Explainer: Could State Laws Make Doctors Withhold Information from Patients Sickened by Fracking?
Earlier this year, Pennsylvania Governor Tom Corbett signed a sweeping revision to the state’s oil and gas regulations intended to modernize oversight of surging shale gas drilling. Some doctors and medical groups were outraged by a provision of the law that imposed what they considered to be a gag order on physicians. The law gives doctors access to secret hydraulic fracturing formulas if they are treating patients who they believe have been exposed to the chemicals, but it also appears to prevent health care professionals from sharing that information with anyone -- even their patients. Could a state law really force doctors to withhold information from their patients or medical colleagues? And what would happen if they went ahead and shared it anyway?
Short answer: no one knows. The clause in the Pennsylvania law is based on similar legislation passed last year in Colorado. While both laws require energy companies to disclose the chemicals they use for fracking -- including biocides, lubricants, and gels that help the fluid fracture the rock and release oil or gas -- they allow companies to withhold from the public certain chemical identities that the companies consider trade secrets. In a nod to health concerns, the laws require energy companies to provide health professionals with trade secrets in times of medical need. But doctors must sign confidentiality agreements in order to gain access, and in Pennsylvania, the legislation doesn’t spell out what those confidentiality agreements should say.
After the Pennsylvania Medical Society raised concerns, state Health Secretary Eli Avila said doctors are free to share any information they learn from energy companies as needed, including with their patients. But that’s not what the law says, and legal experts say the health secretary’s assurance carries little weight in court.
"Doctors are in a bind because if they were to tell their patient, they could be accused of violating the confidentiality law. It’s that simple," said Jerry Silberman, a senior staff representative at the Pennsylvania Association of Staff Nurses and Allied Professionals. "The chilling effect of it is profound." His concerns were echoed by Adam Finkel, an expert on regulation at the University of Pennsylvania Law School and a former official with the federal Occupational Safety and Health Administration, who added that it’s unclear how disclosure to the patient would work even if it is allowed, as Avila said. Would the patient have to sign a confidentiality agreement as well? What about the patient’s family? "When the devil’s in the details but there are no details, given the reality of political power, you worry about who is going to really be in jeopardy when this thing goes through without being clear," Finkel said.
The Marcellus Shale Coalition, an industry group, declined to answer questions from OnEarth, as did the Pennsylvania Health Department. In May, Governor Corbett told a local radio station he wasn’t sure about the origins of the provision and indicated he would be open to amending it.
In reality, though, the situation that Pennsylvania doctors are concerned about -- in which an individual is exposed to specific chemicals used in oil and gas drilling -- doesn’t come up very often. Experts could point to only one case where doctors needed access to confidential information about fracking fluids to treat a patient but couldn’t get what they needed. In 2008, a nurse in Colorado was exposed to a fracking chemical that had been spilled on a worker. The nurse became severely ill, but doctors were reportedly unable to immediately obtain information on the ingredients of the fluid.
What’s more common, as health concerns related the nationwide oil and gas boom grow, is that a growing number of people suspect their illnesses are related to fracking but they have no specific spills or incidents to point to.
"Every phase of the gas production activity, every single phase of that, is using multiple chemicals," said Carl Werntz, a physician in occupational and environmental medicine at West Virginia University’s School of Medicine. If someone who lived near drilling exhibited symptoms he or she thought might be associated with fracking, a physician would have to request all the chemicals used, Werntz said. "I don’t know what you’d make of it. If you just got a list of all the chemicals, it’s an almost indecipherable list. There’s too much on it."
What’s more, Werntz and others say, that list would not include the toxic, naturally occurring substances -- such as radium or barium -- that fracking can dislodge from rock deep underground, and it wouldn’t include chemicals used in other stages of drilling. The disclosure laws also don’t provide any way for public health officials concerned about the health impacts of fracking to learn more about the secret chemicals that energy companies are using. The legislation restricts disclosure to medical professionals treating patients with specific concerns about exposure.
Seven Pennsylvania municipalities have sued the state to overturn several sections of the broad drilling law, including the disclosure clause. State Sen. Daylin Leach has introduced a bill that would clarify that doctors can share confidential information with patients. It would also allow doctors to share information if doing so would further public health.
After the uproar in Pennsylvania spilled over the border to Ohio, which was considering its own similar provision, state legislators there added a vague clause saying doctors could make "any report required by law or professional ethical standards." Although the Ohio law requires doctors to otherwise keep information confidential, it does not mention anything about a written non-disclosure agreement. Colorado is drafting a standard non-disclosure agreement that would spell out under what circumstances the information can be shared, though it doesn’t address several key concerns that have been raised by public health advocates.