No, as a matter of fact, it isn’t

by Walter Olson on April 17, 2014

“It’s Doctors’ Duty to Promote Gun Safety With Patients” [Art Caplan, Medscape via Bill of Health] Next step: giving patients a hard time about kitchen or camping knives? [A. Barton Hinkle]

{ 13 comments }

1 Robert 04.17.14 at 11:17 am

Those safety rules that he Art Caplan enumerated, which he claimed that the “NRA doesn’t” promote, are in fact promoted by the NRA in their safety literature.

See: http://eddieeagle.nra.org/

I hope the NRA sues Art Caplan for spreading lies about their programs. In fact, I’ll call them right now and offer to donate to the cause.

2 wfjag 04.17.14 at 11:27 am

What a great new med mal cause of action — a doctor’s failure to warn a person who commits suicide that sticking a gun to the head could cause injury or death.

If this becomes a standard of care for the practice of preventive medicine, will the costs of NRA gun safety courses and dues be covered by the ACA?

3 Allan 04.17.14 at 11:35 am

IMHO, it is everybody’s responsibility to promote gun safety. And car safety. And other safety measures. I mean, I am all for measures to encourage kids to look both ways before crossing a street and not taking candy from strangers. So, if doctors do it, I am good with it.

As for the NRA, it seems they think it is ok for them to promote gun safety, but not for doctors…

4 Walter Olson 04.17.14 at 11:52 am

Allan: “Duty” has a specific meaning that goes beyond “I am good with their doing it if they see fit.” Unless you believe that every allergist and dermatologist also has an obligation to bend his or her clients’ ears about car safety and looking both ways at street crossings. Perhaps you do believe that.

5 Allan 04.17.14 at 1:10 pm

Walter, I am not sure that the article is talking about a legal duty. As it is firewalled, I cannot get to it. The snippet you linked to discusses the duty in terms of “should,” not must. I do think doctors should talk to patients about gun safety and I think the NRA and Surgeon General should promote this.

I would agree that we should not impose a duty on physicians to talk about gun safety that would give rise to a malpractice suit.

I wonder if one could successfully bring a malpractice suit if one has hypertension, one’s physician does not warn one not to eat salty foods, and one eats salty foods and suffers. I would think not. And I would think gun safety would fall into the same category.

6 wfjag 04.17.14 at 2:25 pm

@Allan: There’s no firewall if you use this website: http://www.medscape.com/viewarticle/822576

Next, Dr. Arthur L. Caplan, Ph.D., isn’t some gun control crank. He’s a heavy-weight in the filed of medical ethics. His current position is Director, Division of Medical Ethics, Dept. of Population Health, NYU Langone Medical Center. Accordingly, he’s formulating what will be taught as medical ethics and the appropriate standard of care for physicians, PAs and NPs at one of the premier medical schools, and that will likely be picked up by other medical schools.

In his article, he addresses gun ownership in relation to suicide risk, stating that typically a person who commits suicide by firearm purchases the firearm within 3 days before killing him or herself. He also notes that more people die from suicide than from auto accidents. He omits that people who kill themselves using firearms are only a small number of suicides. Still, he argues that gun dealers must be trained to spot symptoms of people who may be suicidal, and refuse to sell firearms to such persons (and, I suppose, to also report such persons to appropriate authorities for commitment for observation, as that would be the next logical step).

If the symptoms are so clear, the U.S. military would greatly appreciate Dr. Caplan informing the rest of America what they are, because despite the close quarters and supervision of the military over service members, and the intensive training of Officers, Non-Commissioned Officers and Enlisted personnel (and their families), there are great many suicides and genuine (if unsuccessful) attempts which the chains of command miss. With all of the training, attention and effort being paid by the military to suicide prevention, the people seriously contemplating suicide are still missed much of the time, and so it is completely risable to think that gun shop owners will be able to accurately predict who may or may not be a suicide risk.

But, given Dr. Caplan’s stature in medical education and ethics, his opinions could define the applicable standard of care for preventative medicine. In his article, he states:

”. . . we need a lot more doctors and nurses who will start to promote gun safety as part of their practice.”

