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Doctors and Guns:

Eugene's post on Saturday discussed an interesting bill before the Virginia legislature. It passed the Assembly 88-11, but was defeated in a Senate committee by a 6-9 vote. It seems that there is a reasonable chance that a similar bill might be introduced in the future in Virginia, or in other states. The bill states:

A. The Board may refuse to admit a candidate to any examination; refuse to issue a certificate or license to any applicant; reprimand any person; place any person on probation for such time as it may designate; suspend any license for a stated period of time or indefinitely; or revoke any license for any of the following acts of unprofessional conduct:... 22. Oral or written inquiry to a patient concerning the possession, ownership, or storage of firearms, where such inquiry has no relationship to the practice of the healing arts or the medical condition of the patient, and is for the purpose of gathering statistics or to justify patient counseling, unless such inquiry is the subject of a request, or related to a medical complaint, made by the patient.
The comments from Eugene's post raised many interesting arguments, on both sides of the issue. In this post, I would like to advance the debate and clarify the issues.

First, as I read the bill, it does not present a physician from inquiring about gun ownership in the home of a person who has demonstrated a high risk for suicide, or a person who has demonstrated a high risk for perpetrating a violent crime. Such persons should clearly be kept away from guns. Perhaps future bills should be modified to specifically include the exceptions.

Second, I think it's hardly clear that the bill would violate the First Amendment, or its Virginia counterpart (Art. I, sect. 12), which states:

That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
As Eugene noted in his post, the boundaries of protection of speech by licensed professionals are very unclear. The bill is in the form of a regulation of medical ethics, a subject which is unquestionably within the Virginia legislature's authority. The bill determines, as have previous bills setting standards for medical ethics, that certain actions by a health care provider are a violation of medical ethics. Dr. Timothy Wheeler and I have previously argued that it is a violation of medical ethics (under the principle of boundary violation) for physicians to push an anti-gun agenda during a patient interview.

The U.S. Supreme Court decisions striking down legal-ethics restrictions on attorney advertising show that some state-imposed ethical rules for licensed professionals can violate the First Amendment. I encourage commenters to supply information about actual court cases which have addressed free speech isues, outside the context of advertising, regading professional regulation.

Given that existing case law appears to provide little if any guidance on the issue, I do not think that a legislator would be violating her oath to uphold the state and federal constitutions if she voted in favor of the bill.

The much stronger argument against the bill is that it violates free speech values. A legislator could reasonably say, "Even if a court probably would not declare the bill unconstitutional, I favor very broad protection for free speech, and — even though I also favor the right to bear arms and received an "A" rating from the NRA in my last election — I oppose almost all restrictions on free speech, and so I will vote against the bill." Such an argument appears to be what we might have heard from Senator Volokh, had he been a member of Virginia Senate.

I do not think that this view is wrong, but I also believe that reasonable, constitutionally-faithful legislators could vote the other way.

Let me address some of the arguments which commenters offered regarding the bill.

Physician speech against gun ownership is offensive. This was a straw man offered by opponents of the bill. I hope that no reader of this weblog favors banning speech merely because it is offensive.

The practical reality of medical coercion, under 21st century conditions. As medical practice existed in the early 20th century, most doctors enjoyed vast autonomy, and so did most patients. If you don't like what the doctor says, take your money and go to a new doctor — just as you leave one restaurant you don't like, and go eat somewhere else. To extent that medical care in early 21st century America is delivered under this free choice model, the arguments for regulating physician speech are weaker.

However, as many commenters pointed out, a very large percentage of people do not have practical free choice in medical care. For example, their employer medical plan may funnel them into a single HMO. It's true, as a matter of libertarian theory, that somebody earning $18,000 a year could opt out of the company medical plan, and seek out her own physician. It's also true that legislators can base decisions on real-world conditions, rather than theory. In the real-world conditions under which a great deal of medical care may be delivered under conditions in which the consumer does not have, practically speaking, free choice, the argument for consumer protection against ethical violations becomes stronger.

One issue the commenters did not discuss was protection of physicians. Again, in the 1910 health care model, the physician had tremendous freedom. Under the working conditions of modern medicine, many doctors have considerably less freedom. They may ask patients about guns, and provide anti-gun counseling, not because they want to, but because they are ordered to do so by insurance companies, HMOs, etc. (Again, the physician could always go into solo practice and stop taking patients who want to use medical insurance, but legislators can respond to practical realities.)

