Published online November 1, 2006
PEDIATRICS Vol. 118 No. 5 November 2006, pp. 2168-2172 (doi:10.1542/peds.2006-1120)

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SPECIAL ARTICLE

Counseling About Firearms: Proposed Legislation Is a Threat to Physicians and Their Patients

Jon S. Vernick, JD, MPH^a, Stephen P. Teret, JD, MPH^a, Gary A. Smith, MD, DrPH^b and Daniel W. Webster, ScD, MPH^a

^a Johns Hopkins Center for Gun Policy and Research, Johns Hopkins Bloomberg School of Public Health, Baltimore, Maryland
^b Ohio State University College of Medicine and Public Health, Center for Injury Research and Policy, Columbus Children's Research Institute, Children's Hospital, Columbus, Ohio

	ABSTRACT

TOP ABSTRACT THE VIRGINIA AND WEST... ANTICIPATORY GUIDANCE AND... MALPRACTICE IMPLICATIONS FREEDOM OF SPEECH CONCLUSIONS REFERENCES

 
In early 2006, 2 separate but virtually identical bills were introduced in the Virginia and West Virginia legislatures that would have profoundly affected the relationship between a physician and his or her patients. Each bill would have prohibited a physician from asking a patient if he or she owned firearms for the purpose of counseling that patient about ways to reduce risks associated with firearms. Penalties for violation of the bills included revocation of a physician's license to practice. The Virginia bill was initially approved by its state House of Delegates by a vote of 88 to 11. It was ultimately defeated in a Virginia Senate committee. The West Virginia bill did not receive a vote during the 2006 legislative session. Although neither bill became law this year, this type of bill is likely to reappear in future legislative sessions.

The Virginia and West Virginia bills were contrary to the best-practices recommendations of medical societies, including the American Academy of Pediatrics. Anticipatory guidance regarding firearms can indeed reduce risks to patients. Yet, the bills would have preferred the judgment of legislators over physicians regarding this aspect of the practice of medicine. In addition, the 2 bills raise legal issues regarding both medical malpractice and the First Amendment protection of the freedom of speech.

The Virginia and West Virginia bills would have treated risks associated with firearms differently from other hazards and interfered with a physician's ability to protect his or her patients. The Virginia bill was defeated, in part, through the efforts of physicians to educate legislators. However, physicians must remain prepared to respond to similar state legislative initiatives in the future.

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Key Words: anticipatory guidance • firearms • injury control • policy

Abbreviations: HB—House Bill • NRA—National Rifle Association • AAP—American Academy of Pediatrics

On January 20, 2006, a remarkable bill was introduced in the Virginia State legislature. Approximately 1 month later, on February 24th, a nearly identical bill was introduced in West Virginia as well. Each bill would have profoundly affected the relationship between a physician and his or her patients.

Pediatricians and other primary care doctors routinely counsel their patients about the risks associated with certain behaviors, environments, or products. In the area of childhood injury prevention, such anticipatory guidance often includes providing parents with information about the importance of such things as using child car seats, installing smoke alarms, and storing household poisons safely.¹ Virginia House Bill (HB) 1531² and West Virginia HB 4845³ would have prohibited a physician from asking a patient if he or she owned a firearm for the purpose of counseling that patient about ways to reduce the risks associated with firearms. The possible penalties included revocation of a physician's license to practice within the state. The Virginia bill garnered substantial support, but neither bill was ultimately enacted. Practitioners have probably not heard the last of this type of bill in these and other states in the future.

In this article we examine (1) the 2 bills and their legislative fates, (2) the effects the bills could have had on physician counseling of patients about firearms, (3) the potential medical-malpractice implications of the bills, (4) freedom-of-speech issues raised by the bills, and (5) reasons to believe that similar legislation is likely to be introduced in the future.

