The Question Doctors Can't Ask

When police in Texas City, Texas, arrived at a suburban apartment on August 7, they found an eight-year-old boy who was seriously injured. He had been shot in the face, and the shooter was still in the home. His seven-year-old cousin pulled the trigger.

A helicopter swept the victim 40 miles north to a Houston hospital, where he was taken into emergency surgery in critical condition. He is alive, and poised to elude a place among the 3,000 U.S. children who will die this year as a result of gunshot wounds. In 2009, 114 kids died as a result of unintentional gunshots—almost all of them in their own homes, and most commonly shot by other children.

In recent years a mantle to prevent these shootings has been taken up by physicians. Most professional governing bodies now recommend that doctors ask patients some variation on “Is there a gun in your home?” If the answer is yes, the physician is meant to ask about it being properly secured. 

The American Academy of Pediatrics likens counseling on gun safety to counseling on lead paint avoidance or seat belt use. Pediatricians, the group’s recent policy statement reads, are “urged to counsel parents about the dangers of allowing children and adolescents to have access to guns inside and outside the home.” Doctors are encouraged to promote trigger locks, lock boxes, and gun safes. Some distribute cable locks. The American College of Physicians is similarly proactive, calling gun violence a public health issue "requiring immediate attention." The group, of which most practicing internal-medicine doctors are members, declared in its recent position statement: "Physicians must become more active in counseling patients about firearm safety." The college implores doctors to open that conversation by asking patients (with and without children in their homes) about gun ownership.

As of two weeks ago, that is no longer legal in Florida. In a 2-1 vote, a U.S. Court of Appeals upheld a law called the Florida Privacy of Firearm Owners Act, ruling that doctors asking patients about firearms violates patients' right to privacy.

“The act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care,” Judge Gerald Tjoflat wrote in the court's majority opinion.

The American Medical Association calls gun violence a horrific epidemic. In 2011, the group issued a call for doctors to counsel patients on gun safety. In response, Florida Governor Rick Scott, backed by the National Rifle Association, signed the Privacy of Firearm Owners Act that June. Florida physicians objected immediately. A federal judge in Miami issued an injunction on grounds that the law violated First Amendment rights of physicians, and for three years it sat neutralized. As Robert McNamara and Paul Sherman, attorneys at the Institute of Justice, put it in a New York Times editorial just after the July 25 injunction overturning by the appeals court, “Everything a doctor says to a patient is 'treatment,' not speech, and the government has broad authority to prohibit doctors from asking questions on particular topics without any First Amendment scrutiny at all.”

Dr. Bart Kummer, a gastroenterologist at New York University Medical Center, says he always asks his patients about guns.

“It's part of reducing risks, and taking a view of the patient as not just a GI tract that ambles in on two feet," Kummer told me. "So I ask about seat belts, helmets, safe sex, the standard questions about alcohol, tobacco, caffeine, hours slept, hobbies—some people work with molten metal—and what the American College of Physicians has asked us to ask our patients: whether there's a gun in their house.”

If the answer is yes, he asks what kind of gun. "Is it a hand gun, a long gun, a rifle, a shotgun? You can lock them up differently, but all of them can have trigger locks, and all of them can have ammunition stored separately." Independent of the gun question, Kummer asks, "Who's in your home?"

"People think they can hide things from their children," Kummer said. "Those of us who are parents know that children will find anything in your house. You cannot hide a gun from a child. It has to be in a locked safe."

People are also more likely to kill themselves in a moment of despondency if they have a gun handy, Kummer noted. "When we're screening for depression, gun ownership is worth knowing."

Sometimes the questions come on waiting-room paperwork, and sometimes a nurse or physician assistant might do the asking. In any case, lifestyle questions do make many patients nervous, Kummer said, "often because they’re not used to doctors taking an interest in their social setting." Some patients get downright angry by screening questions. “But the gun question is the one that upsets people the most. And the people who get upset are usually the people who own guns—they get really, really offended by my asking that question."

"I think they often feel that they're beleaguered," Kummer said, "that they're going to be demonized as being crazy because they have a gun. Or that I'm some liberal nut who's going to tell them that they should throw it in the river. Or they're afraid I'm going to denounce them to the police and the FBI, and the black helicopters are going to come napalm their house."