Of course there are some physicians who sincerely do want to provide anti-gun counseling. As the commenters noted, the recommended practice of the American Academy of Pediatrics and other groups which promote asking about guns is to promote follow-up counseling urging people to get rid of their guns, or, at the least, to keep them locked up under conditions which may make them useless during a sudden emergency.

Part of a legislator's job is to weigh empirical evidence and make policy conclusions based on that evidence. There is substantial evidence to suggest that disarming law-abiding people, or convincing them to "lock up their safety" (as Gun Owners of America puts it) significantly harms public safety and promotes violent crime. There is also contrary evidence, but there are sufficient facts on which reasonable legislator could conclude that disarmament is such a serious danger to public safety that preventing unwarranted disamament is a compelling state interest. I'm not saying that a legislator must reach such a conclusion, only that a reasonable legislator could.

Alternatively, a legislator could legitimately be concerned that, although physician anti-gun counseling might have little aggregate impact on total firearms ownership in society, individual patients would be victimized by such counseling, and would be less safe in their homes as a result. There is sufficient evidence for a reasonable legislator to conclude that physician anti-gun counseling is junk science at its worst. (Click here for one example.) Reasonable legislators can differ, of course; I am just pointing out what a reasonable legislator could vote for the bill.

Another issue raised by commenters was gun registration. Again, in the 1910 model of medical practice, records about patient gun ownership would be widely diffused among many independent physicians. The record-keeping by individual physicians would not amount to a widespread registration system.

In contrast, today there is a very powerful trend towards the centralization of medical data. As some commenters pointed out, the centralizing trends are encouraged by insurance companies, health care corporations, and the government. Physician questioning and about firearms usually takes place in the context of the physician filling out a survey which becomes part of the patient's permanent medical record. There are many circumstances under which health survey data by a physician may be centralized by entities other than the physician. Federal law makes patient records available to law enforcement authorities under some circumstances.

There is no denying the historical facts that in the United States and in other countries, gun registration records have sometimes been used for confiscation. A person who wants strong protection the right to arms would generally favor preventing the accumulation of data which might facilitate gun confiscation, even if the risk of gun confiscation at present is very low.

Putting the confiscation risk aside, registration is, in itself, harmful to the right to arms. Even if there were no possibility of confiscation, constitutionally-sensitive people would oppose the creation of centralized lists regarding any aspect of a person's exercise of her constitutional rights. You shouldn't be put on a government list--or on the list of a big corporation which is heavily funded by the government and whose records are readily subject to government inspection--just because you exercised a constitutional right. That is one reason that Congress in 2003, and in 1986, 1968, and during World War II enacted legislation to block federal gun registration.

Again, I'm not saying that a legislator must be so constitutionally conscientious that she vigilantly blocks every form of gun registration. I'm saying that a reasonable legislator can be so conscientious, just as another legislator could be so conscientious about free speech as to oppose even constitutionally-valid regulation of licensed professionals.

Finally, there is the broader social question of whether legislatures or medical licensing boards should attempt to impose any controls about physician counseling (including counseling in a coercive context) about the exercise of other lifestyle choices. If there is some evidence that religious people are healthier and live longer, is there anything wrong with physicians encouraging patients to go to church? If the weight of evidence suggests that moderate drinking is healthier than abstention, then would we object if a physicians group working with a pro-drinking lobby (just as the American Academy of Pediatrics works with gun prohibition groups) succeeds in encouraging family practitioners to tell their patients "Drink up! It's good for you."

Persons who place free speech values first in their legislative priorities would oppose almost all restrictions on physician counseling--even if the athiest patient in Alabama feels oppressed when her HMO doctor tells her "You ought to start going to church. It's healthy."

I respect the speech-protective values of opponents of the Virginia bill. And I also see that proponents of the bill had good arguments about other constitutional values, public safety, and medical ethics. Perhaps the Virginia medical ethics bill is an occassion where both sides should agree that there were reasonable arguments for both positions.

farmer56 (mail):
If Doctor can council a patient about guns? Could a pharmicist council a patient about? The morning after pill?
2.28.2006 4:09pm
Cornellian (mail):
I'm wondering what happens if you enact that Virginia Bill, but instead of prohibiting questions or statements about gun ownership or control, you instead prohibit questions or statement pertaining to the re-election of any incumbent member of the Virginia legislature. If the legislature cannot prohibit the latter, why should they be able to prohibit the former?

