patients
about gun ownership because its a safety issue, against
the states privacy law.
The case could have nationwide implications, since at
least 12 other statesAlabama, Kansas, Minnesota,
Missouri, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas and West
Virginiahave considered adopting similar laws that
preclude doctors from asking patients about gun ownership, although none has yet done so.
The decision might prompt some of those states to
move forward with that proposed legislation, Anthony
T. Caso, of the Dale E. Fowler School of Law of Chapman University, Orange, Calif., told Bloomberg BNA. It
also stands as a reminder to individuals to be aware of
what information is placed in their medical files, especially with federal laws mandating that providers use
and maintain electronic health records.
Caso, who filed an amicus brief on behalf of Doctors
for Responsible Gun Ownership, said he believed the
court dealt accurately with the physicians First Amendment claim, considering the impact of this line of questioning on patients significant privacy rights.
But Douglas Hallward-Driemeier, of Ropes & Gray,
Washington, called the majoritys opinion deeply concerning, saying it marks the first time a court has upheld a states attempt to silence doctors from engaging
in patient counseling that it is uniformly recommended
by all the relevant national medical associations.
In a written statement provided to Bloomberg BNA,
Hallward-Dreimeier said the Florida legislature ad-

COPYRIGHT 2015 BY THE BUREAU OF NATIONAL AFFAIRS, INC.

AUGUST 6, 2015

opted the Firearm Owners Privacy Act with the avowed

purpose to silence a purported political effort on the
part of doctors to counsel patients about risks and safe
practice associated with the presence of guns in the
home. Such viewpoint-based discrimination is almost
never permissible under the First Amendment.
Hallward-Dreimeier represented the plaintiffs.

Unwelcome Questions. Unlike its previous opinion, in

which the court held that the law was a legitimate regulation of professional conduct, the court addressed
head-on the doctors claim that the law violated their
free speech rights. Applying intermediate scrutiny under the First Amendment, the court said the law was, on
its face, a permissible restriction of physician speech.
The court said the act codified the commonsense conclusion that good medical care does not require inquiry regarding firearms when unnecessary to a patients care. Such an inquiry would constitute a substantial 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 asking patients about gun ownership, recording that the
patient owns firearms, harassing a patient about gun
ownership and discriminating against a patient based
on gun ownership. The first three provisions carry a caveat that permits doctors to discuss gun ownership if
relevant to the patients medical care or safety.
A violation of any of these provisions constitutes
grounds for disciplinary action against a provider, including fines, practice restrictions, the return of patient
fees, or the probation, suspension or revocation of the
physicians license.
The Florida Legislature adopted the provisions after
members received complaints from their constituents
that health-care providers were asking unwelcome
questions regarding firearm ownership and that the
patients were being harassed or discriminated against
based on their refusal to answer such questions or
simply due to their status as firearm owners, the
court said.

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The plaintiffs, Dr. Bernd Wollschlaeger and others,
including the Florida chapter of the American Academy
of Pediatrics (AAP), challenged the law in the U.S. District Court for the Southern District of Florida. The district court preliminarily enjoined the inquiry, recordkeeping, discrimination and harassment provisions after finding that all four violated the doctors First
Amendment rights by placing content-based restrictions on the physicians speech (Wollschlaeger v.
Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012)) (20 HLR
1421, 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, 2014
BL 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 rehearing and vacated its earlier opinion.

