Fracking Concerns Won't Kill PA Gag Rule
The court document
31 October 2013
Courthouse News Service - A Pennsylvania doctor cannot fight a
"medical gag rule" that he says forces physicians to keep the public
ignorant of the health dangers of hydrofracking, a federal judge
In a July 2012 complaint, nephrologist Alfonso Rodriguez had
taken aim at Act 13 of 2012, an amendment of the Oil and Gas Act
signed on Feb. 14.
Rodriguez, who specializes in renal diseases, hypertension and
advanced diabetes in Dallas, Pa., said the law prevents doctors from
telling patients or the public about the health dangers of hydraulic
More commonly known as "fracking,"
the practice involves using toxic fluids to release natural gas by
power-drilling through underground shale rock.
The nephrologist "has recently treated patients
directly exposed to high-volume hydraulic fracturing fluid as the
result of well blowouts," including one "with a complicated
diagnosis with low platelets, anemia, rash and acute renal failure
that required extensive hemodialysis and exposure to
chemotherapeutic agents," according to the complaint.
But Rodriguez allegedly risks violating the
American Medical Association's Principles of Medical Ethics, and
thus losing his medical license, if he informs patients about their
possible exposure to chemicals that the gas-drilling companies are
This is because
the state requires health care practitioners "to enter into, upon
request by gas drilling company or vendor, a vague confidentiality
agreement to maintain the specific identity and amount of any
chemicals claimed to be a trade secret by a gas drilling company
and/or its vendor as a condition precedent to receiving such
information deemed necessary to provide competent medical treatment
to plaintiff's patient," according to the complaint.
Rodriguez asserted violations of his right to
communicate with his patients, colleagues and the public under the
First and 14th Amendments, as well as the "unconstitutional
He named the state attorney
general, Linda Kelly; its former secretary of environmental
protection, Michael Krancer; and the chairman of its Public Utility
Commission, Robert Powelson, as defendants.
In January, a federal judge approved Powelson's
stipulation of dismissal. Meanwhile two nonparties, the Physicians,
Scientists, and Engineers for Healthy Energy and the Physicians for
Social Responsibility, filed a brief in support of Rodriguez.
U.S. District Judge A. Richard Caputo
nevertheless dismissed Rodriguez's suit last week after deeming the
alleged injury "too conjectural" for Article III standing.
"Although plaintiff alleges that he requires the
kind of information contemplated under the act for the treatment of
his patients, he does not allege that he has been in a situation
where he needed or attempted to obtain such information, despite the
fact that he alleges that he has treated patients injured by
hydraulic fracturing fluid in the past," Caputo wrote.
"Similarly, plaintiff does not
allege that he has been in a position where he was required to agree
to any sort of confidentiality agreement under the act."
The legal fees Rodriguez allegedly paid to notify
his patients of the act's impact were "merely a prophylactic measure
to ease his fears of potential future harm," the ruling states.
"Since plaintiff has not yet obtained any
information under the act, he should be able to maintain an
appropriate relationship with his patients under the Ethics Code,"
"Furthermore, he has not sufficiently alleged that he will need to
acquire such information because he asserts that he has already
treated patients exposed to fracturing fluid without it.
Therefore, the notice he
drafted to his patients was not a requirement of plaintiff's
adherence to the act; it was a voluntary exercise of caution.
As defendants assert, the act
did not require plaintiff to 'do anything by way of notice to the
public,' and thus, 'his actions were entirely voluntary.'"
The battle against the dangers of fracking in
Pennsylvania continues, however, as the federal government recently
sued Exxon subsidiary XTO Energy this past July, claiming its fracking has polluted public drinking waters with toxic chemicals.
By ROSE BOUBOUSHIAN
Used with permission under