I don't have a problem with the general idea of a state legislature's jurisdiction to regulate the medical profession, but this kind of bill makes me uneasy. What exactly is the rationale for it. I find it hard to see how it can realistically be described as patient protection unless you think patients will be harmed by hearing the doctor's opinion on the subject. And harmed how? By the "risk" that the patient will agree with it? I don't think doctors have anything like the aura of authority they used to have, and speaking for myself, I wouldn't give a doctor's opinion on gun control any more (or less) weight than the opinion of my next door neighbor or a random stranger in a supermarket. If I didn't want to her his opinion on my visit for a checkup, I'd tell him I don't care to hear his opinions, and if he persists, I'll find another doctor.
2.28.2006 4:09pm
Cornellian (mail):
Maybe to put it another way, I'd ask whether proponents of gun ownership rights are really going to buy this Trojan horse piece of legislation that will open the door to prohibiting doctor patient speech on any subject.
2.28.2006 4:10pm
te (mail):

There is substantial evidence to suggest that . . . convincing them to "lock up their safety" (as Gun Owners of America puts it) significantly harms public safety and promotes violent crime.


Really?
2.28.2006 4:18pm
A. Zarkov (mail):
As a practical matter a patient can protect himself by simply denying that he owns or has custody of a firearm even if he does. While it's generally a good idea to be honest with your physician, I don't think you need give a truthful answer to an improper and irrelevant question. However there is always the possibility that whatever answer you give, the physician will get it wrong, and your medical records will have inaccurate information. I was vividly reminded of this when I looked at my records from George Washington Medical Center. One physician made gross errors in my medical history ascribing conditions to me that actually applied to a relative.

Let's say you truthfully answer "no" to a question about possession of a firearm and the answer gets recorded as a "yes." Let's say that sometime in the future these medical records get used to implement a firearm confiscation program. You might find yourself in trouble when you truthfully assert that you don't possess any firearms. Of course there a lots of way inaccurate information might harm you, but why have one more?
2.28.2006 4:50pm
TDPerkins (mail):

Really?


Yes really. A locked gun is seconds--too many seconds--away when you need it, and good deeds or nothing at all is what the overwhelming majority of gun owners do with their guns, and it is what is done with the overwhelming majority of guns.

Really.

Yours, TDP, ml, msl, &pfpp
2.28.2006 4:52pm
logicnazi (mail) (www):
So it seems to me the reason this issue is so problematic is that doctors really have a dual role with regards to their patients. On on level they have a genuine professional relationship with their patient but on another level they cultivate genuine personal connections with their patient. Not that it is impossible for your accountant to also be your pal or have a personal relationship with you but it isn't as common or expected. In particular if your accountant is prevented by ethics rules from expressing their personal point of view about unrelated issues there is no serious infraction of free speech as the accountan-client relationship is almost entierly professional. As the doctor-patient relationship is partly personal there is an issue.

This suggests to me an obvious solution to the problem. The (reasonable) aim of the Virginian legislature is to prevent doctors from abusing their professional position, and government granted powers (prescriptions) to push their political/policy views.

While some might argue that the gun issue is part of valid professional position I think this is a subtle mistake. As the post indicates clearly not all practices affecting health are withing a doctor's professional purview. It would surely be wrong for a doctor to give atheist patients lectures about how responsible parents raise their child in a religious faith even though as the post points out there are studies supporting positive health effects of faith. It even seems clear that the legislature has a valid interest in regulating this sort of professional conduct, especially if it was a widespread practice.

However, it seems perfectly appropriate for a doctor to ask a patient about his faith during personal conversation or to request the patient take part in a study about the effects of faith on some medical issue. It even seems appropriate for the doctor to inform the patient about the study showing the benefits from religion as long as the doctor is not communicating a professional value judgement (you should join a religion/raise your kids in one) but merely giving advice. It would surely be horrible (if not unconstitutional) to stop doctors and patients from communicating about religious faith, even prostelatizing(sp?) during personal conversations. What we want is to make sure that doctors don't abuse their profesional role and encourage religion as a matter of professional conduct.

Ultimately I am inclined to say that informing patients as to the risks of gun-ownership, benefits of religion or whatever in a neutral way is indeed valid professional conduct. What is not valid professional conduct is to make the leep to the value judgement and imply that the patient ought not to have guns or ought to join a religion. Doctors are experts in health not in values and health trades off against other values. Thus the type of conduct the virginian legislature wishes to ban is indeed non-professional communication between doctor and patient.

As I pointed out before this type of communication between doctor and patient is important to building up a relationship. What is important to prevent is the giving of non-professional communication under the color of professional advice. In other words what we want to prevent is the doctor from saying you should not own guns in the way the doctor says you should not drink alcohol with this medication.

