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Pa. Act 13 ruling revives questions on doctor 'gag order'
December 30, 2013 - Ben Klein
Following this month's state Supreme Court decision, Act 13's confidentiality rule for doctors is now back in play.
By Anya Litvak, Post-Gazette, Associated Press
This month's state Supreme Court decision on Pennsylvania's major oil and gas law, Act 13, revives the legal challenge to a provision allowing health care professionals access to proprietary frack fluid formulas -- if they sign a confidentiality agreement.
It's not clear how many times since Act 13's enactment in February 2012 that the clause -- dubbed by opponents a "gag order" on medical practitioners -- has been used, if at all.
State officials at the Department of Environmental Protection said they're not aware of any such requests being made, nor is Gov. Tom Corbett's energy executive, Patrick Henderson. Anthony Pizon, chief of the division of medical toxicology at the University of Pittsburgh Medical Center, said he doesn't know of any physicians who have been anxious about the idea of disseminating trade secrets during the course of treating their patients.
"We have really not come across any big issues with this," he said. "I don't think it's really that big of a deal."
Bernard Goldstein, an environmental toxicologist and former dean of the University of Pittsburgh Graduate School of Public Health, and an outspoken critic of the oil and gas industry, contends that any lawyer advising a doctor faced with such a confidentiality agreement would say that it opens a Pandora's box of liability that won't be covered by malpractice insurance.
Perhaps the bigger question, though, is how useful the proprietary information is in diagnosing a patient.
The frack fluid composition that would be disclosed to a doctor under this provision accounts for the brew that's mixed just before it's pumped down a particular well. When it flows back out of the well, the chemistry is different.
"We've got more to worry about from stuff that comes up from underground," Dr. Goldstein said. "This stuff is far more toxic, in my view, than the hydrofracturing chemicals."
Experts agree that the most likely path of exposure to frack fluids is from surface spills or leaking impoundments and tanks. Such releases would likely contain a mixture that would have elements of the original frack fluid recipe but also could include constituents pulled out of the ground and compounds formed by the interaction of chemicals mixed together.
For that reason, the information that Act 13 requires be made available to physicians isn't the whole picture, but a small piece of the puzzle, said Dr. Pizon.
Still, when dealing "a vague constellation of symptoms," which is how most patients present, he said, every detail helps.
"The most helpful information is basically what chemicals are in their well water and what chemicals are in their air at home," he said. "Regardless of what chemicals are using for hydraulic fracturing, if the patient is not being exposed to it," it doesn't matter.
Nothing in Act 13 requires companies to give physicians access to the exact composition of produced water pits and oil and gas operators aren't required to know or disclose that information to any other agency.
That, however, is outside the scope of the legal challenge brought by a Pennsylvania physician, who joined several southwestern Pennsylvania municipalities in challenging Act 13. The Supreme Court ruled Dec. 19 that large swaths of the law governing whether municipalities have a say in the placement of wells, pipelines and compressor stations were unconstitutional.
The court didn't say the same about the doctor confidentiality provision. Instead, it threw the issue back to the Commonwealth Court, reversing the lower court's previous decision that the physician didn't have standing to argue the issue.
In the majority opinion, Chief Justice Ronald Castille said the doctor and all health professionals who might have occasion to request frack fluid chemicals are put into "the untenable and objectionable position" of "choosing between violating a confidentiality agreement and violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care."
That's if doctors ask for the information and find they're unable to keep it secret without compromising patient safety.
"I don't see why this is an issue," said Steve Silverman, an attorney and shareholder with Babst Calland, which represents oil and gas companies. "The confidentiality agreement allows the physician to use that information however he/she deems it for purposes of treating that patient. I don't see the need for the physician to use that information for any other purpose."
The language of Act 13's doctor rule was modeled on a similar provision passed in Colorado in 2011, which also inspired anxiety in the medical community there. In the past year, the Colorado Medical Society asked the state to clarify whether doctors can share the information they receive from oil and gas companies with their patients and with public health professionals.
In April, the Colorado Oil and Gas Conservation Commission, a state government agency, spelled out its intention in a letter meant to allay those concerns. "The right to receive the information includes the right to share the information with the patient and with other health providers," the letter states.
It also clarifies that only the doctor signing the confidentiality agreement is bound by it, not the patient or any other health professionals with whom the information is shared for medical purposes.
In October, the Pennsylvania Medical Society passed a resolution asking for similar reassurance from the state legislature. It also voted to urge the federal Environmental Protection Agency to immediately release the interim results of its study into the impact of fracking on health and the environment.
More guidance on how the disclosure rule would be implemented was expected when the Department of Environmental Protection released a draft of its new oil and gas regulations in mid-December. But health care access to frack fluid data was not addressed. DEP spokesman Eric Shirk said it doesn't fall within the agency's purview.
Will another state department take it up?
"Actually no, we do not believe there is any need for further clarification or regulations," said Mr. Henderson, the governor's energy executive.
He noted that Eli Avila, who was then secretary of the Pennsylvania Department of Health, wrote a letter to the medical society reassuring about the law's reach in April 2012. Mr. Avila resigned six months later.
"The claims put forth by a few physicians have been disappointing and are inaccurate -- as this is a law they ought to be celebrating, not attacking," Mr. Henderson said. "If [the medical society] believes some level of further clarification is needed, we are more than happy to discuss the issue with them to better understand their issues."
In the time since Act 13 went into effect, Mr. Henderson said the government has never heard a complaint about a health professional not being able to use such information "as they see fit to care for their patient."
"In other words, there's no apparent problem," he said.
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