On December 19, 2013, the Pennsylvania Supreme Court, Middle Division, issued an opinion striking down major portions of Act 13, P.L. ___, 58 Pa. C.S. §§2301-3504 (a substantial re-write of the Commonwealth’s Oil and Gas Act) as unconstitutional.

As part of that order, the Court gave new life to the claim of Mehernosh Khan, M.D. concerning the restrictions placed on doctors in obtaining and sharing information about the identification of hydraulic fracturing chemicals when treating patients. The lower Commonwealth Court determined that Dr. Khan lacked standing to sue because the interest he asserted was remote. The Supreme Court reversed and remanded the case for a merits decision.  

Dr. Khan who treats patients in locations where drilling operations take place complained of Section 3222.1(b)(10) which requires that companies engaged in hydraulic fracturing disclose information regarding chemicals used in the process to medical providers contingent on the medical providers executing “a confidentiality agreement and provid[ing] a written statement of need for the information indicating all of the following: (1) the information is needed for the purpose of diagnosis or treatment of an individual; (2) the individual being diagnosed or treated may have been exposed to a hazardous chemical; and (3) knowledge of information will assist in the diagnosis or treatment of an individual.” If emergency treatment is needed, the companies must disclose the information to the doctor upon the doctor’s “verbal acknowledgement” that the “information may not be used for purposes other than the health needs asserted” and that the information will remain confidential. The companies may ask for a signed confidentiality agreement as soon as circumstances permit.

According to Dr. Khan, “the restrictions on sharing fracking chemicals’ composition places medical professionals in a position to choose between abiding by the mandatory provisions of Act 13 and adhering to their ethical and legal duties to report findings in medical records and to make these records available to patients and other medical professionals.” Sharing diagnostic test results and a patient’s history of exposure (dose and duration of exposure) are needed to competently treat patients. The Supreme Court recognized the “untenable and objectionable position in which Act 13 places” Dr. Khan and held that his interest in the litigation regarding the constitutionality of Section 3222.1(b) “is neither remote nor speculative.” 

This decision is in contrast to a ruling dismissing a similar federal lawsuit based on this section of Act 13. In October 2013, the federal court decided that the doctor had no standing because he “has not alleged that he has been in a position where he was required to agree to any sort of confidentiality agreement under the act. Therefore…he has not yet…been prevented from engaging in any sort of communication as a result of the act.” For information on this decision, click here

The determination of whether section 3222.1(b) is constitutional will be closely watched by operators, drillers, and others involved in hydraulic fracturing activities because they consider fracking fluid formulas to be trade secrets requiring strict confidentiality – just as Coca-Cola and Dr. Pepper consider their formulas to be proprietary and necessary to protect business. 

For additional information on Robinson Township, et al v. Commonwealth of Pennsylvania, et al, Nos. 63, 64, 72 and 73 MAP 2012 (Supreme Court of Pennsylvania, Middle District, Dec. 19, 2013), appeal from the Order and Opinion of the Commonwealth Court at 284 MD 2012, dated July 26, 2012, 52 A.3d 463 (Pa. Cmwlth, 2012), please click here.