My favored solution is to simply require the doctor to preface any value judgement about guns with a statement to the effect that it is a value judgement not a medical judgement (unless it is very clear from context). Admitedly the two categories are vague and blur together but it seems the best we can do. Sure it won't stop doctors from merely asking about gun ownership but if the doctor says, "Studies show that having guns in the home increases the risk of childhood death by x%. Now as a doctor I can't tell you that you shouldn't keep guns in the home but just as one person to another I don't think that risk is worth the benefits."

Does this make everyone happy? Somehow I doubt it!
2.28.2006 5:00pm
e:
Just skimming, so I apologize if this was already said, but some parents are just plain dumb. While a pediatrician should not make gun control policy speeches or helmet laws under debate, he should be able to counsel on essential parenting skills including child-proofing houses. Not leaving glasses of bleach around the kitchen, guns on the couch, trampolines without supervision or guidance.
2.28.2006 5:24pm
Don Miller (mail):
I am a gun owner and strong supporter of the second amendment. I understand the spirit of this law, but feel it was not tailored appropriately.

Doctors have a unique position in our society. Many people believe anything that a doctor says. They are highly regulated and licensed to practice their profession. On the whole, they are bright people who got into their profession because they are compassionate and want to help other people. They hold a unique position of trust and confidence in most peoples lives. This position of trust is important for the doctor to be able to dispense good, accurate medical advice.

However, doctors counseling the parents of children about the dangers of gun ownership borders on political speech not medical advice.

To me it's a grey area. Is it appropriate for a medical practioner to have a political opinion on matters of public policy? Of course. They are free to lobby their represenatives for redress as appropriate. Is it proper for them to lobby the general population, under the guise of medical advice, to sway the public debate their direction? I am not so sure.

I would not be adverse to an ethical standard that says that a doctor can not abuse his position of trust and confidence by disguising political opinion as medical advice. A medical review panel would handle individual complaints the same as handling any other ethical complaint regarding doctors.
2.28.2006 5:30pm
Kovarsky (mail):
The legislation is directed at "inquiries," not comments. I can't help but think that some people are missing the point of the legislation - the reason it "protects" patients is because it prevents them from getting on gun-ownership lists that place them in high-risk pools for insurance companies. Doctors can ask you about other high-risk behavior (e.g. smoking, drinking, other drug use) to the extent that their knowledge of such behavior will help them treat you. All the analogies that I see on this thread fail here - the reason why the gun inquiry is of particular interest to the virginia legislatures is because it correlates with high-risk behavior. That's also the reason doctors ask about it, and that's certainly the reason insurance companies care about it. To frame this issue as one in which the Virginia legislature is considering the propriety of a doctor giving "advice" to patients about gun ownership is off-target. This legislation is about risk-prediction, and the appropriate variables to consider in conducting it.

Carefully parse the statute; a doctor can be punished if he conducts:

Oral or written inquiry to a patient concerning the possession, ownership, or storage of firearms (asks about guns)

AND

where such inquiry has no relationship to the practice of the healing arts or the medical condition of the patient

AND

is for the purpose of gathering statistics or to justify patient counseling

The inquiry is excused if:

such inquiry is the subject of a request, or related to a medical complaint, made by the patient.

This looks like a classic adverse-inference evidence rule. The Virginia legislature decided that not only was it a problem that patients were getting risk-pooled on the basis of affirmative answer to physician gun-ownership questions, but also because of adverse inferences drawn when the patients refused to answer them. The law quite plainly prohibits physicians from making this inquiry - and therefore eliminating any possibility of adverse inference for risk purposes - if it is unrelated to the purposes of necessary or requested treatment. Not only are physicians prohibited from asking in these limited instances, but furthermore, that prohibition applies only if the inquiry is for the purpose of gathering statistics or to justify patient counseling - i.e. to risk-rate the patient or to collect data making the case that gun ownership is generally dangerous.
2.28.2006 5:32pm
te (mail):
TDP


Yes really. A locked gun is seconds--too many seconds--away when you need it,

I understand the argument that seconds count when you need to access a firearm. (I disagree with that argument since I use these and can open min in less than a second. Anyway, I think anyone who has children in their house and loaded, unlocked guns laying around should be tied to a post and whipped - that that is another topic.)

What I was really looking for was some of the "substantial evidence" that suggest that locking ones firearms "significantly harms public safety and promotes violent crime.

Personally, I doubt that even if ever evil-doer in a 500 mile radius was informed of my address and the fact that my guns are locked (as opposed to unlocked) that my chances of being involved in violent crime would go up (except to the extent that people would know that I have valuable (guns) in my house that may not have known that before.

