Hi, I’m Attorney Ben Schwartz,
Today we are going to take up a topic from Roger in Dover, Delaware. Roger wrote in and essentially he said that he took his kids to the pediatrician and the pediatrician was asking about whether there’s any guns in the house. He felt like this was violating his right of privacy and wants to take some action against the doctor. So today we’re going to talk about, can doctors ask you if you have guns in the household and why are they asking this question? What can be done about it?
First-off, you know, this is in Delaware where this happened and in Delaware there is no state law that says that a doctor can’t ask you about whether you have guns in the home. There are places like Florida. I’m not aware of any other states besides Florida, but I do know that the State of Florida passed a law several years ago that prohibits Physicians from asking generally as a matter of practice, asking people if they have firearms in their household. But that’s Florida and I don’t know of any other states that prohibit it and certainly federal law does not prohibit it.
Should Doctors Ask If You Have Guns In The House?
So the question is, why are doctors doing this? It is not all doctors, but some Physicians feel like it is their privilege or obligation to ask about this. I’m an Attorney, in my legal practice I do a lot of Personal Injury and wrongful death cases, very few involve firearms. Another thing I do is I represent Physicians, Surgeons, Medical Practices and Ancillary Medical Practices on topics of general law as it relates to these types of medical practices. What I can tell you is that medical societies are interested in sort of pushing this agenda to ask patients about whether there’s guns in the home. I think their intent may be that they want to find out if there’s guns in the home so that they can counsel the patient’s on either getting the guns out of the home or taking measures to make sure that the guns are safely secured in the home. I think that while that may be a good intent, it does have a certain element of violating people’s right of privacy; right to be secure in their homes and their possessions.
Just to give you an example of one of the things that I pulled down off the internet is an article from the Annals of Internal Medicine. This is titled, Yes, You Can: Physicians, Patients, and Firearms. Essentially this is an article that is advising Physicians that you can ask your patients about whether they have firearms in the home. It’s an article advocating for doing so for public health reasons. It’s an article that also tells physicians you can disclose, in other words, you can report things to the government to let the government know that people have guns in the home. There is a threat of danger posed as a result of people in possession of firearms being mentally unstable.
I don’t want to read a lot of the article, the article is pretty long, but it says the Obama Administration has emphasized that disclosure is permissible, “no federal law prevents Healthcare Providers from warning law enforcement authorities about threats of violence.” A letter from the US Department of Health and Human Services added that, “a healthcare provider may disclose patient information, including information from mental health records, if necessary, to law enforcement, family members of the patient, or any other persons who may reasonably be able to prevent or lessen the risk of harm.”
Then it talks about different situations where Medical Provider or Doctors have an obligation, or right, to report to Governmental Authorities. This creates a situation where if you are a firearms owner, if you’re a gun owner, if you’re a hunter, if you’re someone who enjoys to target practice, if this is how you were raised, if you believe in the right to own and possess firearms, if you believe in your rights under the Second Amendment, this creates the situation as to what you’re going to do. If you take your kids to the pediatrician and the pediatrician starts asking questions about do you have firearms in the home, are you going to tell your kids before you go into that doctor’s visit? Are you going to tell him, look kids, I taught you to tell the truth and I taught you to be honest, but in this particular situation I need you to lie? How are you going to deal with this situation?
Your question is a good question. On the internet, while I was sniffing around looking for information on this topic, I came across a website called preparedgunowners.com. There’s an article titled, What To Do When Your Doctor Asks If You Own A Gun. It quotes someone named Jazz Shaw, saying there was a time when I’d have suggested that such a conversation was harmless, no matter how you decided to answer. Sadly, I live in New York and any gun owner here can tell you that you no longer have that luxury or reason for any confidence in the privacy of the doctor-patient relationship. Since the passage of the New York Safe Act, there have been tens of thousands of residence stripped of their Second Amendment rights. Many of whom were placed on the government’s no Second Amendment rights list as a result of an anonymous call from a medical professional with “concerns”. There is no need for court adjudication to prove someone is dangerously unbalanced or insane, just a call saying you seem depressed will be enough. It is up to you to spend the time and vast amount of attorney’s fees required to go to court and prove that you are not crazy.
What do you do? I normally would advise against this under other conditions, but as I tell the doctor is necessarily going to be always accurately recorded and that that record isn’t going into some bureaucrats hands, some government entities hands. I don’t have a lot of confidence that record is only going to be seen by my doctor. I’ve seen plenty of cases where medical records get out and are used against patients in all different types of situations. I’ve had personal injury cases where my clients’ medical records are not maintained in a confidential manner. So, I’m really struggling with what I would do under the situation.
One of the suggestions that was brought to my attention in discussing this with the other attorneys in my Law Firm, is that we are in Delaware and Delaware has the Medical Practice Act. Under Title 24 Delaware code section 1731, under subsection A, it says a person to whom a certificate to practice medicine in this state has been issued may be disciplined by the board for unprofessional conduct as defined in subsection B. Then in subsection B, unprofessional conduct is defined and there’s a long laundry list of things that are unprofessional conduct for doctors. Subsection B-12 is a willful violation of the confidential relationship with, or confidential communications of a patient.
One of the things that I think you could do if you are in Delaware, or if you are in a state with a similar law, is if you’ve got a physician who asks you about guns in the home and then discloses that information to some third-party that you have not authorized to receive that information, that might be unethical conduct on the part of the doctor. That might be something that you need to file a complaint with your State Medical Board. In Delaware it’s called the Delaware Board of Medical Licensure and Discipline. It might be unethical conduct that you need to stop if you’re a patient. You want to stop that for other patients from having to go through the same thing.
This is a thorny topic. It’s something I’ve been struggling with and in this video I am not so much answering the question as I am raising questions. I would be interested to know from your standpoint, what do you think about this topic? What would you do if you went to the doctor, or you took your kids to the pediatrician, and the doctor started peppering you with questions about gun ownership? Would you answer those questions directly yes or no? Would you lie? Would you tell your kids to lie to the doctor? Would you tell the doctor you prefer not to answer? I mean, how do you deal with this as a gun owner? How do you deal with this as a non gun owner?
I think it’s a question that really, maybe, is a question with no right answer. Maybe it’s a question that I think it’s worth thinking about and mulling over and having the discussion in this format. You can leave us a comment or maybe this is a topic to have a discussion about around the family dinner table. Leave us a comment, let us know what you think, or send me an email. This has been another episode of Ten with Ben. Thank you very much for watching.