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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  • ninguem

    This did not come from nowhere.

    It was a reaction to busybodies on the other side who tried to require doctors to ask about firearms.

    I’d prefer that the busybodies from both sides, stay out of the patient exam room.

    Firearms and gun control are worthy subjects that deserve debate.

    Just don’t put the doctor in the middle of it.

    • CLJ Murphy

      Exactly.

  • QQQ

    “Nothing strengthens authority so much as silence.”

    -Leonardo da Vinci-

  • Ed

    Ask whatever you want but we’re free to tell you it’s none of your damn business!

  • ninguem

    Actually, the law provides for a “medical” exception to the prohibition.

    If you as a physician have a medical concern relevant to the guns, you can ask.

    You know, suicidal patients, that sort of thing. You can ask about guns.

    But in reality, you can medically justify asking anyone about guns if you want.

    I just can’t see any doctor getting in trouble over this.

  • guest

    Quite honestly, I am not sure why any physician would need to ask about gun ownership unless they were doing a risk assessment for either suicide or homicide. Which would fall into the “medically necessary” category.

    I don’t think our profession does itself a favor when we spend our patients’ precious time with us getting involved in public policy issues that are not relevant to the reason the patient has come to see us.

    That’s not to say that I think there should be a law against it, but the law came about because of physician activism in this area.

  • Hexanchus

    Eric,

    You are correct. Freedom of speech is the political right to communicate one’s opinions and ideas to anyone who is willing to receive them. There is nothing in there that allows someone to force their opinions on another person, or to ask them questions and expect a response. Freedom of speech is not all inclusive – there are a number of limitations. There are a couple of interesting articles on the uscourts.gov site on the topic of freedom of speech.

    Freedom of speech also includes a persons right not to speak if that is their choice. In that context, a physician insisting that a patient divulge information that the patient does not want to divulge is in fact violating the patients right of freedom not to speak.

    Bottom line, the only information a physician has any right to is that information which the patient chooses to share. Insisting that a patient provide information the patient is unwilling to divulge is also an invasion of privacy – especially when the information requested is not directly relevant to the specific immediate reason the physician is being consulted.

    Unfortunately the patient has limited options:
    1. Provide the requested information against their wishes.
    2. Stand by their principles and decline to provide the physician the information requested and weather the potential pi$$ing match or punitive acts by the physician that might result.
    3. Lie to the physician – give them the politically correct answer, and thereby avoid any pi$$ing match and potential punitive actions by the physician.

    While option #2 is morally and ethically the best choice, option #3 is the easiest way out and probably the best choice in most instances – it’s a win/win: the patient gets to keep their information private and the physician thinks they got the information they were looking for.

    • Eric Strong

      I sort of agree with you. I’ll say that freedom of speech, which still doesn’t apply here, doesn’t require another person to be willing to receive the opinion. (Just look at the Westboro Baptist idiots.)

      If a patient feels a question from a physician is an unwarranted invasion of privacy, they are under no obligation to provide an answer (a lie or not). This holds true irrespective of whether the doctor is asking about firearms, sexual behavior, drug use, seat belt safety, vaccination history, medication adherence, dietary patterns, or whether the smoke detector has working batteries.

      I’m not sure what “punitive acts” a physician could do in response to a patient declining to provide this information. Wag his/her finger at them? It’s not like a doctor is going to withhold a medication or specialty referral because a patient asked to not discuss whether he/she owns a gun. When a patient declines to answer a question of mine, all it does is make me wonder how I can improve the doctor-patient relationship to the point that I’m trusted with that information.

      • Hexanchus

        Eric,

        For the most part, I agree with you.

        Unfortunately, one of the major triggers that prompted the creation of the Florida law in the first place were several instances where a pediatrician terminated the patient because the parent refused to answer the question about firearm ownership. I would definitely call that punitive.

        The whole thing started with what many feel is an overzealous AAP political agenda. Enough pediatricians pushed it hard enough that there was a political backlash with the Florida law as the result. As a result, the physicians effectively “shot themselves in the foot” – pun intended.

        I have absolutely no issue with physicians providing all patients with firearm safety handouts, as long as the information contained therein is accurate and unbiased. If it gets even one person to think twice about the safe storage and handling of firearms, it’s worth it.

        That said, I also believe that physicians have no business asking about firearm ownership and including that information in a patient’s record, unless it is directly related to a specific medical situation (i.e. psych. with likelihood of doing harm to self or others).

      • rbthe4th2

        Punitive? How about phrasing things and putting things that aren’t true in a patients’ record to ruin them? I’ve had that done to me.

  • Eric Strong

    Even if the law is a bad idea (which it is), it isn’t a Constitutional issue that falls within the domain of what the Court typically rules on. It’s not that they would lose in the Supreme Court, but rather the Court wouldn’t even choose to hear the case at all.

  • Ava Marie Wensko George

    I would think that after this 9 year old girl shot the gun instructor in the head, there is a reason to ask if children are exposed to guns. That will psychologically impact that young girl for the rest of her life.

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