The consequences of prohibiting physicians’ 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.

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 appeals 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 saying 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, misguided judicial decisions can still be the law of the land.

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower

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