	THE VIRGINIA AND WEST VIRGINIA BILLS

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Virginia HB 1531, if enacted, would have forbidden "[o]ral 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."²

This language is added to a list of other "unprofessional conduct" that can be "grounds for...disciplinary action."^{2, 4} Other such conduct, already part of Virginia law, includes fraud or deceit, substance abuse that renders a practitioner unfit, and conducting one's practice in a manner that places patients in danger. Penalties include the state's ability to "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... ."⁴

On its face, the Virginia bill forbids a physician to ask a patient about ownership, possession, or storage of firearms if the physician intends to use that information to either (1) gather data about firearms or (2) engage in patient counseling, often referred to as anticipatory guidance. An exception is made if it is the patient who raises the issue of firearms or if the "medical complaint" is related in some way to guns. Technically, therefore, under the bill a physician could provide counseling about firearms to all patients as long as patients were never asked about gun ownership. In practice, of course, it would be awkward and inefficient, at best, for a physician to advise a patient about gun safety without first inquiring whether that patient has a gun. For example, one does not usually advise those who do not own a motorcycle about the health benefits of wearing a motorcycle helmet. Alternatively, the physician could choose to provide counseling only to those patients who specifically raise the issue themselves. This would exclude, of course, the vast majority of patients, many of whom might benefit from counseling.

On February 13, 2006, HB 1531 was brought up for a vote in the Virginia House of Delegates. It passed with 88 legislators in favor and only 11 opposed. Next, the bill was forwarded to the Virginia State Senate Committee on Education and Health for consideration. The National Rifle Association (NRA) Institute for Legislative Action quickly weighed in on the matter. It urged Virginia NRA members to contact the committee and express their support. The NRA described the bill as designed to "protect you from intrusive, unnecessary questions from medical professionals."⁵ The Virginia chapter of the American Academy of Pediatrics (AAP) also responded. In its words, it worked to "educate lawmakers that the legislation was an inappropriate advancement of the government into the clinical practice of medicine" (AAP state government affairs e-mail update, March 21, 2006). On February 23, 2006, the bill was defeated in the Virginia Senate Committee by a 9 to 6 vote, ensuring that it would not be enacted into law this year in Virginia.

The next day, a bill with virtually identical language was introduced in the West Virginia legislature as HB 4845.³ No hearings have been held, and the West Virginia legislature has since adjourned its regular session. As a result, any additional action this year is unlikely.

	ANTICIPATORY GUIDANCE AND FIREARMS

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A substantial body of research has demonstrated that, on balance, firearms in the home pose significant risks. Guns in the home are associated with an increased risk of suicide,^6–8 homicide,^9–11 and firearm-related unintentional injuries.^{12, 13} The increased risk of suicide is particularly striking for younger persons and in homes where guns are stored loaded and/or unlocked.¹⁴ Survey research indicates that in >10% of gun-owning households with children, at least 1 firearm is stored both loaded and unlocked.¹⁵ In addition, parents are often unaware that their children know where guns are stored in the home or that the children have handled those guns without supervision.¹⁶

Recognizing these risks, some medical societies recommend that their members counsel patients about risks associated with firearms in the home and the value of safe storage practices. For example, the AAP has a policy statement concluding that "loaded firearms and unlocked firearms and ammunition represent a serious danger to children and adolescents."¹⁷ The AAP, therefore, urges pediatricians and other child health professionals to "incorporate questions about guns into their patient history taking."¹⁷ The American College of Physicians makes similar recommendations to its members.¹⁸ Thus, the Virginia and West Virginia bills are directly at odds with the best-practices recommendations of these medical societies.¹⁹

The bills would essentially codify the judgment of legislators, rather than physicians, about what is best for patients. Also, there is indeed evidence that anticipatory guidance regarding firearms can reduce risks for patients. In controlled trials, individuals who received physician counseling were more likely to report the adoption of 1 or more safe gun-storage practices²⁰ or the purchase of trigger-locking devices²¹ than those who did not receive counseling.

