PHYSICIANS AND FIREARMS:
FINDING A DUTY TO WARN
ELISABETH J. RYAN, JD, MPH
April 12, 2018
GUN VIOLENCE IS A
PUBLIC HEALTH
ISSUE
Firearms violence killed more
than 36,000 people in 2015.
That’s twice the number of
people who died from brain
cancer and slightly more than
people who died in motor
vehicle incidents.
A full 61% of those gun deaths
were suicides.
About 36% were homicides
and 3% were unintentional
shootings.
Firearms also accounted for
an additional 85,000 non-fatal
injuries.
FIREARMS AND SUICIDE
One of single most significant risk factors for suicide is the
presence of a gun in the home.
Almost twice as many individuals completed suicide in
the 15 states with the highest levels of household firearm
ownership compared with the 6 states with the lowest
levels of firearm ownership.
Attempted suicides using a firearm are more than 90%
fatal, compared to 35% fatal from jumping and 2% fatal
from poisoning.
DUTIES OF PHYSICIANS IN GENERAL
Physicians must provide a patient with treatment using the degree
of skill, care, and diligence of a reasonably competent physician
under the same or similar circumstances.
Physicians cannot be held liable for “honest errors in professional
judgment,” but “the line between medical judgment and deviation
from good medical practice is not easy to draw, especially in cases
involving psychiatric treatment.
Physicians must also, with some exceptions, preserve patient
confidentiality.
PHYSICAN DUTIES TO THIRD PARTIES
In general, there is no affirmative duty for anyone to control the conduct of a third party so as to prevent the third party from causing harm to another. However, when a “special relationship” exists between the actor and the third party, such a duty may also exist.
Physicians have been found liable for harm to third parties when, for example, a doctor did not inform a patient that he should not drive while taking certain medications. When that patient passed out while driving and killed a pedestrian, the court held the doctor owed a duty of care to anyone foreseeably put at risk by such a failure to warn.
In the context of warning a patient’s family members about genetic disease, case law before HIPAA was divided as to whether a physician only had to inform the patient that family members may be at risk or whether a physician had to take more affirmative steps to engage the family members. Post-HIPAA, warning third parties is likely not permitted.
Physicians do have some statutory reporting duties regarding infectious diseases and other public health risks.
PHYSICIAN DUTIES TO THIRD PARTIES
The Tarasoff standard When a provider determines that a
patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care protect the intended victim against such danger.
A majority of states now have some form of this principle in statute.
Generally, the duty applies when (1) the provider has a special relationship with the person who may cause harm OR with the potential victim, (2) the potential victim is identifiable, and (3) the harm is foreseeable and serious.
Tatiana Tarasoff and her killer, Prosenjit
Poddar
PHYSICIANS AND THE RIGHT TO DISCUSS
FIREARMS: THE “DOCS V. GLOCKS” CASE
In 2011, Florida passed the “Firearm Owners’ Privacy Act,” which
stated (among other things) that a medical professional “should
refrain from…asking questions concerning the ownership of a
firearm or ammunition by the patient or by a family member of the
patient, or the presence of a firearm in a private home.”
After a complicated procedural history, the en banc 11th Circuit
finally ruled in 2017 that such a provision violated the First
Amendment free speech clause.
PHYSICIANS AND SUICIDE
Some states have found specifically that a physician’s regular duty of care to a patient could be breached if that patient dies by suicide. The determination generally hinges on foreseeability.
Unlike duties owed to potential victims of a patient’s violence, however, no statutes exist defining this responsibility.
As we know, the presence of a firearm in a home is one of the most significant risk factors for suicide. This duty of care towards a suicidal patient may also include a duty, at least, to inquire about firearms accessible to the patient.
This has never been articulated, however, in any statute or in case law.
PHYSICIANS HAVE A PROFESSIONAL DUTY
TO DISCUSS FIREARMS WITH PATIENTS
American Medical Association: Educate
yourself about gun safety. Ask your
patients if there are guns at home. How
are they stored? Are there children or
others at risk for harming themselves or
others? Direct them to resources to
decrease the risk for firearm injury, just as
you already do for other health risks. Ask if
your patients believe having guns at
home makes them safer, despite
evidence that they increase the risk for
homicide, suicide, and accidents.
American Academy of Pediatrics: Address
firearms safety as part of your routine
anticipatory guidance with children of all
ages. Ask about the presence of firearms
in the home, and counsel parents who do
keep guns to store them unloaded in a
locked case, with the ammunition locked
separately. While the safest home for
children is one without a gun, safe
storage practices can significantly
reduce the risk of gun injury or
death…Instruct parents to ask if there is
gun in the house before sending their
children to play at a friends’ home.
“Some moral
obligations do not
translate easily into
legal obligations.”
Logarta v. Gustafson, 998 F.Supp 998 (E.D. Wisc.
1998)
DOCTORS CAT AND PUG ASK THEIR
PATIENTS ABOUT FIREARMS