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A new law in Pennsylvania has doctors nervous.
The law grants physicians access to information about trade-secret chemicals used in natural gas drilling. Doctors say they need to know what’s in those formulas in order to treat patients who may have been exposed to the chemicals.
But the new law also says that doctors can’t tell anyone else — not even other doctors — what’s in those formulas. It’s being called the “doctor gag rule.”
‘I Don’t Know If It’s Due To Exposure’
Plastic surgeon Amy Pare practices in suburban Pittsburgh where she does reconstructive surgeries and deals with a lot of skin issues. She tells me about one case, a family who brought in a boy with strange skin lesions.
“Their son is quite ill — has had lethargy, nosebleeds,” Pare says. “He’s had liver damage. I don’t know if it’s due to exposure.”
The family lived near natural gas drilling activity, and there was some concern that the boy may have been exposed to some of the chemicals being used. Producing natural gas is a pretty industrial process and gives off a lot of fumes. It uses a lot of chemicals to open wells to get the gas flowing.
Pare’s first step was to figure out what chemicals the drillers were using. But that information isn’t easy to get. In this case, Pare says, the patient’s family had a good lawyer who helped them find out what kind of chemicals the gas company was using.
“If I don’t know what [patients] have been exposed to, how do I find the antidote? We’re definitely not clairvoyant,” she says.
Revealing Trade Secrets … Sort Of
Pennsylvania’s new law was supposed to make things easier for doctors and patients. The law, which is similar to those in Texas and Colorado, requires drillers to list the chemicals used to produce oil or gas on a public website that doctors like Pare can access.
But the website doesn’t list all the chemicals used; it leaves off those considered to be trade secrets. These are ingredients that a company says it has to keep secret in order to maintain an edge over its competitors. Before the law, doctors couldn’t find out what those trade-secret chemicals were. Now, they can.
But there’s a catch: Doctors can get the chemical names only if they sign a confidentiality agreement and agree not to share that information. That’s a move that makes doctors like Pare nervous.
“As I understand it, it’s legally binding, so if 20 years from now I hiccup that someone was exposed to zippity doo dah, I’m legally liable for that,” she says.
It’s not even clear whether the doctor can share the trade-secret ingredient with the patient or the patient’s neighbors, co-workers or primary care doctor.
‘A Mountain Out Of A Molehill’?
Ever since the law was signed earlier this year, doctors have been asking lots of questions. But authors of the law say doctors are overreacting.
“It’s not to discredit those who are sincerely looking out for the health of others, but I think a mountain has been made out of a molehill,” says Drew Crompton, a legislative staffer and one of the primary drafters of the law. “It’s important to have disclosure, and that’s what we tried to do. And I think this is coming from people who oppose the industry.”
The law was modeled after a Colorado initiative, which was modeled after a federal Occupational Safety and Health Administration regulation. At a recent talk for local officials, Michael Krancer, the head of Pennsylvania’s Department of Environmental Protection, defended what some are calling the “doctor gag rule.”
“The ‘gag order on physicians’ — nothing could be further from the truth or more nonsensical than this,” Krancer said. “The provisions of Act 13 are exactly like what we have already and had had in the federal system since the ’70s. There’s nothing new there.”
But there are some differences. The federal law was designed for workers, while the new state laws cover everyone. And critics say some important parts of the federal law are missing in these state laws.
Balancing Trade Secrets And Public Health
Barry Furrow, the director of the health law program at Drexel University in Philadelphia, says writers of Pennsylvania’s law made it vague.
“They’ve lacked definition. They haven’t defined the boundaries of disclosure, so doctors are properly nervous,” Furrow says. “What can they disclose to the state? What can they disclose to the community? It’s just the patient and the doctor only. And this is a public health problem with toxic chemicals. It’s much larger than one patient. It’s going to be a community.”
Pennsylvania’s Department of Public Health recently issued a statement assuring doctors that they would be able to share information with their patients and public health officials. But Furrow wonders how well that statement would hold up in court.
“If Halliburton decides to sue a doctor, that’s quite terrifying,” he says. “You have a very large, probably rather aggressive company, given its history.”
Howard Frumkin, dean of the School of Public Health at the University of Washington, is an expert in treating workers who have been exposed to chemicals on the job.
“In more than two decades of practicing occupational medicine, I’ll tell you how often I was able to make the right diagnosis and plan the right treatment when I didn’t know what the patients were exposed to — zero times,” he says.
Frumkin says companies have a legitimate right to protect trade secrets. But he says there is also a legitimate public need to know about what they may have been exposed to.
“You need to balance off those two rights,” he says. “In this case, it seems the law tried to make the balance but didn’t quite get it right. There are very chilling statements there that would inhibit physicians and public health officials from getting information that they need.”
Some Pennsylvania lawmakers are responding to doctors’ confusion. A bill has been introduced to remove the need for doctors to agree to a confidentiality agreement.
This story comes from StateImpact, a collaboration between NPR and member stations, exploring how state issues affect people’s lives.