Furthermore, the bills would treat anticipatory guidance for firearms differently than counseling for all other products or injury risks such as wearing seat belts or reducing cigarette smoking. There is no scientific basis for this distinction. Restricting a physician's ability to prevent injury or death from just one cause, among many other possible causes, is arbitrary and illogical.

	MALPRACTICE IMPLICATIONS

TOP ABSTRACT THE VIRGINIA AND WEST... ANTICIPATORY GUIDANCE AND... MALPRACTICE IMPLICATIONS FREEDOM OF SPEECH CONCLUSIONS REFERENCES

 
In addition to interfering with a health care provider's relationship with his or her patients, had either of the 2 bills become law they could have actually created a potential malpractice trap for providers. Health care providers are expected to follow a reasonable standard of care in their interactions with patients. If the failure to follow an appropriate standard of care causes a patient to be harmed, a provider may be liable for damages. In general, the standard of care is that the provider "must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing."²²

Courts and expert witnesses have often used AAP and other practice guidelines as evidence for what a specific standard of care should be.^{23, 24} The AAP firearm guidelines suggest that a reasonably prudent pediatrician should inquire about the presence of guns in the home and counsel patients about the risks of firearms. Although we know of no reported cases that found a pediatrician liable for failure to counsel about firearms, a pediatrician's duty in this regard might be seen as even more compelling if he or she knows, for example, that a depressed teenager lives in the home.

This duty is clearly at odds with the prohibitions in the Virginia and West Virginia bills. Had those bills become law, a pediatrician who asked his or her patients about firearm ownership for the purpose of anticipatory guidance would have placed his license to practice medicine at risk. A pediatrician who failed to inquire about firearms and counsel appropriately might have been subject to a malpractice claim if a child were injured or killed as a result.

The AAP policy statement regarding firearms does include the following footnote, found on all AAP policy statements: "The recommendations in this statement do not indicate an exclusive course of treatment or serve as a standard of medical care. Variations, taking into account individual circumstances, may be appropriate."¹⁷ Whether this statement is adequate to dissuade a court from nevertheless considering the AAP's policy, or similar policy statements, as evidence of a standard of care is uncertain. This is an uncertainty to which practitioners, seeking only to protect their patients, should not be subjected.

Certainly, the absolute risk that a physician would be liable for failure to counsel patients regarding firearms is probably quite low. However, the disjunction between the requirements of the Virginia and West Virginia bills and a physician's obligations to his or her patients under traditional legal principles serves to further illustrate one of the problems associated with the 2 bills.

	FREEDOM OF SPEECH

TOP ABSTRACT THE VIRGINIA AND WEST... ANTICIPATORY GUIDANCE AND... MALPRACTICE IMPLICATIONS FREEDOM OF SPEECH CONCLUSIONS REFERENCES

 
At their core, the Virginia and West Virginia bills forbid physicians to speak certain words to their patients—words used to question patients about their firearm ownership or storage and provide subsequent anticipatory guidance. Any prohibition of speech by the state potentially violates the First Amendment of the US Constitution. The First Amendment states, in part, that "Congress shall make no law...abridging the freedom of speech."²⁵ This prohibition applies to state laws as well. Of course, like all of the rights in the Constitution, the freedom of speech is not absolute. Perhaps the most well-known exception is the acknowledgment that the First Amendment would not protect someone who falsely shouted "Fire!" in a crowded theater.²⁶ In fact, governments have enacted numerous restrictions on speech.

It is unquestioned that states have the authority, consistent with the Constitution, to license the practice of certain professions such as medicine.²⁷ A state's ability to condition receipt or retention of a medical license on the prohibition of certain speech is less clear. The Supreme Court has never directly addressed a speech restriction such as that mandated by the Virginia and West Virginia bills. But, the Court has issued rulings in some related cases that may shed light on whether the speech restrictions in those bills would be permissible.

