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Toxic Secrets: Pennsylvania’s Act 13 Prevents Public Health Research

May 1, 2012

“You wouldn’t be able to prevent anyone else from getting hurt.”

–Kevin Osterhoudt, MD, Children’s Hospital of Philadelphia, referring to Act 13

Public health prizes prevention. The whole concept of public health dates back to a time when captains of sailing ships found that if  they provided their sailors with fresh fruit, no one developed scurvy. When folks finally figured out that public water supplies were spreading disease, action followed quickly to save lives. But historically, there have also been times when government officials have aided and abetted public health crimes, as in the intentional spreading of smallpox to indigenous people in the U.S. by using smallpox-infected blankets, or the shocking U.S. Public Health Service study which used hundreds of African American men with syphilis as subjects, lying to them about the nature of the study for 40 years  and withholding penicillin from them even after its life-saving properties became known.

Decisions harmful to health and life are often made and defended with an air of banal composure, and the rationalizations constructed for these decisions can appear at first glance to be legitimate. But history shows that the real reasons life-saving procedures are not adopted usually have more to do with greed, apathy, professional status, ego, and  the institutionalization of the profit motive, all gathered up in an obscuring cloud of denial. Lest the rationales for the physician gag orders embedded in Pennsylvania’s Act 13, the state’s new gas drilling law, succeed in obscuring the actual impact of these gag orders, let’s take a quick look at denial in relation to public health historically.

The power of denial to cause enormous loss of life is illustrated by the issue of hand-washing. One physician, Ignaz Semmelweis, discovered that when he washed his hands before and after delivering babies, the mortality rate from childbed fever declined from the 10% to 35% rate to less than 1%. He carefully documented the benefits for women’s health and  repeatedly presented his data to the professional medical society of his time. The data was met with a tsunami of denial. Semmelweis was ultimately driven out of his mind by the experience of watching women die while his colleagues ignored his data and refused to perform the simple act of washing their hands between patients. He died in an insane asylum at the age of 47, although he became known as the “savior of mothers” for saving his own patients’ lives by washing his hands.

Enter corporate America, and the plot twists and turns in sometimes sinister, even deadly, directions. Tobacco provides a fine example of the behavior of multinational corporations  exerting power and control in multiple channels at once: dominating the airwaves with advertising and product placement; creating “astroturf” (fake “grassroots organizations” that appeared to just love tobacco); actively suppressing scientific studies and withholding data which confirmed that smoking tobacco caused lung cancer; lying constantly for decades, in public, on commercials, in testimony before Congress, all the while being fully aware of the real science, and all the while fighting hard behind the scenes– often successfully — to prevent independent scientists and public health advocates from sitting on review panels loaded with the industry’s friends.

Shale Gas Gag: A new chapter opens in corporate suppression of information

With Act 13, the hotly contested gas drilling law that just went into effect in Pennsylvania in April, the shale gas fracking industry has a real dream of a law. The two sections of the law collectively referred to as the “physicians’ gag law” have garnered a great deal of attention, and rightly so. A debate is raging about whether Act 13 would allow a physician who has been forced to sign a confidentiality agreement – a gag order – promising to keep a particular corporation’s chemical use secret — to tell even the individual patient what chemicals caused her or his illness.

In a famous 2008 Colorado case, Cathy Behr, an emergency room nurse, lost consciousness and nearly died from multiple organ failure after being exposed to fracking fluids a worker had had splashed on him. Cathy’s physician was forced to sign a gag order in order to receive, eventually, the information about what exactly was in that fracking fluid. Because of that gag order, Cathy’s own treating physician was forced to withhold from her the information about the chemicals to which she had been exposed. Nearly dying from exposure to fracking chemicals is no picnic. But the ongoing secrecy salts those wounds and puts more than the affected individuals at risk.

Toxic Secrets and Public Health

Regardless of whether or not the individual patient may be told by their doctor what chemicals made them sick, Act 13’s confidentiality clause strikes at the heart of public health. According to George Washington University professor and pediatrician Dr. Jerome Paulson, physicians’ medical ethics — in particular their obligation to “work for the good of the public,” not just the individual patient — are violated by Act 13. What the fracking industry, its friends in elected office, and  some of its friends in the environmental movement (like Pennsylvania Environmental Council, which accepts funds from gas drillers) prefer to ignore is that Act 13 clearly prevents independent research about the public health impacts of fracking.

