Nobody in the GVP or medical communities (except Rand Paul) is happy with the decision by the 11th Circuit to continue upholding the Docs-Glock statute enacted in the Gunshine State. But there was a comment in the latest decision which may, in the long run, make the argument in support of the law null and void. But before I explain why I think there may be a silver lining, I should spend a few words discussing where the case stands right now.
As you probably know, the original law was enacted in 2011 and similar statutes have been introduced but not voted in at least 12 other states. Basically the law prohibits physicians from asking patients about gun ownership unless the physician believes that access to guns poses an immediate health risk. But by asking physicians to limit inquiries about any matter unless they have already decided that such inquiries might reveal a medical risk is to stand the entire methodology for assessing patient health on its head.
The pro-gun bunch has been trying to push medicine out of the gun debate ever since physicians first began talking about guns as risk to health. The gun industry continues to pretend that we should ignore endless studies which show that gun ownership is linked to increases in both homicide and suicide rates; in fact, they promote the fiction that guns are a positive social element because it’s an armed citizenry that protects us from violence and crime.
Much of the latest decision upholding the Florida law simply repeats the rather dubious claims about 2nd Amendment rights that littered the original 11th Circuit majority decision handed down last year. In that decision, the two-to-one majority hearing the case decided that asking a patient whether he or she owned a gun put the physician in the position of deciding whether that particular patient should have guns at all; hence, a restriction on the Constitutional right to own a gun.
This seems to me and to most scholars who have examined the decision to be a stretch. And not just a little bit. After all, Florida law doesn’t prohibit doctors from asking patients if they engage in sex, even though sexual activity is protected under the Constitutional rights to privacy that were enunciated in Roe versus Wade. But the reason that the doctor’s 1st Amendment right to ask any and all questions is trumped by the 2nd Amendment is really based on the fact that “the balance of power between doctor and patient will often make a patient feel as if he has no choice but to listen and answer a doctor’s questions.” Hence the 11th Circuit is protecting the patient who otherwise might feel vulnerable or threatened in asserting his 2nd Amendment rights.
Judge Gerald Tojflat (who wrote the majority decision) was fresh out of law school in 1963 when the Nobel prize-winning economist Kenneth Arrow published a paper in which he claimed that health care could not be understood as just another form of market economics because of the special relationship that existed between the seller (doctor) and purchaser (patient) of health products, procedures and advice. Basically Arrow argued that patients could not exercise market decisions when choosing a doctor because of the physician’s superior knowledge and special skills.
That was 1963. This is almost 2016. I don’t know which planet Judge Gerald Tjoflat inhabits, but he’s simply out of step with modern times. The idea that the average patient walks into a doctor’s office believing that he can’t or won’t speak up at every possible moment during a medical exam may have been typical of the doctor-patient relationship when Tjoflat was just starting his legal career, but it sure as hell isn’t true today.
Between the internet, alternative medicine, patient-centered care, patient’s bill of rights, and HIPAA, Judge Tjoflat’s notion that today’s patient feels vulnerable and helpless in relation to his physician is a relic of the distant past. But he also probably believes that guns protect us from crime.