Doctors are sending up red flags about laws that they say block them from giving patients independent medical care and advice. They call it “legislative inference.”
Five large professional groups—representing the country’s pediatricians, family doctors and surgeons–laid out their case in a New England Journal of Medicine opinion piece.
A number of new laws tell physicians what they can–or can’t–say to a patient. Internist Steven Weinberger, who co-authored the article and is CEO of the American College of Physicians, says one big example is in Florida. The National Rifle Association supports the Firearm Owners’ Privacy Act while detractors dubbed it the Docs & Glocks law. It restricts how doctors talk about guns in the home.
“They want to be free to ask the patients: Do you own a firearm? Is there a child, or are there children in the house Is it kept locked up?” Weinberger said.
Florida doctors can ask about guns but only if there’s a medical or safety reason, but critics say that exception is vague and puts physicians in a precarious position.
“It was left up to the patient, if the patient felt it was an appropriate question. That patient could then complain about the physician, and the sanctions would be significant–heavy fines, loss of physician’s license to practice.
That’s a major disincentive to even mention guns at all, Weinberger said.
Doctors weigh many factors when deciding what to say or do for a patient. Florida primary care and internal medicine physician Stuart Himmelstein says lawmakers shouldn’t be in the middle of that equation.
“Legislatures work–sorry to be cynical–but they work on political agendas,” he said.
Himmelstein cares for mostly older adults in his practice in Delray Beach, Florida. He says it’s appropriate to ask about guns if a wife comes in worried about a husband with dementia, or if a patient has a history of depression or violence.
“Or when I have a patient that comes in to the office with too many bruises, I might want to be inclined to make sure the home is safe,” Himmelstein said.
An injunction blocked the rule while opponents challenged it in court, then this summer a federal court upheld the law.
“Where will this go? Will this go to the Supreme Court, we don’t know,” Weinberger said.
Establishing doctor leeway
In Virginia, a 2012 proposal required an invasive ultrasound for every woman seeking an abortion.
“This is a look inside the uterus with a probe that sends sound waves and it’s actually putting the probe into a woman’s vagina. And the legislators are saying this has to be done, when in fact physicians have said there is absolutely no reason to do this,” Weinberger said.
That attempt made headlines all across the country, and eventually Virginia lawmakers revised the rule.
In Pennsylvania, there’s a law that requires doctors to check the oxygen levels of every newborn baby. It’s the newest in a short list of procedures that doctors are mandated to perform soon after a birth.
It’s a painless test, already routinely done, and state-of-the art today—but Pittsburg physician Amelia Paré says doctors need leeway to decide what’s the right thing to do in the moment.
Paré is a reconstructive surgeon but says she and colleagues in OB/GYN “talk at the scrub sink.”
The law is also meddlesome, she said, because medically accurate therapies may change over time.
“It’s nerve racking for a physician because this is law. So 20 years from now when the pulse oximeter may be completely obsolete, you’re thinking: ‘Shoot, nobody’s done that in 20 years,” Paré said.
Another new Pennsylvania law gives doctors a script to read when a pregnant woman learns her baby may have Down’s Syndrome.
‘Where do you draw the line?’
Critics are worried about “legislative intrusion.” But Pennsylvania Hospital obstetrician-gynecologist Peter Gearhart said that term might be too harsh.
“I think a lot of healthcare laws get created by legislators who truly have good intentions,” Gearhart said.
He leads a busy OB/GYN practice, has limited time, lots of information he needs to share—and he says–every woman’s needs are different.
Under state law, health providers are supposed to provide every pregnant woman with information about harvesting umbilical cord blood. The cord-blood banking can be a pricey option but could be a lifesaver for families with certain inherited genetic conditions.
“That sort of seems like it’s derived from a special interest that lobbied the legislature to develop that requirement,” Gearhart said.
“Should we require physicians to talk to their patients about looking both ways before they cross the street? Where do you draw the line between what is necessary to discuss with a patient?” Gearhart said.
A doctor’s judgment has to come first, he says.
“I don’t think this should be about a particular issue like handgun usage, or abortion or umbilical cord blood banking,” Gearhart said. “The relationship between a doctor and patient is sacred. There’s really no business having somebody who isn’t part of that demanding or requiring what goes on in that encounter.”
The Patient Trust Act
On Monday, Pennsylvania democrats held a public briefing on a bill called the Patient Trust Act.
State Rep. Dan Frankel, D-Allegheny, said it’s a bid to block laws that aren’t medically accurate or not based on scientific evidence that could interfere in the relationship between health care workers and patients.
Frankel said there have been several attempts to bring ‘copycat’ legislation to Pennsylvania from other states–such as the ultrasound-abortion rule in Virginia.
He says one rule, Act 13, has become law in Pennsylvania.
“Act 13 basically limits the ability of a provider to discuss the chemicals that are involved in natural-gas fracking with patients who might be harmed by them,” Frankel said.
Outside of emergency situations, if a doctors wants to know about the chemicals used in hydraulic fracturing, a physician has to sign a confidential agreement before a drilling company is required to hand over that information.
Pittsburgh surgeon Amelia Paré says that requirement and fear of legal action has had a chilling effect.
“I think it has scared physicians, I think it makes people more nervous about requesting this information. So it’s quite frankly avoided,” Paré said.
“Very rarely has there ever been any laws that prevented—or infringed on–the patient-physician relationship,” Paré said.