Dissenting judge Charles Wilson called the law "a gag order that prevents doctors from even asking the first question in a conversation about firearms.” He hit on Kummer's observation of partisan overtones in writing that the law is “designed to stop a perceived political agenda, and it is difficult to conceive of any law designed for that purpose that could withstand First Amendment scrutiny.”

The American Medical Association and American College of Physicians have taken clear stances in the realm of gun politics, with the former outspoken in its support of a ban on assault weapons and the latter imploring physicians to become "more involved in community efforts to restrict ownership and sale of handguns.”

Still, Wilson told Christian Science Monitor, “Regardless of whether we agree with the message conveyed by doctors to patients about firearms, I think it is perfectly clear that doctors have a First Amendment right to convey that message.” 

The court addressed that objection in the majority opinion: “We find that the Act is a valid regulation of professional conduct that has only incidental effect on physicians’ speech. As such, the Act does not facially violate the First Amendment.”

Bronx preventive and family medicine physician Dr. William Jordan, president-elect of the National Physician’s Alliance, protested the ruling in another New York Times editorial on Thursday: “I see patients who lost a loved one to gun violence or who have post-traumatic stress from witnessing or being a victim of gun violence. Some judges say that asking a question about gun safety is a form of treatment. As a doctor, I believe that asking this question is part of my sworn duty."

"Many of my patients wish that a doctor had asked them sooner about gun safety,” Jordan wrote.

Jordan's predecessor in presidency of the National Physician’s Alliance, Dr. Cheryl Bettigole, likened firearm counseling to car-seat counseling for parents. From 2000 to 2009, the number of vehicle miles traveled increased by 8.5 percent, she noted in the introduction to a recent policy statement. Yet the rate of travel-related death went down. “Sadly, during the same years,” Bettigole wrote on behalf of the alliance, “we did not see parallel implementation of safety efforts to reduce the number of deaths from gun violence. Instead, due to pressure from National Rifle Association leaders and lobbyists, we saw Congress muzzle public health research related to gun violence and its prevention. We saw academic paralysis on one of this country’s major public health crises. The cost of our inaction has been astounding.”

A less politicized reason why people are apprehensive about answering screening questions, Kummer has noticed, has arisen since the Snowden leaks. Patients are altogether reluctant to share information. Electronic medical records will save inordinate time and money for the healthcare system, but assenting to have private information included in a searchable database is, for many people, not immediately enticing.

And as in any discussion of gun regulation, arguments turn to slippery slopes of rights infringement. Only this time, it's gun-safety advocates brandishing the Constitution.

Judge Wilson called his court's decision unprecedented, essentially holding that licensed professionals have no First Amendment rights when they are speaking to clients or patients in private. “This in turn says that patients have no First Amendment right to receive information from licensed professionals–a frightening prospect.”

Physicians are concerned that, in addition to its public health implications, this decision opens the door to state interference in the patient-doctor relationship.

"It shouldn't be allowed to happen,” Kummer said. He believes anything that has to do with the health of his patients is his business. 

“Am I not allowed to ask if you wear a helmet when you ride your bicycle? Am I not allowed to ask if you smoke cigarettes? Am I not allowed to ask about your sexual orientation? It's not a value judgment, it's a health-related judgment. You can't let the state interfere with that."

Kummer recalls an instance of gun-safety screening that, he says, probably saved a life. When he asked about guns in the home, one patient said, “I don't have a gun, but my mother has a loaded gun in her bedside stand.”

“You seem concerned about that,” he said.

The patient went on to explain that her father had been a police officer, and he kept an off-duty revolver in his nightstand. When he died, that gun was never removed, and her mother was becoming increasingly demented. "And I'm thinking," Kummer said, "That's really a no-brainer."

“In general, dementia and guns are not a good combination," Kummer said. "As some people get older, they get paranoid. They think people are coming in to rob them, etc. I could see someone like her daughter coming into the bedroom, and her mother pulling the gun and shooting her. Or someone breaks into their home and steals the gun. So that was probably a good intervention."

In the immediate term, the hole in the law is this: It threatens doctors with professional discipline if they ask patients about gun ownership when doing so is not “relevant” to said patient’s medical care. But the statute does not define relevant.

Related: Why We Can't Talk About Gun Control