But I would be happy to be educated about this evidence.
2.28.2006 5:35pm
Steve:
I can't wait to see the first medical malpractice action brought by someone who claims that they became a crime victim because their doctor wrongfully persuaded them to lock up their guns. Good thing that scenario is far-fetched, as it would undoubtedly cause some heads to explode among the set that loves guns but hates malpractice lawsuits.

I think this regrettably opens the door to all sorts of special-interest lobbies trying to legislate what doctors may and may not say. Many of the arguments in favor of this bill seem virtually indistinguishable from the "strawman" that speech is being banned because it is offensive.

The patient's decision to answer is voluntary and the decision to keep/discard/lock up one's guns is similarly voluntary. This presents a very unsympathetic case for restricting speech.
2.28.2006 5:52pm
Mikeyes (mail):
Under HIPPA you have the right to amend your medical records, you have the right to restrict certain uses and disclosures, and you have the right to inspect and copy your record. You also have a right to receive an accounting of the disclosures of your medical record. On top of that you have a right to complain to the owners of the record, and the federal Department of Health and Human Services (Civil Rights Division).

It's all in the pamphlet that the clerk gave you on your first visit to the doctor (also mandated by the law.)

The information in your record can be disclosed without your permission for a variety of reasons including "as required by law" (as under the Virginia statute that is supposedly protecting you), to avoid serious threat to health and safety both yours and the publics, for activities related to death (meaning to the coroner),for organ dontion, for research provided the names are expunged, for worker's compensation, and to those involved our care (basically other healthcare professionals and those involved in paying for your care.

Since this is a federal law, it supersedes any of the state laws and allows you to have some protection against any non-professional use of any information. In a practical sense, I would not like to have a suit brought against me because one of my patients was offended by my asking about guns when it had nothing to do with patient care. Even if I win, I am marked as having a suit brought against me (the results of the trial, if there is one is moot, all various entities want to know is if you have been sued.) If you lose or settle, that is another black mark against you and it is reflected in many ways including not being on insurance panels and not being on hospital staffs which is an economic penalty.

I think there are plenty of remedies for anyone offended by their doctor's political language already without another draconian (to me as the physician) remedy added on for the sake of a political point of view. (Which I happen to agree with - doctors have no business telling patients to get rid of guns unless there is an acute danger to the patient due to their presence.)

While I agree there are points on both sides, I question whether the issue reaches a threshold that defines danger to public health or criminality.
2.28.2006 5:55pm
Kovarsky (mail):
People,

Again, this isn't about the communication of ideas between doctor and patient. This is about restricting the sort of adverse impacts that admitting to gun ownership or refusing to answer a question about it can have on risk pooling.

I think about it a little like Batson challenges in capital sentencing - sure, race does correlate with attitudes towards imposing the death penalty in some cases, but it's just not a variable that we are willing to sanction for the purposes of making peremptory challenges.
2.28.2006 5:58pm
Dilan Esper (mail) (www):
Well, I can think of at least two lines of cases involving the speech of professionals that did not involve advertising where a First Amendment right was found: (1) the line of cases involving "unauthorized practice of law" by writing self-help books or providing legal document assistance services or otherwise talking to paying customers about the law without a law degree, and (2) Keller v. State Bar of California, regarding the right of lawyers not to pay bar dues that fund political and ideological activities of the bar that they do not agree with.

I understand that both these situations are distinguishable, but at the same time, they, along with the lawyer advertising cases that David Kopel does mention, seem to militate in favor of strong First Amendment protection.

I've said my piece in the previous comment thread on the merits of this law-- I think that the idea that DOCTORS asking INDIVIDUAL patients about gun ownership has ANY POSSIBILITY WHATSOEVER of leading to mass gun confiscation is ridiculous, and I think Second Amendment advocates lose credibility when they argue otherwise. I am not against all slippery slope reasoning, but I think this particular form of it is pure paranoia.

But I want to respond to one other thing that Kopel argues. He seems to think that the Legislature has the right to make judgments about whether gun safety information that doctors might impart to patients is correct or not, based on the data. In general, Legislatures do have fact-finding powers, but in the area of free speech, courts have rightly constrained such powers and for good reason-- as Gertz v. Robert Welch noted, as far as the First Amendment is concerned, there's no such thing as a false idea.

Now, where the government is funding medical services, e.g., Rust v. Sullivan, there may be an exception for this. But one can see the mischief of a legal rule that would allow the Legislature to police the opinions that doctors express to their patients. What if an anti-abortion, anti-birth control legislature wanted to prohibit doctors from telling their patients that abortions were less dangerous than births and birth control works most of the time? What about an anti-evolution legislature prohibiting doctors from telling their patients to get vaccinated for the latest strain of the flu, because mutation (a form of evolution) is an unproven theory?