A fairly routine definition of Standard of Care is:

“the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person’s actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the “standard” is often a subjective issue upon which reasonable people can differ.”

http://legal-dictionary.thefreedictionary.com/standard+of+care

Although I was being snarky above about creating a new theory of med mal liability, it would take very little to go from his statement to stating a duty to warn actionable in tort, if a physician’s patient committed suicide, and the physician could not document having had a thorough discussion of gun safety with the patient (and, also not warned others of the patient’s suicide risk, so they could observe and intervene, or pursue commitment for observation).

Although Dr. Caplan is entitled to his personal opinion disapproving of the NRA and its opposition to Pres. Obama’s nominee for Surgeon General, that should not make his opinion into a professional standard of care for physicians, PAs and NPs. However, his article comes very close to advocating for just that — and that carries tort liability consequences for physicians, as well as other consequences for patients.

7 Bumper 04.17.14 at 3:38 pm

Given the reduced reimbursements afforded by ObamaCare and the number of real medical things that must be covered within the short amount of time available, it is in-(insert your own seven letter word here)-conceivable that a physician would have time to say much more than, “How’s that .357 working out for you?”

8 Boblipton 04.17.14 at 3:58 pm

Allan: if everyone has a duty to warn people about gun safety, then Art Caplan is failing in his duty because he has failed to warn me personally. Therefore, if I shoot myself with a gun I will sue him. And maybe you.

Bob

9 Allan 04.17.14 at 4:33 pm

WFJag,

There is a firewall. One can register for free, but i don’t want to give them my information.

I agree completely that this should not rise to a standard of care. As you point out, this article does not advocate creating a standard of care that would be objectionable.

Just so we all agree: Gun safety is a good thing. Everyone should promote gun safety, including health care professionals. There should not be any tort liability for not doing so. There might be an exception where a health professional knows a patient is suicidal or homicidal and has access to a weapon, but even that is a stretch.

10 Robert 04.17.14 at 4:55 pm

“I think the NRA and Surgeon General should promote this.”

But the NRA *does* support. With free programs, too, available to everyone! And they have their “Eddie Eagle” program for kids:

http://eddieeagle.nra.org/

Dr. Caplan says explicitly “the NRA doesn’t” promote gun safety. That’s a lie by any definition.

While the NRA may have a part in making sure people have access to guns, they are also strong proponents of gun safety. If Caplan wants to limit the number of guns in the hands of people he should say so, and not try to conflate it with ‘gun safety’.

11 tim 04.17.14 at 6:35 pm

@wfjag

Dr. Caplan may not be a “gun control freak” (as you put it) but the article makes him out to be one. He speaks about the need to educate children that guns are bad. And that physicians should speak to their child patients about them.

I don’t know about you but I don’t want my nephews doctor to speak of guns at all. And I personally wouldn’t know how a discussion of “locking up your ammunition” would even come up in a discussion with my physician.

He also makes this statement:

One of the leading problems with guns is that we don’t educate children to know what to do when they find a gun or see a gun.

This is flat out wrong. Most parents who are gun owners have this very discussion all the time.

I even have issue with many of his statements in the second part of this story regarding suicide risk.

The people in New Hampshire — more than half of the gun shop dealers and those who own gun ranges who are involved with the program — are proud of it. The NRA may not like it

Why wouldn’t the NRA like it? Has he asked them?

And lastly the article is titled “Is Gun Violence a Public Health Problem?” but no where does he make the case or even attempts to answer this question.

I’m no fan of the NRA but – as a gun owner myself – Dr. Caplan is simply wrong here.

12 Scott 04.17.14 at 9:56 pm

I’ve always left the politically motivated questions blank on my health survey. Do you smoke? No. Do you own any firearms? _

13 wfjag 04.18.14 at 10:59 am

@Allen:
“As you point out, this article does not advocate creating a standard of care that would be objectionable.”

I’m not certain I agree with this conclusion. One of Dr. Caplan’s objectives was to express disapproval of the NRA’s objection to the President’s nominee for S.G. However, he also seems to be going beyond that, and may be signaling that he will propose a new standard of care for preventative medicine — that physicians, PAs and NPs check on and advocate “gun safety.”

