Doctor says in suit that oil law violates free speech
by Gayathri Vaidyanathan, E&E reporter, EnergyWire, August 1, 2012
A Pennsylvania physician who says he routinely treats workers exposed to chemicals used in hydraulic fracturing sued the state last week over a controversial law that, on paper, limits information sharing between doctors and patients.
A portion of Act 13, a wide-reaching oil and gas law adopted by the state five months ago, requires operators to disclose the identity and amount of proprietary chemicals used in fracking to doctors in case of an emergency. But in return, doctors are required to sign a confidentiality form that could stop them from sharing information with patients or other doctors.
A prior lawsuit on the issue filed by Mehernosh Khan, a physician from Allegheny County, alleged the so-called gag order would affect doctors' ability to treat patients. A Pennsylvania court declined to take up the suit last week because Khan has not been affected in any demonstrable way by the law (EnergyWire, July 27). He has not had to deal with a patient exposed to frack fluid.
But Alfonso Rodriguez, a doctor in Luzerne County who treats kidney ailments, has been directly affected by Act 13, said his attorney Paul Rossi. Rodriguez recently treated an oil and gas worker who was exposed to a chemical-laden fluid after a gas well blew out. The patient had low platelets in his blood, anemia, rash, and acute renal failure that required extensive treatment of the kidneys by dialysis and with drugs, the lawsuit states.
Rodriguez has also had to draft out legal notices to his patients informing them that he may not be able to share all relevant knowledge during treatment because of Act 13, Rossi said.
Rodriguez's suit alleges Act 13 violates his First Amendment right to free speech. The only allowed restrictions onspeech are ones tailored narrowly to advance a compelling governmental interest, Rossi said. Act 13 does not fall in that catagory, he said.
The lawsuit comes even as the Pennsylvania Medical Society said it had "moved on" from its concerns about the gag order after the state's Department of Health sent the society a letter allaying its fears. The letter stated that physicians will be allowed to share any proprietary information "with the patient, with other physicians, and providers including specialists assisting and involved with the care of the patient."
But attorney John Smith, who represented Khan in the earlier lawsuit, said the Health Department's interpretation of the law is irrelevant, legally speaking.
"What they [the health department] say has no bearing on what the law is," said Smith. "It's great they believe it won't be harmful to the doctors, but in practicality, nobody is bound by that.
"So if the drillers decide to say, 'We're not going to give you that information unless you sign this, and you are not allowed to tell anybody,' the mere fact that the department said that's not what it [the law] means has absolutely no bearing on the issue."
The state has also said it will not be promulgating any rules regulating doctors based on Act 13, but Rossi said that in that case, the government should formally restrict the relevant parts of the act.
"They want this cloud of uncertainty to hang over everybody's head," said Rossi. "Under the First Amendment, you can't do that."
A Heath Department spokeswoman said in an email that the department is confident that "Act 13 provides health care professionals the tools they need to properly care for their patients, but will not comment further, as this matter is currently in litigation."
The other option to eliminate the gag order would be through legislation, and state Rep. Matthew Bradford (D) introduced a bill to the effect in May as part of the Marcellus Compact, a six-bill package that would alter some parts ofAct 13. But in a Republican-dominated Legislature, it is unlikely the bill will go very far.
Smith said he may ask the Supreme Court, which is considering an appeal by the state on other parts of Act 13, to re-examine whether his client, Khan, has standing to challenge the gag order.
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