In Planned Parenthood v Casey, the Supreme Court considered the constitutionality of a Pennsylvania law that, among other provisions, required physicians performing abortions to give certain state-mandated information to patients. The court upheld this required "speech," writing: "To be sure the physician's First Amendment rights not to speak are implicated...but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement that the physician provide information mandated by the State here."²⁸

In Rust v Sullivan, a case also involving abortion, the issue was not state-mandated speech but, instead, a federal law and accompanying regulations that forbid organizations to use certain federal funds to "provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning."²⁹ Several organizations and their staff physicians challenged the law as a violation of the First Amendment. The Supreme Court upheld the law. It concluded that Congress was free to condition the receipt of federal funds on the requirement that those funds be used only in a specific way. The court observed that the organizations were not required to accept the money and that the staff, if they wished, could pursue abortion-related projects on their own time.³⁰ Of course, unlike in Rust, the Virginia and West Virginia bills would apply to all physicians, because one must have a license to practice to speak as a physician at all.

Another series of cases also involves the prohibition of a particular kind of speech by professionals: advertising or soliciting clients. In general, the Supreme Court has frowned on efforts to prohibit advertising by professionals (usually attorneys),³¹ although some prohibitions designed to protect the public from invasive advertising have been upheld.³² By comparison, the court has upheld state laws prohibiting in-person solicitation by private attorneys under circumstances likely to make it difficult for a potential client to make an informed choice.³³

Despite these mixed signals from the Supreme Court, it is important to recognize that any law implicating the First Amendment must still have at least some reasonable basis to be constitutionally sound. This means that laws cannot be arbitrary; there must be some reasonable relationship between the law and a permissible goal of government, such as protecting the health, safety, or welfare of its people. Given the evidence regarding the risks of guns in the home and the potential benefits of anticipatory guidance, however, the Virginia and West Virginia bills may lack even a reasonable basis.

	CONCLUSIONS

TOP ABSTRACT THE VIRGINIA AND WEST... ANTICIPATORY GUIDANCE AND... MALPRACTICE IMPLICATIONS FREEDOM OF SPEECH CONCLUSIONS REFERENCES

 
Although neither the Virginia nor West Virginia bills became law this year, there are reasons to believe that this issue may return in the near future. The strong showing in the Virginia House of Delegates suggests that this type of bill may have surprising support in some states. The quick introduction of a virtually identical bill in West Virginia implies the possibility of a concerted strategy.

In fact, the NRA has a history of very successful multistate legislative strategies. Largely as a result of NRA lobbying efforts, a majority of states now have laws that make it easier for most citizens to obtain a permit to carry concealed weapons³⁴ and forbidding local governments from enacting their own gun laws.³⁵ The Virginia and West Virginia bills could be the NRA's, or some other group's, next focus. As a long-time proponent of these laws, Dr Timothy Wheeler, writes: "this was not a bad showing for a first try at a boundary violation bill"³⁶ (emphasis added).

On the more hopeful side, the story of the Virginia bill also demonstrates the effectiveness of physician organizations in responding to bills such as these. Physicians were able to educate policy-makers about the threat to the doctor-patient relationship posed by the bill and, ultimately, to defeat it. However, health care providers should remain prepared to respond to similar state legislative initiatives in the future.

	FOOTNOTES

 
Accepted Jun 20, 2006.

Address correspondence to Jon S. Vernick, JD, MPH, Johns Hopkins Center for Gun Policy and Research, Johns Hopkins Bloomberg School of Public Health, 624 N Broadway, Baltimore, MD 21205. E-mail: jvernick{at}jhsph.edu

The authors have indicated they have no financial relationships relevant to this article to disclose.

	REFERENCES

TOP ABSTRACT THE VIRGINIA AND WEST... ANTICIPATORY GUIDANCE AND... MALPRACTICE IMPLICATIONS FREEDOM OF SPEECH CONCLUSIONS REFERENCES

 

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PEDIATRICS (ISSN 1098-4275). ©2006 by the American Academy of Pediatrics

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