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Note: Placing Physicians Between Scylla and Charybdis: Chemical Disclosure Law Requiring Health Professionals to Sign Confidentiality Agreement Creates Risk of Liability for Physicians and Impedes Protection of Public Health


The Pennsylvania General Assembly enacted House Bill 1950 (Act 13) in February 2012, regulating hydraulic fracturing and the disclosure of chemicals used in the process. Part of this new legislation permits healthcare professionals to access proprietary information, otherwise subject to trade secret protection; however, Act 13 mandates that the requesting healthcare professionals first sign a private confidentiality agreement. There is an emerging debate extending across the states proposing similar legislation as to whether requiring a confidentiality agreement exposes physicians to potential liability or loss of license. On the one hand, if physicians abide by the terms of the private confidentiality agreements, they may violate their ethical code and state statutory laws protecting public health and safety, and such action may also expose them to potential common law negligence claims. On the other hand, if physicians share the information obtained under Act 13, they may be in breach of contract under the confidentiality agreement. This Note examines this dilemma and concludes that the vague language of Act 13 exposes health professionals to either breach of contract liability or potential tort liability and risk of losing their license. This Note recommends that the Pennsylvania Legislature should immediately pass an amendment clarifying the text of the statute, explaining whether physicians may share the information and with whom they can share it, taking into account the ethical obligations, common law doctrines, and public health concerns inherently intertwined with this issue. This Note also serves to guide other states considering similar chemical disclosure laws.