Controversy Continues Over What Physicians Can Tell Their Patients About Fracking Chemicals

Under the law, if the chemicals used are alleged to be a trade secret, a physician can obtain the information by signing a non-disclosure agreement under § 3222.1(b)(10) which provides:

(10) A vendor, service company or operator shall identify the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information to any health professional who requests the information in writing if the health professional executes a confidentiality agreement and provides a written statement of need for the information indicating all of the following:

(i) The information is needed for the purpose of diagnosis or treatment
of an individual.
(ii) The individual being diagnosed or treated may have been exposed to a
hazardous chemical.
(iii) Knowledge of information will assist in the diagnosis or treatment of
an individual.

A physician can also obtain the information if a medical emergency exists under § 3222.1(b)

(11): (11) 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.

Neither of these provisions really describe what can be discussed with the patient. It is the physician who signs the confidentiality agreement, not the patient, so one wonders what the physician can really discuss.

People have come forward to speak on this debate. Pennsylvania House Speaker Sam Smith was recently quoted as saying that it is “outrageous” for doctors to suggest that the new law gags doctors from talking to their patients about chemicals used in the hydraulic fracturing process. He was quoted as saying “Doctors will be able to provide all of the information needed to discuss any patient ailment…” and that they state would not try to hinder doctors from treating their patients. Mr. Smith released his statement after The Associated Press reported that doctors were concerned about having to sign the confidentiality agreements.

On the other side, the president of the Pennsylvania Medical Society was noted to have said that that requiring the confidentiality agreements could have a chilling effect on research and doctors’ ability to diagnose and treat patients who have been exposed. The Pennsylvania Medical Society believes that the law is too vague and that doctors need explicit guidance on the limitations. Besides what to tell their patients, questions have arisen as to whether physicians can write a medical journal article about a case, inform colleagues about a case at a staff meeting, or discuss a case with public health researchers.

Perhaps more clarification is needed on what physicians can do with the information once they receive it, either through signing a non-disclosure agreement or through the law’s emergency exception provision.

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