The “Shut Up and Practice Medicine” Argument

Recently, the Governor and HHS Director announced a pilot project to provide Medicaid services at Walmart retail clinics. Many physician groups, including our own Academy, have raised concerns about retail health clinics, warning that they undermine the medical home concept and may lead to greater fragmentation of care. Anticipating this criticism, the HHS Director was reported to have said, “South Carolina's significant physician shortage demands new solutions and leaves no room for detractors to complain.

This seems to be the new strategy for countering physician advocacy on policy issues: Assert that we have “no room to complain” and therefore, should remain silent on these issues. Sometimes the argument takes the form of claiming that we have a conflict of interest. Other variations allege that we’re incapable of comprehending the nuances of the issue due to our narrow interests in health care quality and maintaining the integrity of our profession. Sometimes—as in this case—the implied message is that we ought to mind our own business and get back to work. It’s a powerful argument. It’s so powerful and effective, it needs a special name.  I propose that we call it the “Shut Up and Practice Medicine” argument.

Of course, the Director’s remarks were spontaneous and purely rhetorical. There are presently no plans to muzzle physicians who oppose the “Walmart-ing” of healthcare in South Carolina. However, a more pernicious example of the Shut Up and Practice Medicine strategy is now working its way through state legislatures and federal courts.

Last year, the epitome of the Shut Up and Practice Medicine argument was introduced in the South Carolina State Legislature. House Bill 3416 would make it illegal for physicians to “ask a patient about firearm ownership or possession of a firearm or the presence of firearms in the patient's home.” This bill mirrors the notorious Florida Gun-Gag Act. Although there has been no action on the South Carolina bill this year, recent events involving Florida’s version of the law are sure to embolden its proponents.

All of the major medical organizations recommend that physicians incorporate a discussion of firearm safety into their patient encounters. According to a study published in the February 2014 issue of Pediatrics, approximately 10,000 children are killed or hospitalized each year due to firearm injuries. If a viral agent was killing and maiming this many children we would be wearing ribbons, holding telethons, and collecting money door-to-door to find a cure. Instead, we are gently encouraged to talk about gun safety. It’s a prudent but tepid response to a crisis of this magnitude.

Unfortunately, even a lukewarm response to the epidemic of gun violence was too much for some gun owner in Florida. They claimed that having to listen to their doctor talk about firearm safety was a form of “political harassment,” and rather than exercise their right not to listen (or just find a new doctor), they decided to craft a law that would forever silence the harassers.

The Florida Firearm Owner’s Privacy Act (hereafter I will refer to it as the Gun-Gag Act since gagging physicians is the only practical effect of the law) was introduced in 2011. In its original form, a physician could be convicted of a felony and fined up to $5 million for simply asking if a patient had a firearm in their home. A toned-down version of the law—without the felony status and multimillion dollar fine—was adopted in June 2011. Almost immediately, the Florida chapters of the AAFP, AAP, and ACP filed suit in federal court, rightly claiming that the law violated physicians’ First Amendment rights. A federal judge swiftly granted an injunction against enforcing the law.

One would think that this would be the end of this outrageous law, but gun-rights advocates were not so easily dissuaded. The State of Florida appealed the injunction, and in July of this year a startling verdict was handed down. In a 2-1 decision, the Court of Appeals for the 11th Circuit vacated the injunction, allowing the State of Florida to go forward with its plan to punish physicians who have the audacity to talk with their patients about guns and gun violence.

The opinion of the majority boils down to this: Because physicians are licensed professionals, what we say in our professional capacity is subject to regulation by the state, and First Amendment rights do not apply. Oliver Wendell Holmes coined the phrase “shouting fire in a crowded theater” as a metaphor to describe the limits of free speech. The Gun-Gag law goes far beyond the free speech limitations imagined by Justice Holmes. It’s equivalent to a law that prohibits a fireman from announcing a real fire so as not to disturb the audience.

The implication of the Gun-Gag law and the recent Court of Appeals opinion are immense and disturbing, as noted by Judge Wilson in his dissenting opinion:
Based on the Majority’s holding, doctors could be prohibited in the future from speaking to their patients about any particular topic including the virtues of any school of medical thought, because such conversations are, strictly speaking, irrelevant to a patient’s care.
The Gun-Gag law lays the groundwork for permanently silencing physicians on practically any social or political issue. As Judge Wilson notes, “if the State believes that doctors are complaining to their patients that the Act itself is bad for public safety, the State could pass a law banning doctors from speaking about the Act.” Thus, we even lose the right to complain about our rights being infringed.

Using the logic of the Gun-Gag Law, how long will it take for the tobacco industry to convince legislators that patients have a right to not be bothered by questions about smoking? How long will it take the anti-vaccination crowd to lobby for relief from our immunization recommendations? Overweight people are surely tired of being harangued about diet and exercise. Don’t they also deserve relief from our harassment?

It’s our job to tell people things they would rather not hear: “No, an antibiotic won’t help your sniffles,” and “Yes, you really need this flu shot,” and “Please, think of your grandchildren and don’t keep a loaded pistol on the nightstand.” This is what we do, and it might be our most important duty as physicians. And this duty to speak uncomfortable truths does not end at the exam room door. Our professional responsibility also compels us to say things to policymakers—and society at large—that they would rather not hear: “No, promoting retail clinics won’t fix what’s wrong with our healthcare system,” and “Maybe it’s not a good idea to allow non-physicians to practice medicine independently,” and “Yes, expanding Medicaid would have provided affordable healthcare for over 190,000 South Carolinians.”

When physicians are silenced, a void is created in the marketplace of ideas. It’s a void that other voices are quite willing to fill. There are plenty of politically savvy groups clamoring for influence: Groups who want to practice medicine without a medical degree; unscientific practitioners eager to promote their nostrums; pseudoscientists intent on misinforming the public about the benefits of immunizations; and political ideologues blind to the inequities of the current healthcare system.

Perhaps we should feel honored. The extent to which gun-rights advocates were willing to go—in effect, depriving a class of citizens of their First Amendment rights—is a testament to the perception that physicians have the power to shape society. Judge Wilson acknowledged this power in his dissent:
Doctors asked patients about firearms in order to give specifically tailored—and thus more effective—firearm safety information. Indeed, amicus curiae supporting the State’s legislation explain that the Act is necessary because a “doctor’s questions can interfere with patients’ exercise of the right [to bear arms] by putting patients in a hesitant position where they question their ownership of firearms because of physician disapproval.” That statement is staggering. It suggests that the perceived problem with doctors’ truthful, non-misleading message regarding firearm safety was that it was working, so the message was silenced.  
Our approval and disapproval matters to patients and policymakers. That’s an awesome power and a heavy responsibility. Consequently, we need to carefully guard this power, always insuring that our opinions are based on evidence and scientific principles. Yet, having this power means nothing if it’s not exercised. Too few physicians take time to participate in organized medicine. We constantly struggle to maintain our membership rolls and PAC contributions. It’s as if most physicians have decided to save everyone the time and trouble by gagging themselves.

The Gun-Gag Law will surely be appealed to a higher court, so there’s still time for physicians to choose. We can remain silent and practice the brand of medicine others create for us, or we can speak out, get organized, and spend a little time and money stating our case to the world. The choice is yours: Shut up or practice medicine.

This article was published in South Carolina Family Physician.