Dr. Bernd Wollschlaeger, Dr. Judith Schaechter, Dr. Tommy Schechtman, Am. Acad. of Pediatrics, Fla. Chapter, Am. Acad. of Family Physicians, Fla. Chapter, Am. Coll. of Physicians, Fla. Chapter, Inc. v. Governor Florida
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| 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. |
| Docket Number | No. 12-14009,12-14009 |
| Decision Date | 28 July 2015 |
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 FOR THE ELEVENTH CIRCUIT
July 28, 2015
D.C. Docket No. 1:11-cv-22026-MGC
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Appeal from the United States District Court for the Southern District of Florida
ON PETITION FOR REHEARING
Before TJOFLAT and WILSON, Circuit Judges, and COOGLER,* District Judge.
TJOFLAT, Circuit Judge:
We sua sponte vacate and reconsider our original opinion in this matter, reported at 760 F.3d 1195. 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
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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.
Society has traditionally accorded physicians a high degree of deference due to factors such as their superior knowledge, education, and "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. When a patient enters a physician's examination room, the patient is in a position of relative powerlessness. The patient must place his or her trust in the physician's guidance and submit to the physician's authority.
With this authority comes responsibility. To protect patients, society has long imposed upon physicians certain duties and restrictions that operate to define the boundaries of good medical care. In keeping with this tradition, the State passed the Act.
The Act seeks to protect patient privacy by restricting irrelevant inquiry and record-keeping by physicians on the sensitive issue of firearm ownership. The Act does not prevent physicians from speaking with patients about firearms generally.
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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.
Rather, 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. 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. Plaintiffs 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.
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
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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
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The Act provides, in relevant part, that licensed health care practitioners and facilities (i) "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," § 790.338(1); (ii) "shall respect a patient's right to privacy and should refrain" from inquiring as to whether a patient or his or her 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," § 790.338(2); (iii) "may not discriminate" against a patient on the basis of firearm ownership, § 790.338(5); and (iv) "should refrain from unnecessarily harassing a patient about firearm ownership," § 790.338(6).3
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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 fines, restriction of practice, return of fees, probation, and suspension or revocation of his or her 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 June 2, 2011, meeting of the
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Rules/Legislative Committee of the Board indicate that the Board is prepared to initiate disciplinary proceedings against a physician who violates the Act, stating that "the Committee [has] determined [that] violation of [the Act] falls under failure to comply with a legal obligation and the current disciplinary guidelines for this violation would apply." Fla. Bd. of Medicine Rules/Legislative Comm., Meeting Report, at 3 (Jun. 2, 2011), available at http://ww10.doh.state.fl.us/pub/medicine/Agenda_Info/Public_Information/Public_Minutes/2011/Committees/R-L/060211_Minutes.pdf.
On June 6, 2011, four days after Governor Scott signed the Act into law, Plaintiffs filed a 42 U.S.C. § 1983 action against the State in the United States District Court for the Southern District of Florida, alleging that the inquiry, recordkeeping, discrimination, and harassment provisions of the Act facially violate the First and Fourteenth Amendments of the United States Constitution, and seeking declaratory and injunctive relief. Plaintiffs contended that the Act imposes an unconstitutional, content-based restriction on speech, is overbroad, and is unconstitutionally vague.
On September 14, 2011, finding that Plaintiffs were likely to succeed on the merits, the District Court preliminarily enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act, together
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with the provisions providing for discipline of physicians who violate the Act. Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367, 1384 (S.D. Fla. 2011).
On June 2, 2012, the District Court...
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