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July 2, 2014

Once Again, Act 13′s Medical Confidentiality Provision Withstands Judicial Attack

Despite a prior loss last Fall where his complaint was dismissed for lack of standing, Dr. Alfonso Rodriguez once again sought to challenge 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, which he terms the "Medical Gag Order." He did so by filing an Amended Complaint on January 31, 2014 which was promptly met by motions to dismiss by the Pennsylvania officials, including the head of the Pennsylvania Department of Environmental Protection, against who Rodriguez had lodged his claims.

The pertinent Act 13 provision provides,

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).

On the more recent round of motions 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. Agreeing with Defendant Abruzzo, the Court found that despite Rodriguez’s promise of additional facts that he could plead in support of his standing, "no such facts have been alleged." Without such additional facts, the Court confirmed its prior decision that Rodriguez lacked standing (see more at Then, going one step further, the Court found that, even assuming that Rodriguez had satisfied the injury-in-fact requirement for standing, his claim would still fail due to a lack of standing because he cannot show that his alleged injury would be redressed by a favorable decision.

Although another win for Act 13, the Court again 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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