Provisions Implicate Speech. In its new opinion, the

Eleventh Circuit agreed with the plaintiffs that the inquiry, record-keeping and harassment provisions implicated speech, as that term is understood in the constitutional sense. It rejected the states argument that those
provisions regulated conduct having only an incidental
effect on speech, which would be beyond First Amendment protection.
The court next determined that an intermediate level
of scrutiny applied to determine if the provisions violated physicians First Amendment rights. To survive intermediate scrutiny, the state must show that a regulation directly and materially advances a substantial
state interest without sweeping more broadly than
necessary.
This level applied instead of strict scrutiny because
states traditionally have a substantial interest in protecting the public from unprofessional, incompetent
and irresponsible physicians, the court said. Moreover,
the states interest in protecting the public by regulating the medical profession so as to safeguard patient
privacy is substantial, it said.
Additionally, the state met its burden of demonstrating that the act advanced those interests. The record
contained anecdotal evidence of complaints made to
lawmakers by constituents who felt doctors invaded
their privacy by asking about gun ownership. The regulations were meant to end that unwelcome questioning, but only in circumstances where it would be irrelevant to the patients medical care.
Doesnt Preclude All Discussion. The provisions didnt,
the court said, prohibit doctors from inquiring into, recording or harassing patients about gun ownership
when the information would be relevant, such as when
treating a patient with suicidal tendencies. Caso told
Bloomberg BNA that the court was right. There might
be legitimate reasons for asking about firearm ownership in certain, limited situations, he said.
The act was intended to protect patient privacy, not
preclude all discussions of firearm safety. It merely requires physicians to refrain from broaching a conced-

edly sensitive topic when they lack any good faith belief
that such information is relevant to the medical care or
safety of their patients or others, Caso said.
Hallward-Dreimeier, however, said the courts analysis fails to appreciate the extent of the laws intrusion
on doctors speech. The idea that the provisions only
forbid speech that doctors know to be irrelevant is not
remotely accurate, he said. Doctors seek to engage
patients in discussions about guns in the home as a matter of preventive medicine, based on the belief that such
discussions are always relevant to patient health and
safety.
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 interferes with physicians ability to deliver safe care, and
hinders patients access to the most relevant information available.
Providing firearm safety counseling to patients
helps prevent gun-related injuries and deaths, Stack
said, referring to studies showing that patients who received such counseling from physicians were more
likely to adopt safe firearm storage practices. The political interests of state lawmakers do not justify infringing on the patient-physician relationship and stifling
confidential medical discussions that are proven to save
lives.

Imbalance of Power. The court concluded that, considering the imbalance of power between a doctor
and patient, it was clear that extracting private information from a patient, knowing such information to be
irrelevant to the provision of medical care, is a real
harm. Thus, it is a matter of common sense to restrict physicians from unnecessarily inquiring into firearm ownership.
Judge Gerald B. Tjoflat wrote the opinion, which was
joined by Judge L. Scott Coogler, of the U.S. District
Court for the Northern District of Alabama, sitting by
designation.
Judge Charles Reginald Wilson, while calling the majoritys focus on the First Amendment issue an encouraging development, maintained that, even under an intermediate level of scrutiny, the provisions didnt pass
constitutional muster. Wilson called the law a gag order that prevents doctors from even asking the first
question in a conversation about firearms. The law
significantly chills doctors from expressing their views
and providing information to patients about one topic
and one topic only, firearms.
Next Step. Hallward-Dreimeier said the plaintiffs attorneys would be discussing the decision with their clients, and that they plan to seek further review. Caso
told Bloomberg BNA that he wouldnt be surprised to
see the plaintiffs file a request for review with the Supreme Court, but he thinks it would be long shot.
Dr. Anne Edwards, a pediatrician in Minneapolis,
who chairs the AAPs committee on state government
affairs, told Bloomberg BNA that the case was far from
over. AAP, she said, was just beginning to consider

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8-6-15

COPYRIGHT 2015 BY THE BUREAU OF NATIONAL AFFAIRS, INC.

HLR

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the opinion. Edwards also told Bloomberg BNA that
she doesnt expect the ruling to prompt other states to
reconsider legislation restricting doctors rights to talk
to 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, Washington; Hal M. Lucas, of Hal M. Lucas PA, Miami; and Edward M. Mullins, of Astigarraga Davis, Miami represented the plaintiffs. Jason Vail, Allen C. Winsor, Pam
Bondi and Timothy David Osterhaus, of the Florida At-

BNAS HEALTH LAW REPORTER

ISSN 1064-2137

torney Generals Office, Tallahassee, represented the

state.

BY MARY ANNE PAZANOWSKI

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bna.com
To 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.

BNA

8-6-15