In other words, Kopel's theory for this law's constitutionality runs up against one of the strongest and most important First Amendment policies-- that when it comes to the expression of ideas (as opposed to statements of fact, e.g., defamation laws), the Legislature cannot declare what's true and what's false and then tell people that they cannot express the "false" ideas.
2.28.2006 6:04pm
Dilan Esper (mail) (www):
One other point. Let's assume arguendo that a doctor expressing anti-gun views to a patient is a "boundary violation". Even if that is so, I fail to see how that categorization is consistent with Kopel's statement that the law is not regulating speech because it offends people.

The principle against boundary violation, IS, after all, aimed at not offending patients. That's the whole point-- a good doctor should be sensitive to the patient's boundaries and not offend the patient by crossing them.

But when the Legislature steps in and threatens to pull doctors' licenses for a certain type of boundary violation, it really is just regulating offense. Indeed, this looks just like the kinds of overbroad hate speech regulations and sexual harassment policies that are regularly condemned around here. Some patients are offended that their doctors might ask them about their guns; some gun groups don't like the politics of doctors who are asking about patients' guns, so, they devise a content-based regulation to prevent them from doing it.

If the justification for this law is "boundary violation", it is about offense, whether Kopel says so or not.
2.28.2006 6:55pm
Kovarsky (mail):
Dilan,

I have stated extensively above why this is not "hate speech" regulation. Doctors can comment about gun use all they want, they just can't inquire about it - as to a particular person - because doing so exposes the object of that inquiry (the patient) to significant penalties in the form of increased insurance premiums. That isn't some fancy-pants creative interpretin', it's on the face of the statute.
2.28.2006 6:59pm
Steve:
If the goal is to eliminate consideration of gun ownership by insurance companies, then pass a law saying insurance companies can't consider gun ownership. That would do a better job of correcting the purported harm without raising any free speech issues.
2.28.2006 7:05pm
Kovarsky (mail):
Steve,

That sounds perfectly reasonable to me. I'm not saying it's good or bad, I'm just saying that the statute here isn't regulating the "message," it's regulating the inquiry. They may well have other ways of regulating the inquiry, and those other ways may be more desirable, but the existence of those other mechanisms does not somehow imply that this rule is NOT a regulation of the inquiry.

Lee
2.28.2006 7:19pm
Kovarsky (mail):
Steve,

And forgetting that the point you're making doesn't diminish mine - I'd be curious to see how a government could regulate private businesses by telling them that they could or could not consider certain pieces of data in their pricing models.
2.28.2006 7:22pm
Juan Notwithstanding the Volokh:
Given Virginia's ridiculously liberal gun ownership and concealed carry laws, doctors may just want to know whether they should counsel the patient not to bring ammunition in to the examination room.
2.28.2006 7:26pm
Steve:
And forgetting that the point you're making doesn't diminish mine - I'd be curious to see how a government could regulate private businesses by telling them that they could or could not consider certain pieces of data in their pricing models.

I know! It sounds awfully communist, doesn't it? But I'd be shocked if every single state didn't do exactly that.

For example, about 5 minutes with the Virginia Insurance Code produced this section, which provides, inter alia, that (a) only factors based on "sound actuarial principles" may be considered (the state, obviously, being the arbiter of what is a sound actuarial principle"; (b) fire insurance rates must be calculated on at least a five-year loss history; (c) worker's compensation rates for volunteer firefighters must be based on the same factors as are used in computing rates for paid firefighters; (d) no motor vehicle accident or conviction may be considered in the computation of rates beyond a 3-year period, and so on and so forth.

Suffice it to say insurance is a highly regulated industry, and risk factors are a highly regulated subtopic. Other common topics of regulation concern the extent to which insurers may charge different rates to smokers and nonsmokers, the extent to which rates may be based on race, sex, and similar classifications, and other matters which quite clearly have a correlation to risk level from a purely mathematical standpoint. In other words, telling insurance companies "if you want to write insurance in our state, you may not consider X as a risk factor" is an utterly ordinary sort of law.

