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October 28, 2013

Act 13's Medical Confidentiality Provision Withstands Judicial Attack

A federal judge has struck a Pennsylvania physician’s challenge to Act 13’s requirement that doctors agree to confidentiality before disclosure of the identify and amount of constituents in hydraulic fracturing fluid when treating workers who have been exposed on the job.

Act 13 provides in relevant part,

If a health professional determines that a medical emergency exists and the 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.

58 Pa. C.S. § 3222.1(b)(11) (2012).

Dr. Alfonso Rodriguez challenged this provision, which he called the “Medical Gag Order,” in federal court by lodging an action against various Pennsylvania officials, including the head of the Pennsylvania Department of Environmental Protection.  In his complaint, Rodriguez, a nephrologist, a physician specializing in the treatment of renal diseases, hypertension, and advanced diabetes, claimed that Act 13 violated his First and Fourteenth Amendment.

On a motion to dismiss filed by the State officials, U.S. District Court Judge A. Richard Caputo dismissed Rodriguez’s action, finding that he failed to possess the necessary standing to challenge Act 13’s provision.  The court found Rodriguez’s alleged injuries to be hypothetical.  According to the Court,

“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. 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. Therefore, to the extent that Plaintiff’s alleged injury-in-fact is an inability to exercise his First Amendment rights, he has not yet indicated that he has been prevented from engaging in any sort of communication as a result of the Act. Similarly, Plaintiff has failed to indicate that he has been forced to waive any of his fundamental constitutional rights. Thus, Plaintiff fails to satisfy the injury-in-fact requirement because his allegations of future injury are merely conjectural[.]”

Rodriguez has indicated that he will appeal to the Third Circuit.

Although a win for Act 13, the Court did not rule on the actual merits of Rodriguez’s challenge.  Thus, the case does not decide whether or not Act 13 is constitutional or not and defers that question for another day in another lawsuit.  In the meantime, Act 13’s confidentiality requirements for doctors who receive information regarding hydraulic fracturing fluids for emergency treatment remains intact.

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