Kevin Osterhoudt, a physician at Children’s Hospital Of Philadelphia, told the Philadelphia Inquirer (4/13/12), “It looks as if this [Act 13] would prohibit you from sharing with a government agency or publishing in a scientific journal… So you wouldn’t be able to prevent anyone else from getting hurt.”

In the Inquirer article, Sandy Bauers writes, “Proponents say the provision is standard language, pretty much copied from similar legislation in Colorado and other states.” Is being “standard” somehow beneficial for individuals, communities and populations at risk? It appears to be the opposite. It’s the industry which likes a standardized approach, because that enables them to keep toxic secrets secret, defeat legal challenges, predict their profits, and prevent and delay public health research.

The new Colorado law, passed in December, is quite explicit in asserting that health professionals who are forced into signing a confidentiality agreement with a fracking corporation are thereby promising not to disclose chemical information considered by those corporations to be proprietary trade secrets, “for any purpose other than the health need(s) asserted.”

In other words, nothing other than the immediate medical needs of one individual patient may be considered in the physicians’ decisions about disclosure. When an individual in Pennsylvania becomes sick or dies (as happened to Chris Mobaldi and Jose Lara, both in Colorado) because of exposure to gas drilling-related contaminants which move through the air, through surface or groundwater, or which may have been absorbed into their skin when they showered, the physician who successfully petitions a corporation to find out exactly what chemical or chemicals hurt that patient is legally bound not to tell independent public health researchers – or community residents – about those chemicals and their health impacts.

Act 13 “completely precludes preventive medicine or research,” said Deborah Goldberg, an attorney with EarthJustice who has analyzed both provisions in Pennsylvania’s new gas drilling law which apply to physicians. “The statement from [Pennsylvania’s] health department is seriously misleading.”

Pennsylvania Officials Offer Carefully Crafted, but Empty, Reassurance

Eli Avila, Pennsylvania’s Department of Health Secretary, wrote, “I do not believe Act 13 prohibits a physician from sharing information with their patient or other necessary health-care professionals for the purposes of diagnosis or treatment.” But as Deborah Goldberg notes, his statement is so carefully crafted and so narrow that it means the patient might be told what chemicals they have been exposed to “at best.” It’s quite clear and explicit that the physician may not share the information about fracking chemicals for other legitimate purposes, including preventive medicine, the protection of other residents or animals who may continue to be exposed to the same chemical that particular patient was exposed to, and research.

The same type of empty reassurance is offered by other Pennsylvania officials, notably Department of Environmental Protection Secretary Michael Krancer and Patrick Henderson, Governor Corbett’s hand-picked energy advisor. Avila, Krancer and Henderson are all political appointees approved by Corbett, who has been bankrolled by the gas drilling industry for the past eight years. Chesapeake Energy CEO Aubrey McClendon gave Corbett the $450,000 donation which made all the difference, in 2004, in Corbett’s campaign to become Attorney General in Pennsylvania. Corbett took at least 1.2 million dollars from the gas industry in his 2009 gubernatorial campaign, according to Common Cause.

Henderson, carefully avoiding the question of protecting other PA residents who may be impacted by the same chemical, says that nothing “prevents the free sharing of information with the patient, other health professionals providing care to the patient, and the health-care regulators.” However, the law actually says nothing of the sort. Deborah Goldberg commented, “It would be great if Act 13 actually meant what Pennsylvania officials are claiming it means. But it doesn’t.”

Barry Furrow, a health law professor at Drexel University, said Act 13 “confines doctors too much. It takes public health out of the picture and leaves doctors unprotected, whatever legislators may say.” Susan Phillips reported Furrow’s views on April 19th on the NPR blog, StateImpact: “Health Law Expert Says Pa. Doctors Should Fear the New Drilling Law“.

6 Comments
  1. May 2, 2012 11:59 am

    It is an illegal law. ALL illegal laws are “void”. Yes, some may enforce it – but showing them it is NOT legal will help to stop this.
    You would be surprised to realize how many military and law enforcement think the Oath they took was to a president; It was NOT – that is only done in Monarchies, Dictatorships of which the USA is NOT.
    The three branches of our government, the military, all law enforcement, the heads of the States, all federal employees are required to take an Oath to support and defend the Constitution and NOT an individual leader, ruler, office, or entity.

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