My ultimate point, and this is where I think we do disagree, is that because it is normal and customary for the state to dictate what risk factors may and may not be considered, I don't think the primary justification for this law can be said to be the regulation of insurance company practices. If that were the legislature's goal, it would be a non sequitur to pursue it by limiting doctor speech, while leaving the door open for insurance companies to consider the information if they can learn it through other means. (The simplest means would be a line on the insurance application: "Do you own a gun? [yes/no]")

So it seems pretty clear to me that it's the doctor speech itself that prompted this bill, rather than the possibility that the information might be used for insurance purposes.
2.28.2006 7:53pm
therut:
Where are all these insurance companies that are asking about gun ownership? Are they only in liberal states. I have all kinds of insurance and have never been asked that question.
2.28.2006 8:46pm
therut:
Juan------I could care less if my patients bring their gun loaded into the exam room. If someone is going to bring one in to do harm a little sign saying no guns will make absolutely no difference. NONE. I find it funny when some of my patients find out I am going to get a chest x-ray and they whisper and say --Doc I am carrying concealed. I laugh and say just tell the x-ray guy that and there is no problem. I hope if someone ever does try to do someone harm anywhere I am espically my clinic I hope I am not the only one armed. Hint-I'm not.
2.28.2006 10:39pm
Mikeyes (mail):
Let's do a little calculating. According to my quick google search, there are 240 general hospitals in Virginia and 33,0000 physicians and osteopaths regulated by the medical board. Assuming that each hospital has about 6,000 records and each physician has about 200 records, that's about 8 million records (and this is probably a conservative estimate) not to mention dentist records, records in free standing surgical units and psychiatric hospitals. (The population of Virginia is about 7.5 million and most people have one or more medical records of some sort.)

My question is how are these records going to be monitored, and will the legislature alot the money to the medical board for a comprehensive review? For those of you with the knowledge, you can estimate the cost, time and bodies needed. I bet it is daunting.

Another aspect to this law is how will other states deal with a physician who violates this part of the regulations? If you are sanctioned by a medical board in any way (including reprimand) your name goes in a national data base as having a sanction. Most states have sanctions for the reasons noted in the present Virginia law, but I doubt any one of them have laws regarding speech. Will the other states recognize this sanction the same way they do raping a patient? It seems like this provision is qualitatively different than all of the others. This kind of regulation would reset the level of sensitivity for what was in the past egregious ethical violations to something less obvious.

I am sure that the legislature has the right to do this but is it in the best interest of the state to do so if you consider the cost/benefit ratio and the damage to individual rights? And who will pay for it? Traditionally it is the physicians who pay for the medical board through special fees and taxes on their practices. This will translate into higher fees (unlikely due to control of payments by insurance companies and the state) or an exodus from the state due to such high costs and an increase in malpractice suits. Who benefits then?
2.28.2006 11:01pm
Andy Freeman (mail):
> doctors may just want to know whether they should counsel the patient not to bring ammunition in to the examination room.

Huh? Why would ammunition be a problem in the exam room?

Where would you have the patient leave it?
2.28.2006 11:52pm
Ross Levatter (mail):
Andy Freeman asks:

"Huh? Why would ammunition be a problem in the exam room?"

This depends entirely on how patients interpret "concealed carry"...
3.1.2006 2:42am
Richard Bellamy (mail):
Kopel's argument seems to boil down to the fact that the law is probably constitutional. In law school, we learn that saying that a law is constitutional is "the least good thing" you can say about it.
3.1.2006 10:03am
Houston Lawyer:
I'm far more concerned about the effects of the Doctor who was brought up on disciplinary charges for counseling his patient to lose weight. As a strong right to carry proponent, I really don't see the need for this legislation. I believe you should pick your fights carefully, and I can't believe that people will give up their guns after a safety lecture from a doctor.

My grandfather used to get great pleasure noting that old so-and-so finally died after 84 years of eating bacon every day and smoking. Particularly if old so-and-so outlived his doctor. Proper medical advice from physicians often falls on deaf ears, why should gratuitous advice be any different.
3.1.2006 10:05am
Freder Frederson (mail):
There is absolutely zero empirical evidence--zip, nada, none--that owning a gun, loaded or unloaded, in your home or carrying it on your person, makes you less likely to be the victim of a crime. Dramatic "Armed Citizen" stories in NRA publications notwithstanding. Owning a gun, does however, carry certain undeniable risks as it is a potentially deadly weapon. There is no justifiable reason for the legislature to impose on the doctor patient relationship.
3.1.2006 11:17am
Kevin P. (mail):
Freder Frederson:

There is absolutely zero empirical evidence--zip, nada, none--that owning a gun, loaded or unloaded, in your home or carrying it on your person, makes you less likely to be the victim of a crime.

Since you say so, we will accept this with question.
3.1.2006 11:39am
Dilan Esper (mail) (www):
Kovarsky:

The inquiry / comment issue is both a distinction without a difference, and doesn't get at the way this statute DOES seek to regulate speech based on its potential to offend.

