One of more controversial provisions of Pennsylvania's ACT 13 is the inclusion of what has become known as the Medical Gag Rule.
Chemical composition, with the exception of those deemed as "trade secrets" are supposed to be listed on a web site called FracFocus.org. Pennsylvania is 1 of 11 states which require drillers to use FracFocus for report purposes.
In the event of an emergency and/or the need to treat a patient suspected of being exposed to the "fracking" chemicals, Medical Professionals and Emergency Responders need to know what chemicals may be involved, including those deemed as "trade secrets". Act 13 contains language based on Colorado Oil and Gas Conservation Commission (CCOGCC) regulations for chemical disclosure.
(10) A vendor, service company or operator shall identify the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information to any health professional who requests the information in writing if the health professional executes a confidentiality agreement and provides a written statement of need for the information indicating all of the following:
The information is needed for the purpose of diagnosis or treatment of an
(ii) The individual being diagnosed or treated may have been exposed to a hazardous chemical.
(iii) Knowledge of information will assist in the diagnosis or treatment of an individual.
The crux of the controversy is the CONFIDENTIALITY AGREEMENT. (Click here to view Colorado Oil and Gas Conservation Commission (CCOGCC) Confidentiality Agreement Form 35)
Since 2012, when Act 13 became law, two doctors have been filed lawsuits regarding the Confidentiality Agreement requirement. It was argued that the confidentiality requirement is unconstitutional and interferes with the ability to diagnose and treat patients who may have been affected by fracking liquids. Furthermore the gag provision impedes a doctor's ethical obligation to share information with other medical providers that can improve patient care.
In the first case, Doctor Mehernosh Khan claimed the medical gag would affect his ability to treat his patients. A Pennsylvania Commonwealth Court declined to hear the case based on the fact that Dr. Khan has not been directly affected by the law since none of his patients have been exposed to frack fluid. In December 2013, as part of a lawsuit regarding the medical gag and zoning issues contained in ACT 13, the Pennsylvania Supreme Court reversed the Commonwealth Court's decision.
Following the Pennsylvania Supreme Court decision, Dr. Alfonso Rodriguez filed a lawsuit. Dr. Rodriguez states his First Amendment right to free speech has be violated by Act 13. One of Dr. Rodriguez's patients is an oil and gas worker who was exposed to a chemical laden fluid as the result of a well blowout. The patient required extensive treatment due to acute kidney failure. Dr. Rodriguez contends that he now has to provide legal documentation to his patients informing them that he may not be able to share all elements of their treatment plan with them due to restrictions put in place by Act 13. The state Department of Health tried to calm fears in the medical community that Act 13 would not affect patient care through a letter sent to the state's medical association. The Pennsylvania Medical Society has publicly stated it is not concerned with Act 13's gag order.
In March 2015: (emphasis added)
A federal appeals court has upheld the dismissal of a lawsuit by a Pennsylvania doctor who challenged a state-imposed "medical gag rule" that bars physicians from revealing information they receive from Marcellus Shale drillers about fracking chemicals.
Dr. Alfonso Rodriguez, a nephrologist from Dallas in Luzerne County, simply doesn't have legal standing to bring the case, the U.S. Court of Appeals for the Third Circuit concluded in a ruling issued this week.
That decision backs an order by U.S. Middle District Judge A. Richard Caputo handed down last year dismissing Rodriguez's suit against the secretary of the state Department of Environmental Protection and Attorney General Kathleen Kane.
Caputo dismissed the doctor's suit after noting Rodriguez didn't allege that he had been in any situations where he needed or had requested fracking chemical information or had been asked to sign a confidentiality agreement. Therefore, Rodriguez had not suffered the type of harm needed to give him legal standing to sue under federal law.
In the appeals court's opinion backing Caputo's decision, Judge Marjorie O. Rendell noted that a driller's fracking chemical makeup is considered to be proprietary business information that would not be shared with competing firms.