Ramblings of an Emergency Physician in Texas
By Dr. Helen (without a comment) and by Don Surber with a very nice comment. It’s astounding to me how commenters everywhere are on board with suppression of speech. And sad.
Nice to be noticed, though.
No related posts.
It is ridiculous, look at all the comments everywhere about doctors overstepping bounds and doctor’s arrogance, etc. People just seize on stereotypes and use them to support their arguement even though they may not really understand what we do or why. This is the tactic that is often leveled against physicians no matter what the issue. For example, in recent debate over midlevel schedule II prescribing rights, it is said that rather than protecting the pt, our primary goals are defense of market share, profit hogging, selfishness, etc.
Do doctors not use stereotypes as well? Do they not accuse others of being motivated solely by money, and ascribe all kinds of vile motives to them? Now they’re offended when it’s done to them?
How am I a hypocrite?
I confess I had to look up the 6th Amendment you cited, and cannot recall ever advocating against:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Because I haven’t. So, not hypocritical.
And you haven’t explained why you’re not denouncing this stupid Florida legislation.
even for you that’s a lame argument.
You may think so. It all depends on whose ox is being gored, I guess.
You physicians don’t think twice about condemning lawyers ad nauseum for being greedy and only being driven by money, but let anyone question YOUR profession’s motives, and you are shocked that anyone would think such a thing!! Shocked, I tell you!! How dare they!
Likewise, you’re yammering on about the First Amendment, and based on the subject matter, I’d bet you stand tall on the Second. But the Sixth – eh, not so much. All depends on what’s most important to your personal self interest, no real principle behind it.
I am for maximum freedom to the individual in every way, and think they’re all equally important, even if it’s a result I don’t care for. Your hypocrisy is alternately funny and sad.
It’s not docs that lose here. Oh, some pediatricians will have to make sure it’s okay to talk about gun safety, but it’s not docs that lose with this travesty.
it’s all of us. It’s free speech. THe solution to speech you don’t like is more speech, not restrictions.
Yes. Yammering on about the First Amendment. What a rube I am.
I never said you were a rube. I said you’re a hypocrite. You’re obviously quite intelligent. But either all of the Bill of Rights matters or it doesn’t. When you pick and choose which individual ones you’re going to support but work to undercut others, it diminishes the support for them all.
You’re right, it’s not just docs that lose when you do that. It’s all of us who believe in maximum freedom for the individual and the less government the better.
My bad, I meant the 7th Amendment. Had the 6th on the brain at work.
Do I need to explain that I denounce this legislation? Again, I support maximum freedom to the individual. I think we have far too many rules and regulations, promulgated by this or that idiotic state legislator responding to this or that lobbyist or even nonprofit justifying its existence. This legislation is just another example.
Isnt the seventh just an extension of the sixth but applied to civil suits for monetary penalty? How does this apply to anything, and why would the Grunt Doc by against any portion of the constituition? Ridiculous. I did, however, enjoy the use of “Rube” This is a term I have only heard used by Hunter S Thompson in the book “Hey Rube” and I think it is underutilized. Nice word choice.
The 7th codifies the right to a jury trial, also enshrined in the Declaration of Independence. Gruntdoc and the rest of the tort reformers in the physician/insurance industry ain’t too high on letting ordinary folks make decisions. They prefer purchased lobbyists/legislators.
Thanks for the compliment. I love that word.
Grunt Doc was actually the first to use the word
By my reading, most of the commenters are answering “should doctors ask” and not “should it be a crime for doctors to ask”. These are very different questions. Only a few are advocating making it a crime.
Your arguments on the first amendment protections are weak. This is about commercial speech because it’s part of the commercial business of practicing medicine. There are already huge speech restrictions on commercial speech. This would be just one more rule. It’s well established law that commercial speech can be regulated by the states.
But, this is also mostly posturing. A more serious and effective law would be something like this:
1. Any disclosure (intended or unintended) of patient gun ownership information by a doctor will result in immediate permanent revocation of their license to practice medicine unless:
a) it is medically necessary, or
b) it is required by court order, and the patient has been informed and given time to oppose that court order.
So if someone in the office gossips and (oops) discloses gun information, that’s loss of medical license. I expect doctors would then exercise good judgement and only ask about guns in situations where they perceive a medical need.
Hmm. My arguments in favor of free speech are found in the Constitution, yours in favor of restricting speech you disagree with are found in convenience. Tell me again whose arguments are weak?
And, to prove my point, your example ends with a physician losing their license over an error by an employee. Paranoid much?
My arguments on free speech are found in the opinions of the Supreme Court. They are the ones who created the divisions of various categories of speech protection like “commercial speech”. They are the ones who have decided that commercial speech gets only weak protection. I’m just relating the current interpretation of the Constitution. It’s how they reconcile FDA regulations and numerous other regulations with the Constitution.
As for a physician losing their license, it’s not that different from current law regarding other privacy issues. Current law for privacy violations is not much weaker than what I proposed. They can nail you really hard if they feel like it. There is a lot of prosecutorial judgement at work in terms of how they enforce existing privacy laws. They examine the situation and pick penalties that look likely to inspire reasonable behavior improvements. I was just making the privacy laws apply to this gun information also.
You may be unaware of it, but unauthorized disclosure any of the information listed by Massachusetts as private personal information has a penalty of up to 5 years in jail. This applies to all businesses, including medical practices. So far, the most severe penalty has been a few million dollars in fines for an egregiously lazy and uncooperative company that failed to protect credit card information. The prosecutors explained that they are planning to ramp up the penalties steadily but gradually so that people have time to get their act together. They want privacy treated as something that really matters. Nobody expects a free speech argument to have any effect in nullifying these laws.
I’m no expert on commercial speech, which makes sense. I, and other doctors, engage in Professional speech.
I saw this earlier, but will link it here, from the Volokh Conspiracy when this stupid law was tried in Virginia in 2006 (and thankfully avoided), and again this time to a more credulous Florida legislature.
Docs are already covered for info leaks by HIPAA, which has fines but licensure revocation is, AFAIK, not there. (The Feds can yank your ability to bill Medicare, which would really kill most docs’ careers).
And, again, it’s the wrong instinct to suppress speech you don’t like.
We’ve been agreeing on the proposed state laws being inappropriate. I’m pointing to a different alternative that makes gun information protected private information. This permits appropriate medical uses, while protecting privacy of this aspect of patient life. Privacy laws are also a suppression of speech. They are a less intrusive way to achieve the same goal of protecting privacy.
In other trivium, HIPAA has been replaced by HITECH, but the changes are modest. They are mostly clarifications, with a mild increase in penalties and removal of the defense of ignorance. Now penalties apply even when there is no negligence leading to the disclosure. The penalties are just lower.
Both the old and new law have the clause:
if the offense is committed with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.
A felony conviction like that will also revoke a license.
“I’m no expert on commercial speech, which makes sense. I, and other doctors, engage in Professional speech.”
Is there a distinction?
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