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In the recently passed Marcellus Shale "fracking" bill, known as "Act 13″ to the general public and as "Christmas Morning" to the natural gas industry, drillers do not have to reveal to the public what is in the fracking fluid they are pumping into the ground.
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When you go to a doctor, there are times your malady is obvious. Elephantitis, or a goiter shaped like guitar come to mind. However, other times the cause of your symptoms is more elusive and mysterious. For example, if you have been in contact with neuro-toxins, or small doses of deadly poisons, like Arsenic or Chicken McNuggets, the doctor may need more information on what you've been exposed to in order to determine what ails you.

In the recently passed Marcellus Shale "fracking" bill, known as "Act 13″ to the general public and as "Christmas Morning" to the natural gas industry, drillers do not have to reveal to the public what is in the fracking fluid they are pumping into the ground. According to some articles (such as this article), these chemicals include dozens of carcinogens and otherwise "toxic pollutants." And I don't think they mean the good kind of toxic.

There was a provision in Act 13 that created an exception to this general "Nothing-To-See-Here" rule of non-disclosure. If a doctor is treating a patient and suspects exposure to a toxic fracking chemical, that doctor may ask the drilling company to reveal to him what was in the fracking fluid. I know what you're thinking: the drilling company may then have the doctor shot, in keeping with the tenor of the rest of the bill.

But no! In an act of enlightenment, which makes the Magna Carta look like it was written by Stalin, the bill requires the company to turn the information over to the doctor. But ONLY... wait for it... if the doctor signs a "confidentiality agreement," either prior to receiving the contents of the fluid in the event of a non-emergency, or shortly after receiving it in an emergency situation.

Allow me to digress briefly to discuss confidentiality agreements. The theory of a "confidentiality" agreement is that the signer agrees to keep information "confidential." See, this is the sort of legal acumen that once led my contracts professor to call my legal mind "hollow as a tea-kettle" and "chimp-like." If I can tell someone the information, particularly someone who has not also signed a confidentiality agreement, then the information is less confidential, in the sense that a live goat that has been Bar-B-Qued is less live.

Since the bill, as written, REQUIRES doctors to agree to confidentiality, then it would logically prohibit them from revealing the information, even to the patients they are treating, other doctors involved in the treatment, and even the insurance dude who has to approve reimbursement.

If doctors could spill the beans (although I'm told there are no actual beans in fracking fluid) to all of these people, none of whom have signed a confidentiality agreement with any drilling company, then who exactly are they supposed to keep the information confidential from? Perhaps random hermits who eat bugs, and know all the secrets of life, except the ones about not eating bugs.

All of this puts physicians in a very precarious position. The statute gives physicians no protection to disclose information to anybody. It gives them no guidance, exposes them to lots of potential legal liability, and puts them at the mercy of a confidentiality agreement drafted by the drilling company. But on the other hand, the spelling in the bill is near perfect, and it says nothing about the Israeli-Palestinian conflict that can't be walked back later.

Thus, it was odd yesterday when the Pennsylvania Medical Society, the organization charged with protecting the interests of physicians, issued a statement in support of the legislation as written. In fact, there were several strange things about the statement.

First, why? (Always start with existential questions). It's very strange for the Medical Society to issue a statement in support of legislation AFTER it has passed. It's reminiscent of my recent marriage proposal to Kate Middleton (she says she's thinking about it). Lobbying groups are usually focused on what's to come. This is why the Tavern Association has sent very few e-mails about prohibition recently.

Second, the text of the statement is so fawning towards the Corbett administration as to raise real suspicions as to who actually wrote it. The letter "applauds" the administration for "demonstrating their concern for public safety" and compliments them on their "responsiveness" and specifically raves about the Governor's "searing bedroom eyes." (OK, I made up that last part, but it wouldn't be out of place in this statement). Again, usually letters this obsequious turn out to be written by the person being praised (see, for example, "The Amazing Abs of Senator Leach, Volume 7″).

I suppose it is possible that the folks at the Med Society woke up yesterday morning, opened the window, heard a scream, remembered they needed to put pants on, and decided it was the perfect day to write a worship prayer to Governor Corbett for no apparent reason. But then again, I believe in evolution, so you see how divorced from reality I am.

I would also note that the President of the Pennsylvania Medical Society (a.k.a the Tom Corbett Fan Club), the same group that wrote the statement about how wonderful the Act 13 is for physicians, said the following in a newspaper article just last week:

"If there's this confidentiality agreement that you need to sign off on, how open are you to share that information whether directly with the patient, or the state, or for research?" said Dr. Marilyn J. Heine, President of the PA Medical Society. "There's some ambiguity. The law isn't identifying what the limitations are."

It seems that Marilyn has had an abrupt change of heart. I wonder if she practices medicine that way. "You have leprosy, no, I mean a toothache, actually your hair's on fire. You're fine. Pay the receptionist."

Was there any pressure there? We report, you decide. However, it does seem clear that this is odd praise by a pro-physician organization for a bill which imposes new and unprecedented legal restrictions on physicians, as Dr. Heine herself acknowledged.

Third, the statement says, in effect, it will all be okay because Health Secretary Avila has "clarified" that physicians may in fact share information with patients and others necessary to provide treatment. That's awesome!

Unfortunately, that's not what the law actually says. And given the choice between following the law as written, or Secretary Avila's statement to the PA Med Society, I fear the courts will follow the law. Although, it is possible that the US Supreme Court listened to Secretary Avila in deciding Bush v. Gore, in that no other explanation makes sense.

The fact is that the bill I've introduced protecting physicians and patients reflects the law that the Corbett administration claims they want to see. So rather than wishing Act 13 says something it does not, why not just support my clarifying language?

A cynic would say that perhaps there is another agenda. That perhaps the ambiguity of Act 13, which puts physicians at risk, will prevent them from disclosing information without inviting the political blow-back of actually putting such a prohibition in the legislation. But I try not to be a cynic. I try to see the good in everyone (except Liz Cheney, I'm not insane). So hopefully the sensitive, caring, humanitarian governor referred to in the Med Society's statement will prove to be worth every word of what he wrote about himself in that statement. Stay tuned...

Sleuthfully Yours,


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