Wollschlaeger v. Governor of Florida — Feb. 2017 (Summary)

PHYSICIAN-PATIENT RELATIONS  RE:  GUN OWNERSHIP

Wollschlaeger v. Governor of Florida
No. 12-14009 (11th Cir. Feb. 16, 2017)

The United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part a district court’s ruling on the constitutionality of a Florida law which restricted physicians and other medical professionals from asking patients about their ownership and use of firearms.  The law also prohibited physicians from entering information into a patient’s medical record about firearm ownership or use if the physician knew that such information “is not relevant to the patient’s medical care or safety or the safety of others.”  According to the law at issue, violations could lead to disciplinary action by the Florida Board of Medicine, including a $10,000/violation fine, reprimand, compulsory remedial education, or license revocation.

The law had been adopted in response to complaints from six patients about questions they had been asked by their physicians regarding firearm ownership.  The intent of the law was to protect patient privacy, to protect the Second Amendment rights of patients, and to protect patients from verbal harassment and discrimination based on their ownership of firearms.  A number of physicians filed suit challenging the law, soon after its adoption, claiming that the law forced them, against their professional judgment, to engage in self-censorship and, therefore, violated their First Amendment rights.

In reviewing the challenge to the law, the circuit court said “the question…is whether, in a state with more than 18 million people…six anecdotes…are sufficient to demonstrate harms that are ‘real, [and] not merely conjectural,’ such that the [law] ‘will in fact alleviate these harms in a direct and material way.’”  The court concluded that even if there was a possible conflict between the First Amendment rights of physicians and the Second Amendment rights of patients, the law, as written, did not advance the legislative goals in a permissible way.

The court also concluded that concerns that patients would be harassed by the questions asked by their physicians, absent the law, was similarly unfounded.  The court pointed to equally uncomfortable discussions physicians typically have with patients about other private matters like sexual activity.

Ultimately, the court concluded that the provisions of the law, which required physicians to limit their inquiries about the ownership of firearms, limit what information they could enter in the medical record, and refrain from harassment, did not advance the legislative goals of protecting patient privacy, regulating the medical profession, and safeguarding Second Amendment rights in a permissible way.

The court upheld the anti-discrimination provisions of the law which prohibited physicians from discriminating against patients because of their ownership of firearms.