Wollschlaeger v. Governor of Fla.
| Decision Date | 14 December 2015 |
| Docket Number | No. 12–14009.,12–14009. |
| Citation | 814 F.3d 1159 |
| Parties | Dr. Bernd WOLLSCHLAEGER, Dr. Judith Schaechter, Dr. Tommy Schechtman, American Academy of Pediatrics, Florida Chapter, American Academy of Family Physicians, Florida Chapter, American College of Physicians, Florida Chapter, Inc., Roland Gutierrez, Stanley Sack, Shannon Fox–Levine, Plaintiffs–Appellees, v. GOVERNOR OF THE STATE OF FLORIDA, Secretary, State of Florida, Surgeon General of the State of Florida, Secretary, Health Care Administration of the State of Florida, Division Director, Florida Department of Health, Division of Medical Quality Assurance, George Thomas, Jason Rosenberg, Zachariah P. Zachariah, Elisabeth Tucker, Trina Espinola, Merle Stringer, James Orr, Gary Winchester, Nabil El Sanadi, Robert Nuss, Onelia Lage, Fred Bearison, Donald Mullins, Brigette Rivera Goersch, Bradley Levine, Defendants–Appellants. Broward County Medical Association, Broward County Pediatric Society, Palm Beach County Medical Society, Florida Public Health Association, University of Miami School of Law and Youth Clinic, Children's Healthcare is a Legal Duty, Inc., Early Childhood Initiative Foundation, American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, American Academy of Family Physicians, American Academy of Orthopaedic Surgeons, American College of Surgeons, American College of Preventive Medicine, American College of Obstetricians and Gynecologist, American Congress of Obstetricians and Gynecologists, American Psychiatric Association, Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, National Rifle Association of America, American Medical Association, ACLU Foundation of Florida, Alachua County Medical Society, American Public Health Association, American Association of Suicidology, Suicide Awareness Voices of Education, Law Center to Prevent Gun Violence, Amicus Curiae. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
814 F.3d 1159
Dr. Bernd WOLLSCHLAEGER, Dr. Judith Schaechter, Dr. Tommy Schechtman, American Academy of Pediatrics, Florida Chapter, American Academy of Family Physicians, Florida Chapter, American College of Physicians, Florida Chapter, Inc., Roland Gutierrez, Stanley Sack, Shannon Fox–Levine, Plaintiffs–Appellees,
v.
GOVERNOR OF THE STATE OF FLORIDA, Secretary, State of Florida, Surgeon General of the State of Florida, Secretary, Health Care Administration of the State of Florida, Division Director, Florida Department of Health, Division of Medical Quality Assurance, George Thomas, Jason Rosenberg, Zachariah P. Zachariah, Elisabeth Tucker, Trina Espinola, Merle Stringer, James Orr, Gary Winchester, Nabil El Sanadi, Robert Nuss, Onelia Lage, Fred Bearison, Donald Mullins, Brigette Rivera Goersch, Bradley Levine, Defendants–Appellants.
Broward County Medical Association, Broward County Pediatric Society, Palm Beach County Medical Society, Florida Public Health Association, University of Miami School of Law and Youth Clinic, Children's Healthcare is a Legal Duty, Inc., Early Childhood Initiative Foundation, American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, American Academy of Family Physicians, American Academy of Orthopaedic Surgeons, American College of Surgeons, American College of Preventive Medicine, American College of Obstetricians and Gynecologist, American Congress of Obstetricians and Gynecologists, American Psychiatric Association, Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, National Rifle Association of America, American Medical Association, ACLU Foundation of Florida, Alachua County Medical Society, American Public Health Association, American Association of Suicidology, Suicide Awareness Voices of Education, Law Center to Prevent Gun Violence, Amicus Curiae.
No. 12–14009.
United States Court of Appeals, Eleventh Circuit.
Dec. 14, 2015.
Douglas Hallward–Driemeier, Bruce S. Manheim, Jr., Jonathan E. Lowy, Daniel R. Vice, Augustine Ripa, Ropes & Gray, LLP, Washington, DC, Dennis G. Kainen, Weisberg Kainen Mark, PL, Hal M. Lucas, Hal M. Lucas, P.A., Edward M. Mullins, Astigarraga Davis, Miami, FL, for Plaintiffs–Appellees.
E. Jason Vail, Jolly Peterson & Truckenbrod, PA, Allen C. Winsor, Pam Bondi, Timothy David Osterhaus, Attorney General's Office, Tallahassee, FL, for Defendants–Appellants.
Anthony T. Caso, Chapman Univ. School of Law, Orange, CA, Bryan H. Heckenlively, Munger Tolles & Olsen, LLP, San Francisco, CA, Richard Harry Levenstein, Kramer Sopko & Levenstein PA, Stuart, FL, Charles J. Cooper, Peter A. Patterson, David H. Thompson, Cooper & Kirk, PLLC, Washington, DC, Thomas Richard Julin, Jamie Zysk Isani, Gunster Yoakley & Stewart, PA, Nancy Gbana Abudu, Maria Kayanan, ACLU Foundation of Florida, Inc., Gerald Edward Greenberg, Gelber Schachter & Greenberg, PA, Grace Lee Mead, Stearns Weaver Miller Weissler Alhadeff & Sitterson, PA, Miami, FL, Randall C. Marshall, American Civil Liberties Union, Montgomery, AL, for Amicus Curiae.
