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