SCRANTON, Pa. (CN) - Kowtowing to natural gas-drilling companies, Pennsylvania enacted an unconstitutional "Medical Gag Rule" that prevents doctors from speaking to patients or the public about the health dangers of fracking, under the guise that such speech would violate "trade secrets," a doctor claims in Federal Court.
Dr. Alfonso Rodriguez sued the Pennsylvania attorney general, its secretary of environmental protection and the chairman of its Public Utility Commission.
Rodriguez claims Act 13 of 2012, signed into law on Feb. 14, forces medical professionals into "a vague confidentiality agreement," and that obeying the law would force him "to violate ethical rules imposed upon him by the medical profession that could cost (him) his license to practice medicine within the Commonwealth."
Rodriguez says: "The Medical Gag Rule imposes a content-based restriction on the speech of health care practitioners receiving information from gas drilling companies on chemicals that a patient may have been exposed by requiring the health care practitioner 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.
"The First Amendment does not permit such gross and content-based intrusion on speech and, accordingly, the court should declare the Medical Gag Rule unconstitutional and enjoin enforcement of the requirement that health care practitioners enter into confidentiality agreements as a condition precedent to receiving information needed to treat patients in emergency situations."
Rodriguez is a nephrologist, specializing in renal diseases, hypertension and advanced diabetes, in Dallas, Pa. He says his kidney patients need a pure source of water to remove toxins from their blood, and he receives daily alerts from the FDA, the Centers for Disease Control and local water companies on the status of the water system.
Rodriguez says he "has recently treated patients directly exposed to high-volume hydraulic fracturing fluid as the result of well blowouts, including a patient exposed to hydraulic fracturing fluid who was admitted to the hospital with a complicated diagnosis with low platelets, anemia, rash and acute renal failure that required extensive hemodialysis and exposure to chemotherapeutic agents."
Rodriguez cites Section 3222.1 (b) (11) of the Medical Gag Rule, which states: "'If a health professional determines that a medical emergency exists and specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider or operator shall immediately disclose the information to the health professional upon a verbal acknowledgment by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential. The vendor, service provider or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit, in conformance with regulations promulgated under this chapter.'
"To date, no regulations have been promulgated under the Medical Gag Rule."
Rodriguez says he treats patients in "a county that is host to significant high-volume hydraulic fracturing gas drilling and toxic open-air wastewater impoundment ponds." He says his patients have been exposed to toxic fluids and environmental contamination caused by gas and oil operations in his community, that Medical Gag Rule requires him to violate medical ethics, which puts his license at risk.
"On its face, the Medical Gag Rule is an unconstitutionally overbroad content-based regulation of speech in that it imposes on plaintiff the requirement to enter into a confidentiality agreement as a condition precedent to receive information needed for the ethical and competent treatment of a patient in an emergency situation to prohibit communications which are not narrowly tailored to advance a compelling governmental interest," the complaint states.
He adds: "The practice of medicine requires a free and open exchange of questions, answers and information between a healthcare practitioner and: (1) the patient; (2) individuals and corporations retaining critical, time-sensitive information needed to properly diagnose and treat a patient's emergency condition; (2) the medical community researchers and insurance companies to provide the patients and future patients more efficient diagnosis of future critical care situations; and (4) with respect to known environmental dangers, the general public."
Rodriguez says he is "ethically required to secure any information necessary to provide competent treatment to his patients. In order to secure needed information from gas drillers and/or their agents and/or vendors in emergency situations, plaintiff is required by the Medical Gag Rule, upon request, to waive rights secured to him."
Fracking consists of injecting a slurry of chemicals into underground natural gas deposits, to force the gas into smaller pockets, to be brought to the surface. It is a controversial practice and numerous lawsuits have been filed claiming that the high-powered injections can and have polluted aquifers. One plaintiff claimed that fracking caused her well water to burn.
"In general, hydraulic fracturing fluid contains a mixture of chemicals such as benzene, toluene, ethylbenzene, xylene, microbiocides, glycols, glycol ethers, and petroleum products, many of which are known carcinogens," Rodriguez says in his complaint.
"The general 'recipe' of hydraulic fracturing fluid is common knowledge within the gas drilling industry.
"The gas drilling industry, on a regular and routine basis, meet to discuss and trade information and field experience on the best formulations of hydraulic fracturing fluid for various geologic formations.
"Information on the exact nature and chemical make-up of hydraulic fluid is kept 'secret' by the industry because the gas and drilling industry simply does not want the general public to become aware of the toxic fluids being pumped into the ground in order to extract natural gas."
While "millions of gallons of a 'secret' brew of toxic fluids are pumped into sub-surface rock strata in order to break underground shale rock apart," the "recipe" used in high-volume hydraulic fracturing may be unique to each drilling site, Rodriguez says. But he says the "exact 'recipe' used at any specific gas drilling site is not a trade secret, but rather, an ad hoc concoction developed by the operators based on trial and error as well as general experience common to the gas drilling industry."
He adds that the toxic fluids often flow back to the surface, to be stored in wastewater impoundment ponds, and that "storing waste hydraulic fracturing fluid in open air impoundment ponds causes the toxic chemicals and other waste products to become more concentrated as water evaporates into the air."
Rodriguez says the Medical Gag Rule threatens him with a Catch-22: civil prosecution for violating a confidentiality agreement, or professional discipline for failing to violate the gag rule to engage in needed communications with his patients.
"The Commonwealth's police power, exercised and enforced by defendants, is broad enough to compel gas drillers and their agents and vendors to provide information to plaintiff on the 'specific identity and amount of any chemicals' used by them and necessary for plaintiff to provide competent medical care in an emergency situation," the complaint states.
Gov. Thomas Corbett signed the bill, aka House Bill 1050, on Valentine's Day.
Rodriguez seeks declaratory judgment that the law violates the First and 14th Amendments, and wants the state permanently enjoined from "requiring plaintiff to sign any confidentiality agreement as a condition to the Commonwealth's exercise of its police power to command the disclosure of the 'specific identity and amount of any chemicals' used in hydraulic fracturing to plaintiff so that plaintiff can properly provide emergency medical treatment to plaintiff's patients under the Medical Gag Rule."
Rodriquez also seeks damages, attorneys' fees and costs. He is represented by Paul Rossi of Kennett Square, Pa.