Before TJOFLAT and WILSON, Circuit Judges, and COOGLER,* District Judge.
ON PETITION FOR REHEARING
TJOFLAT, Circuit Judge:
We sua sponte vacate and reconsider our revised opinion in this matter, reported at 797 F.3d 859. We substitute in its place the following opinion.
The Governor of the State of Florida, other Florida officials, and members of the Board of Medicine of the Florida Department of Health (collectively, the "State"), appeal from the District Court's grant of summary judgment and an injunction in favor of a group of physicians and physician-advocacy groups (collectively, "Plaintiffs") enjoining enforcement of Florida's Firearm Owners Privacy Act1 (the "Act") on First and Fourteenth Amendment grounds.
The Act seeks to protect patient privacy by restricting irrelevant inquiry and record-keeping by physicians on the sensitive issue of firearm ownership and by prohibiting harassment and discrimination on the basis of firearm ownership. The Act does not prevent physicians from speaking with
patients about firearms generally. Nor does it prohibit specific inquiry or record-keeping about a patient's firearm-ownership status when the physician determines in good faith, based on the circumstances of that patient's case, that such information is relevant to the patient's medical care or safety, or the safety of others.
Society has traditionally accorded physicians a high degree of deference due to their superior knowledge, educational pedigree, position of prestige, and "charismatic authority," resulting from their "symbolic role as conquerors of disease and death." Paula Berg, Toward A First Amendment Theory of Doctor–Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 B.U. L.Rev. 201, 226 (1994). This deference reaches its apex in the examination room where patients are in a position of relative powerlessness. Patients must place their trust in the physicians' guidance and submit to the physicians' authority.
With this great authority comes great responsibility. To protect patients, society has long imposed upon physicians certain duties and restrictions that define the boundaries of good medical care. In keeping with this tradition, the State passed the Act. The Act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care—especially not when that inquiry or record-keeping constitutes such a substantial intrusion upon patient privacy—and that good medical care never requires the discrimination or harassment of firearm owners.
In doing so, the Act plays an important role in protecting what gets into a patient's record, thereby protecting the patient from having that information disclosed, whether deliberately or inadvertently. The Act closes a small but important hole in Florida's larger patient-privacy-protection scheme. Given this understanding of the Act, and in light of the longstanding authority of States to define the boundaries of good medical practice, we hold that the Act is, on its face, a permissible restriction of physician speech. Physicians remain free—as they have always been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful.
Accordingly, we reverse the District Court's grant of summary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act.
I.
On June 2, 2011, Florida Governor Rick Scott signed the Act into law. The Act created Fla. Stat. § 790.338, entitled "Medical privacy concerning firearms; prohibitions; penalties; exceptions," and amended the Florida Patient's Bill of Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same provisions. The Act also amended Fla. Stat. § 456.072, entitled "Grounds for discipline; penalties; enforcement," to provide for disciplinary measures for violation of the Act. The Florida legislature passed the Act in response to complaints from constituents that medical personnel were asking unwelcome questions regarding firearm ownership, and that constituents faced harassment or discrimination on account of their refusal to answer such questions or simply due to their status as firearm owners.2
The Act provides, in relevant part, that licensed healthcare practitioners and facilities (1) "may not intentionally enter" information concerning a patient's ownership of firearms into the patient's medical record that the practitioner knows is "not relevant to the patient's medical care or safety, or the safety of others," id. § 790.338(1) ; (2) "shall respect a patient's right to privacy and should refrain" from inquiring as to whether a patient or their family owns firearms, unless the practitioner or facility believes in good faith that the "information is relevant to the patient's medical care or safety, or the safety of others," id. § 790.338(2) ; (3) "may not discriminate" against a patient on the basis of firearm ownership, id. § 790.338(5) ; and (4) "should refrain from unnecessarily harassing a patient about firearm ownership," id. § 790.338(6).3
Violation of any of the provisions of the Act constitutes grounds for disciplinary action under § 456.072(2). Fla. Stat. § 456.072(1)(nn). Furthermore, "[v]iolations of the provisions of subsections (1)-(4) constitute grounds for disciplinary action under [Fla. Stat. §§ ] 456.072(2) and 395.1055." Fla. Stat. § 790.338(8). Thus, if the Board of Medicine of the Florida Department of Health (the "Board") finds that a physician has violated the Act, the physician faces disciplinary measures including a fine, restriction of practice, return of fees, probation, and suspension or revocation of their medical license. Fla. Stat. § 456.072(2). An investigation culminating in disciplinary action may be initiated against a physician by the Department of Health or may be triggered by a citizen's complaint. Fla. Stat. § 456.073. The minutes of a...
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Wollschlaeger v. Governor of Fla.
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