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Fracking Concerns Won’t Kill PA Gag Rule

(CN) - A Pennsylvania doctor cannot fight a "medical gag rule" that he says forces physicians to keep the public ignorant of the health dangers of hydrofracking, a federal judge ruled.

In a July 2012 complaint, nephrologist Alfonso Rodriguez had taken aim at Act 13 of 2012, an amendment of the Oil and Gas Act signed on Feb. 14.

Rodriguez, who specializes in renal diseases, hypertension and advanced diabetes in Dallas, Pa., said the law prevents doctors from telling patients or the public about the health dangers of hydraulic fracturing. More commonly known as "fracking," the practice involves using toxic fluids to release natural gas by power-drilling through underground shale rock.

The nephrologist "has recently treated patients directly exposed to high-volume hydraulic fracturing fluid as the result of well blowouts," including one "with a complicated diagnosis with low platelets, anemia, rash and acute renal failure that required extensive hemodialysis and exposure to chemotherapeutic agents," according to the complaint.

But Rodriguez allegedly risks violating the American Medical Association's Principles of Medical Ethics, and thus losing his medical license, if he informs patients about their possible exposure to chemicals that the gas-drilling companies are using.

This is because the state requires health care practitioners "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," according to the complaint.

Rodriguez asserted violations of his right to communicate with his patients, colleagues and the public under the First and 14th Amendments, as well as the "unconstitutional conditions doctrine." He named the state attorney general, Linda Kelly; its former secretary of environmental protection, Michael Krancer; and the chairman of its Public Utility Commission, Robert Powelson, as defendants.

In January, a federal judge approved Powelson's stipulation of dismissal. Meanwhile two nonparties, the Physicians, Scientists, and Engineers for Healthy Energy and the Physicians for Social Responsibility, filed a brief in support of Rodriguez.

U.S. District Judge A. Richard Caputo nevertheless dismissed Rodriguez's suit last week after deeming the alleged injury "too conjectural" for Article III standing.

"Although 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," Caputo wrote. "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."

The legal fees Rodriguez allegedly paid to notify his patients of the act's impact were "merely a prophylactic measure to ease his fears of potential future harm," the ruling states.

"Since plaintiff has not yet obtained any information under the act, he should be able to maintain an appropriate relationship with his patients under the Ethics Code," Caputo added. "Furthermore, he has not sufficiently alleged that he will need to acquire such information because he asserts that he has already treated patients exposed to fracturing fluid without it. Therefore, the notice he drafted to his patients was not a requirement of plaintiff's adherence to the act; it was a voluntary exercise of caution. As defendants assert, the act did not require plaintiff to 'do anything by way of notice to the public,' and thus, 'his actions were entirely voluntary.'"

The battle against the dangers of fracking in Pennsylvania continues, however, as the federal government recently sued Exxon subsidiary XTO Energy this past July, claiming its fracking has polluted public drinking waters with toxic chemicals.

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