Doctors fight “gag orders” over fracking chemicals, A physician’s lawsuit over a Pennsylvania statute concerning chemicals used in natural gas drilling is the latest battle involving industrial disclosure laws by Alicia Gallegos, August 27, 2012, American Medical News
When several unrelated patients visited McMurray, Pa.-based plastic surgeon Amy Paré, MD, she initially was unsure what to make of the bleeding, oozing legions covering their faces. The wounds were not cancerous, but the inflammation was severe and becoming worse. Dr. Paré’s suspicions grew when she learned that the patients lived near the same natural gas drilling site. Tests later found that the patients had phenol and hippuric acid in their urine, two contact irritants rarely found in humans. The patients improved after they stopped drinking water from their underground wells. “Knowing what chemicals they had been exposed to would have sped up the process” of treating the patients, said Dr. Paré, who specializes in treating skin conditions. But at the time, no official route existed for doctors to learn what chemicals patients may have been exposed to near drilling sites, information that remains protected as trade secrets unless lawmakers dictate otherwise. Under a new Pennsylvania law, natural gas companies must tell physicians the substances patients might have come into contact with. But doctors must sign confidentiality agreements promising they will use the information only for those patients’ treatment. More than a dozen states require firms to disclose chemicals used in fracking because of health concerns. Some doctors say the agreements amount to gag orders that interfere with their ability to treat patients and to share information freely with colleagues and medical researchers. The conflict has led to a legal challenge by Pennsylvania nephrologist Alfonso Rodriguez, MD, against the Pennsylvania Dept. of Environmental Protection. He claims that the law’s doctor-contract provision is vague and violates physicians’ First Amendment rights. The issue is not limited to Pennsylvania. Across the nation, doctors are being drawn into the controversy over induced hydraulic fracturing, more commonly called fracking. … Some doctors think the confidentiality clauses put them in a tough spot. “Once we sign the disclosure, who can we tell?” asked Mehernosh Khan, MD, a family physician in Monroeville, Pa. Dr. Khan is a plaintiff in a separate lawsuit against the state over local governments’ ability to regulate fracking zoning. “How do you refer [patients] and treat them if you can’t share the information?” The Pennsylvania law’s health professional disclosure portion, modeled after a Colorado law, provides doctors with necessary chemical information never before required, said Patrick Henderson, energy executive for Pennsylvania Gov. Tom Corbett’s office. Silencing physicians “was never the intent,” he said. “We think it does the exact opposite.”
But Dr. Rodriguez, the physician leading the most recent lawsuit and the president of the Gas Drilling Awareness Coalition in northern Pennsylvania, said the requirement takes advantage of physicians’ ethical obligations. The plaintiff, who practices in Dallas, Pa., has treated patients directly exposed to hydraulic fracturing fluid. One patient had low platelet levels, anemia, a rash and acute renal failure that required dialysis and chemotherapeutic agents, said Dr. Rodriguez’s suit, filed July 27 in U.S. District Court in Scranton, Pa. Doctors are ethically required to secure information necessary to provide competent treatment to patients, he said, and the law forces physicians to waive their First Amendment rights to fulfill this duty. “In an emergency situation, you don’t have time to litigate about [what] is confidential,” said Paul Rossi, Dr. Rodriguez’s attorney. “The law does not specify how broadly the confidentiality agreement goes.”
But assurances from state regulators are not enough to protect doctors in court, said Barry Furrow, director of the Health Law Program at Drexel University Earle Mack School of Law in Philadelphia. He wants the law changed to reflect such clarifications. “Physicians get very nervous about these things, because they’re worried about being sued,” Furrow said. “It doesn’t give me any comfort unless you put it in” the statute. Ohio physicians expressed similar concerns when faced with their state’s hydraulic fracturing disclosure law, first enacted in June. The Ohio State Medical Assn. worried that the trade secrets language would keep physicians from complying with public health reporting laws, said Tim Maglione, the group’s senior director of government relations. So Ohio physicians went to the Legislature and received a clarifying amendment to the law, which goes into effect in September. The Texas Medical Assn. supported a state law with drilling disclosure language that follows the Occupational Safety & Health Administration’s regulations for disclosure of chemicals to doctors. If a treating physician demonstrates that a medical emergency affects a worker and that the identity of a chemical is necessary to determine the patient’s treatment, the manufacturer immediately must disclose it to the physician, OSHA rules say. The manufacturer later may require a written statement of need and a confidentiality agreement. But applying an OSHA policy to potential environmental medical risks from fracking is dangerous, said Bernard D. Goldstein, MD, a professor in the Dept. of Environmental and Occupational Health at the University of Pittsburgh’s Graduate School of Public Health. “That’s a worker issue; this is a public health issue,” he said. “If you suspect a health problem in your community, you’re supposed to report it.”
The Medical Society of the State of New York has asked that the practice not be permitted until a health assessment can be authorized and completed, said Patricia Clancy, the society’s vice president for public health and education. “Our physicians are very concerned about the chemicals that are going to be used in the ground and its potential impact on ground water,” she said. “From our perspective, physicians feel very strongly that they need to have a voice.”
How tough are state chemical disclosure rules?
Thirteen states have approved rules requiring chemical identity disclosures for companies and operators that practice induced hydraulic fracturing, some of which address providing information on trade secrets to health care professionals and emergency workers. Fracking disclosure proposals in four states are pending.
Arkansas: Companies must disclose information to health care professionals upon request. The rules do not specify if doctors are required to sign confidentiality agreements.
Colorado: Health professionals may have access to information during health emergencies, but they must sign confidentiality agreements after the emergency has passed. Nonemergency access requires a statement of need and a confidentiality agreement.
Indiana: The rules do not specify whether health professionals have access to information during emergencies, but state regulators can adopt further rules if necessary.
Louisiana: The rules do not specify procedures for health professionals accessing information, but companies cannot withhold information that state or federal law requires health professionals to receive.
Michigan: The rules do not specify whether health professionals can access information.
Montana: Health professionals must request information in writing and may be subject to confidentiality agreements. Emergency access requires no written request, but companies can ask for confidentiality agreements after the emergency has passed.
New Mexico: The rules do not specify whether health professionals can access information.
North Dakota: State regulators are authorized to release information to health professionals if regulators deem it necessary to protect public health.
Ohio: Health professionals can access information but must keep it confidential for purposes not related to patient treatment.
Oklahoma: The rules do not specify whether health professionals can access information.
Pennsylvania: Health professionals can access information during emergencies, but they may be required to sign confidentiality agreements after the emergency has passed.
Texas: Information cannot be withheld from health professionals during emergencies.
Wyoming: Health professionals can access information when needed. [Emphasis added]
[Refer also to: Confidentiality Agreements, The Problem: Confidentiality agreements in lawsuit settlements can be harmful, even deadly, to the public ]