Our attention has been directed recently to a new form that some patients may be presenting to their physicians, entitled “Firearms Safety Counseling Representation: Physician Qualifications and Liability.” On the back of the form there may be a reprint of an article entitled, “Risk Management Advice to Physicians and Malpractice Insurance Providers: Don’t Borrow Trouble.”

Let me begin by saying there is absolutely no legal requirement that physicians sign these forms. The form itself asks you to state that you are “certified to offer…qualified advice about firearms safety,” to list your courses of study in the subject, and to “represent” that either you have “reviewed applicable scientific literature” on defensive gun use and a myriad of other home safety issues or that you are “knowingly engaging” in such safety counseling “without certification, license or formal training.” It goes on (yes, it’s a very long, fine print form) to have you state that your malpractice carrier either will or will not “cover lawsuits” resulting from your lack of such certification. Finally, it states that you “warrant” that if a patient ends up dying or being injured after following your advice to either remove firearms from the home or use trigger locks, your malpractice carrier or personal assets will cover “all actual and punitive damages.” In short, it contains lots of legal-sounding words probably meant to intimidate physicians into not discussing firearm safety with their patients.

Many firearm proponent websites are now recommending that patients take these forms to their doctors’ appointments and have them signed. These are not hunter websites. Rather, they are self-defense websites and blogs which point out that a firearm is useless for self-defense if it is locked away, has a trigger lock on it, or is unloaded. A few examples:

• ·        “You know it will happen eventually. Somebody will actually heed the “Health Care Professional’s” advise [sic], secure his or her firearms and get killed by those stupid instructions.” http://gunfreezone.net/index.php/tag/firearms-safety-counseling-representation-physician-qualifications-and-liability/
• ·         “A liability form for your nosey doctor. Now this is a good idea take a copy with you next time you visit the doctor just in case you need it. Feel free to pass it on as it was passed on to me.” http://firearms4us.com/Aliabilityformforyournoseydoctor.htm
•        “Dear Doctors – Look, I realize that most of you really do care about the safety and health of your patients. I realize your intentions are, for the most part, honorable. I also realize that some of you consider yourselves experts on nearly everything. So let me tell you something – you aren’t.” https://thelibertyzone.com/2016/04/04/doctors-and-guns/
• ·         “Now no one comes to me asking if that pesky chest pain is heartburn or a heart attack. Who would be stupid enough to ask (or listen) to a doctor about gun safety?” http://www.ncgunblog.com/category/gun-safety/
• ·         " ‘I mean it's common sense. Doctors are not firearm safety experts, they have no business prying into your personal life and asking you about a fundamental constitutional right,’ said NRA spokesperson Catherine Mortensen.” http://fox43.com/2014/11/25/doctors-keep-asking-patients-whether-they-own-a-gun/

So what is a physician’s legal exposure with regard to asking or counseling about firearm safety? First, the Patient Protection and Affordable Care Act neither requires nor prohibits asking questions about the presence of firearms and the ways they are stored. There are no other federal or Maine State laws that address this issue directly. That means any claims must be analyzed in relation to general principles of law.

I used to tell juries, “Anyone can sue anyone for anything. The key is that, to win, one must prove the allegations.” So I can’t tell you no physician will ever be sued for asking about firearms in the home. Or for not asking. Or for suggesting that firearms be locked and securely stored. The key is whether a plaintiff proves that the advice, or the question, is a proximate cause of a legally recognized injury. That is not an easy thing to do.

The real question physicians must ask themselves is, “What is the standard of care?” To answer that question, it’s a good idea to check the literature. An editorial in the journal, American Family Physician” (http://www.aafp.org/afp/2014/1101/p619.pdf ) points out that the answer to the question depends on the risk. “For physicians to effectively and efficiently counsel patients about gun safety, they must be able to identify patients who are at highest risk of gun-related injury.” The American College of Physicians takes the position that physicians should discuss the risks associated with firearms in the home and recommend ways to mitigate such risks. "Physicians can play a critical role in educating the public on the risks of firearm ownership and the need for firearm safety through their encounters with their patients. ACP strongly believes the patient-physician relationship should be protected from laws that prevent physicians from initiating a discussion about guns."  https://www.acponline.org/acp-newsroom/american-college-of-physicians-offers-policy-recommendations-for-reducing-gun-related-injuries-and . The American Association of Pediatrics suggests that child health professionals, including physicians, counsel parents about the risks of letting children have access to firearms in the home and advises that questions about the presence and availability of firearms be incorporated in the standard history-taking. http://pediatrics.aappublications.org/content/130/5/e1416.full

The important constant in all of these positions is that physicians should educate themselves about firearms, firearm handling and the risks associated with firearms in the home. Only with education will you then be able to counsel patients appropriately on this subject. And only with education will you be able to separate fact from fiction when it comes to legal exposure for this activity.

As always, we invite discussion in the comments section below.