Pennsylvania permits medical professionals to obtain the chemical composition of fracking fluids used by oil and gas companies if the information is necessary for the treatment or diagnosis of a patient, the patient may have been exposed to a hazardous chemical, and the information may assist in the patient’s treatment. Before receiving the information, however, the doctor must sign a confidentiality agreement. The constitutionality of this statutory scheme is currently before the United States Court of Appeals for the Third Circuit.
In 2012, Dr. Alfonso Rodriguez sued the Attorney General of Pennsylvania and the Pennsylvania Department of Environmental Protection to challenge the constitutionality of those provisions. He argued that the statutory scheme violated his constitutional rights under the First and Fourteenth Amendments. Dr. Rodriguez’s suit was dismissed in 2013 for lack of standing. He later amended his complaint, but it was again dismissed for lack of standing. He subsequently appealed to the Third Circuit.
In its response to Dr. Rodriguez’s brief on appeal, the Attorney General argued that Dr. Rodriguez still lacked standing to bring the suit and failed to state a claim upon which relief may be granted.
The Attorney General highlighted that even if the Pennsylvania provisions at issue were declared unconstitutional, Dr. Rodriguez would have no means of compelling oil and gas companies to disclose the desired information. Moreover, according to the Attorney General, Dr. Rodriguez failed to demonstrate that his ability to treat patients was hampered in any way. To the contrary, the challenged provisions actually assisted Dr. Rodriguez’s ability to treat patients.
In addition, the Attorney General noted that the statutory scheme reflected a careful balance struck by the state legislature between the intellectual property of oil and gas companies and the health and safety needs of those patients potentially exposed to chemicals.
Indeed, the Attorney General argued that there were a number of similar federal laws. In the Attorney General’s view, Dr. Rodriguez’s primary motivation in bringing this appeal was to gather additional information for his political beliefs, not securing information for the treatment of his patients.
Read the Attorney General’s brief.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
