Physicians, Don't borrow trouble
One of the best games in town is litigation, and litigating
against physicians is even more popular (and more successful) than suing gun
manufacturers. Physicians and their malpractice insurance carriers are well
aware that litigators are constantly looking for new opportunities to sue. Let's
talk about one of those new areas of liability exposure.
Nowadays, many physicians and other health care providers are engaging in the
very risky, well intentioned, albeit naive and politically
inspired business of asking their patients about ownership, maintenance and
storage of firearms in the home, and even suggesting removal of those firearms
from the home. Some could argue that this is a "boundary violation," and it
probably is, but there is another very valid reason why these professionals
should NOT engage in this practice -- MASSIVE LIABILITY.
Physicians are licensed and certified in the practice of medicine, the treatment
of illnesses and injuries, and in preventative activities.
They may advise or answer questions about those issues. However, when physicians
give advice about firearms safety in the home, without certification in that
field, and without physically INSPECTING that particular home and those
particular firearms, they are functioning outside the practice of medicine.
Furthermore, if they fail to review the gamut of safety issues in the home, such
as those relating to electricity, drains, disposals, compactors, garage doors,
driveway safety, pool safety, pool fence codes and special locks for pool gates,
auto safety, gas, broken glass, stored cleaning chemicals, buckets, toilets,
sharp objects, garden tools, home tools, power tools, lawnmowers, lawn
chemicals, scissors, needles, forks, knives, and on and on, well, you get the
drift. A litigator could easily accuse that physician of being NEGLIGENT for not
covering whichever one of those things that ultimately led to the death or
injury of a child or any one in the family or even a visitor to the patient's
home. Why open the door to civil liability?
To engage in Home Safety Counseling without certification, license or formal
training in home safety and Risk Management and to
concentrate on one small politically correct area, i.e., firearms to the neglect
of ALL of the other safety issues in the modern home, is to invite a lawsuit
because the safety counselor, (Physician) Knew, Could have known or Should have
known that there were other
dangers to the occupants of that house more immediate than firearms. Things like
swimming pools, buckets of water, and chemicals in homes are involved in the
death or injury of many more children than accidental firearms discharge [
Source: CDC.] Firearms are a statistically small, nearly negligible fraction of
the items involved in home injuries. Physicians SHOULD know that. So, why all of
a sudden do some physicians consider themselves to be firearms and home safety
experts? Where is their concern for all the other home safety issues that they
DON'T cover with their patients? If you are going to counsel in any aspect of
home safety, you had better be
certified in that subject and cover *all* aspects of home safety, not just the
politically popular ones.
Once physicians start down this path of home safety counseling, they are
completely on their own. A review of their medical malpractice insurance will
reveal that if they engage in an activity for which they are not certified, the
carrier will not cover them if (or when) they are sued.
Consider a physician asking the following questions of his or her malpractice
One of my patients is suing me for NOT warning them that furniture polish was
poisonous and their child drank it and died. I only
warned them about firearms, drugs and alcohol. Am I covered for counseling
patients about firearms safety while not mentioning and giving preventative
advice about all the other dangers in the home, and doing so without formal
training or certification in any aspect of home safety risk management? You know
How much training and certification do I need to become a Home Safety Expert
Doctor? They will tell you that you are either a pediatrician or you are the
National Safety Council. But, you don't have certification to do the National
Safety Council's job for them.
Homeowners and parents are civilly or criminally responsible for the safety or
lack thereof in their homes. My advice to physicians is to
not borrow trouble by presuming to be able to dispense safety advice outside
your area of expertise: the practice of medicine. Your insurance carrier will
love you if you simply treat injuries and illnesses, dispense advice on how to
care for sick or injured persons, manage sanitation problems and try to prevent
disease, but stay out of the Risk Management business unless you are trained and
certified to do it. For example, E.R. doctors do not tell accident victims how
to drive safely.
Now, let's discuss the very serious issues involving the lawful possession and
use of firearms for self and home defense, and the danger and liabilities
associated with advising patients to severely encumber the firearm(s) with
locked storage, or advising the patient to remove them entirely. Patient X is
told by Doctor Y to remove or lock up a firearm so it is not accessible for self
and home defense. Patient X, does as counseled and has no firearm available at
close hand. Subsequently, patient is then the victim of a home invasion and
calls 911, but the police are buried in calls and don't arrive for 20 minutes
during which time Patient X is raped, robbed and murdered. Anyone can see the
liability issue here, particularly Risk Management specialists and liability
It's just a matter of *when* and not *if* this will happen. Sooner or later, it
will - if a home invasion takes place and Patient X takes Doctor Y's advice.
Now, imagine what follows this horrendous but common event. Who is to blame? The
perpetrator is long gone, and even so, the Plaintiff's litigator will state that
the perpetrator could have been neutralized by the appropriate lawful defensive
use of a firearm, which *had* been in the home, but was no longer available to
the deceased/injured because he/she followed a Physician's *expert*
advice to render him/herself and his/her home defenseless against violent crime
The Litigator will further argue that the Physician Knew, Could have known,
Should have known that removing a firearm from use for home defense would result
in harm to the patient if and when a crime was committed against the patient in
the home, as any reasonable person would have surmised.
If one acknowledges the already dangerous general liability of home safety
counseling and then adds the very risky practice of advising patients to disarm
themselves in the face of the reality of violent crime daily perpetrated against
home owners, condo and apartment tenants, it is apparent that the Physician is
placing him/herself in a very risky position for suit.
It is my strong recommendation to Malpractice Carriers and those Physicians they
insure to strictly avoid this high risk practice and reserve counseling for the
area of expertise in which they are certified: Medicine. In my professional
opinion, this is an emotionally charged political issue that Physicians and
their Carriers should not be manipulated for whatever well-intentioned reason
into taking the risk, which is considerable......
Physicians in doubt of the veracity of what I've said are encouraged to call
their carriers and ask them what they currently cover, and
to ask if this new counseling policy is covered under the existing policy. We
already know what they will say: Don't borrow trouble.
Since retiring from the LA County Sheriff's Department, Mr. Horn has provided
Risk Management and related issue Human resource consulting to IBM, Gates Lear
jet, National Semiconductor, and Pinkerton International
Security and Protection Services, among others.
|Joe Horn, Sixth Mesa Risk Management, Los
Angeles County Sheriff's Department, Retired. (c) 2000 Permission is granted to
reproduce this article if left intact and complete.
comments are the personal opinion of the writer and not intended to
represent any government agency, whatsoever.
Los Angeles County Sheriff's Department,