It is a distinction without a difference because asking (with the patient under no obligation to reveal) whether the patient has a gun is a natural part of a discussion about gun safety. Indeed, the ENTIRE PURPOSE OF THIS IS TO PREVENT DOCTORS FROM HARASSING PATIENTS ABOUT THEIR GUNS. It's like passing a law that says that people can discuss the issue of abortion, but nobody can ask the other person in that discussion whether she has had one. Or that people can discuss the Republican Party, but nobody can ask anyone else if he or she is a member of it. The purpose of the law is to prevent the conversation and chill speech by rendering a question that may naturally come up in such a conversation sanctionable. Indeed, many doctors will just avoid the topic of guns entirely to ensure that they won't run afoul of the rule-- the classic "chill" problem that First Amendment doctrine seeks to prevent.

Second, even assuming there is a viable distinction between inquiry and comment, that doesn't at all prove that the statute isn't designed to regulate speech based on offense. One obvious motivating factor behind the statute, as Kopel states, is that asking this question is a "boundary violation", which is another way of saying that some patients will be OFFENDED that they are asked about their guns. You therefore can't establish that this law is not about regulating offense simply by making a distinction between inquiry and comment-- some gun owners find the INQUIRIES offensive.
3.1.2006 2:13pm
Kovarsky (mail):
Dilan,

This conversation is getting silly. Just because you scream something doesn't make it true. You write/scream:

Indeed, the ENTIRE PURPOSE OF THIS IS TO PREVENT DOCTORS FROM HARASSING PATIENTS ABOUT THEIR GUNS.

You then proceed to argue from that premise that the inquiry/comment distinction is one without a difference. I've explained in great detail why that premise is not true, why the plain text of the statute conforms to that interpretation, and why the distinctions in the statute appear to support that motive. You just sort of scream that the point of the statute is to prevent doctors from harassing patients about guns. I'd agree that the inquiry/comment distinction would make no difference if the point was to shield patients from offensive speech, but as I think I've made abundantly clear, it is your assumption - not your inference - that I take issue with.
3.1.2006 4:11pm
Dilan Esper (mail) (www):
Kovarsky:

Just what do you suppose "boundary violation" means?
3.2.2006 2:47pm
Deoxy (mail):
"boundary violation" - tanking a tank off post and onto the highway.

Is it POSSIBLE to drive a tank safely on the road without hurting anyone? I'd like to think so. But I still don't want any tanks on the highway (save in actual war, of course).

The idea here is that a physician is given special dispensation - they have a limited area (medicine) where they have legal super powers. They can prescribe drugs taht are otherwise illegal. They can slice people open, even sometimes resulting in that person's DEATH, without legal consequence (within certain rules, of course).

A "boundary violation" would be a case of a doctor applying that special dispensation to something OTHER than medicine, or acting in a such a way that the patient reasonably THINKS the doctor's non-medical advice falls under their special authority.

That is, doctors are most certainly free to have any opinion of guns that they want; they are also free to press that opinion in any way that any other private citizen can. That's the rub. They may not use their state-sanctioned powers (and, being licensed medical professionals, there is some level of state sanction involved) to press their opinion.

Moving on:

There is absolutely zero empirical evidence--zip, nada, none--that owning a gun, loaded or unloaded, in your home or carrying it on your person, makes you less likely to be the victim of a crime.


Yes, there is.

Actually, just for the fun of it, I will even supply you with EVIDENCE of my position (odd, I know).

The smallest number of defensiv gun uses estimated by any actual statistician who performs a study is over 1 million per year.

That is, even assuming a mere 10% success rate (the real rate is over 90%), there are 100,000 attempted crimes that are foiled by gun usage each year in this country.

There you go, "empirical evidence...that owning a gun, loaded or unloaded, in your home or carrying it on your person, makes you less likely to be the victim of a crime."

The only counter to this stupendously obvious data would be if you could somehow show that carrying a gun caused an additional 100,000 (actually, MUCH more) crimes per year against those who carry. Good luck with THAT...

(Actually, as far as empirical evidence goes, 1 single instance of a successful defense against a crime would be sufficient, unless you could show at least 1 crime caused by carrying a gun. Having millions is just a bonus.)

On the lighter side:

"Perhaps the Virginia medical ethics bill is an occassion where both sides should agree that there were reasonable arguments for both positions."

Isn't that sort of agreement Constitutionally prohibited?!? :-)
3.3.2006 2:41pm