“Everyone should promote gun safety, including health care professionals. There should not be any tort liability for not doing so. There might be an exception where a health professional knows a patient is suicidal or homicidal and has access to a weapon, but even that is a stretch.”

I disagree with everything other than everyone [as a generic idea] should promote gun safety. First, there are many instances in which “tort liability for not doing so” has arisen. At one time there was no tort liability for a business or land owner for injuries caused to a crime victim on or near the property owner’s premises. It was held that the premises owner had no duty owed to an individual to prevent a crime or protect the people from criminals (which is the standard applicable to the police, and why you cannot sue a cop when you’re mugged). However, there are an increasing number of jurisdictions holding that if the crime was “foreseeable” that the premises owner had a duty to provide adequate security (sometimes, even after business hours and off of the premises actually owned or controlled). The Restatement (3d Ed) of Torts (2012) will accelerate this since it eliminates an analysis based on legal duty and substitutes a factual inquiry based on foreseeability. What is foreseeable? Pretty much anything.

And, as far as tort liability “where a health professional knows a patient is suicidal or homicidal “, that’s already true. If the provider reasonably knows or should know that the patient poses a risk of substantial harm or death to him/herself or another, and (as to another) that person can reasonably be identified, then the provider is liable for failing to warn that other person, or notifying appropriate authorities to commit the patient for observation and evaluation. This conclusion has been reached under the standards of the Restatement (2d Ed.) of Torts (1965), which are followed by nearly all of the states, and appears to be the majority rule.

I believe that Dr. Caplan intended to provoke a public discussion. What he does not appear to understand is how complex the subject of “gun safety” is, or, given the changing standards of the Restatement (3d Ed) of Torts, the large increase in exposure to liability that will accompany any such change in the standard of care for preventative medicine, and the consequent invasion of patient privacy (which will be forced on providers attempting to limit their liability).

I’m a retired military officer. I’ve taught the pistol and rifle qualification courses, and have qualified on most individual and crew served weapons up to and including the Venerable Ma Deuce. That doesn’t make me exceptional — nearly anyone with 20+ years of military experience will have at least that much training and experience, and a lot of men and women have much more. I do not consider myself a “gun safety expert”, most fundamentally because every firearm has different characteristics which affect its safe handling. My brother hunts with black powder rifles. The one time he took me out, he took the musket away from me because he was concerned I would hurt myself (because I handled it like a breach loading rifle loaded with a cartridge — e.g., never look down the barrel of a black powder weapon to see if it is clear, because the powder may not have completely burned, and can then go off in your eye due to a slow burn). I am very familiar with M1911 type pistols and their safety features. My oldest son likes Glocks. The double trigger safety feature of a Glock is something I am very uncomfortable with; and, there have been cases of such pistols being fired and causing injury because the shooter did not realize s/he was putting too much pressure on the trigger and so not just releasing the safety. Glocks are safe pistols — if you understand and have practiced using their safety features. Unless you are trained and experienced in handling the particular make and model of weapon involved, addressing “gun safety” is foolish — especially because the listener may mistakenly believe that the generic information you (especially if you are an educated person like a “Doctor,” and so “speak with authority”) may provide is all that is needed — and it is not. In other words, what Dr. Caplan proposes may actually create greater dangers because lay people will assume that the Doctor is knowledgable, when s/he is actually ignorant on many important issues concerning gun safety.

Moreover, I have no confidence that medical records (especially as they are increasingly stored and transmitted in electronic form) are secure. My brother is a programmer (at the machine language level). One of his truisms is that any computer system can be hacked, and if there is money to be made, will be hacked. [and, he makes a lot of money trying to prevent that, or, more often, plugging the holes after the hack is discovered and the damage done.] Accordingly, I don’t want information about my gun ownership, or lack thereof, in my medical records. If a potential criminal doesn’t know whether or not I’m armed, he’ll more likely leave me alone (which is what I’d rather have, than a confrontation).

I was snarky about Dr. Caplan’s contention, since I don’t think he really understands the issues — and so, his proposal is risible. He is a great man within his field of expertise. However, like may such people, he does not know the limits of his knowledge, and in his position, may cause a lot of mischief (albeit while acting with good intentions; but the harm will still be suffered by others).

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