In early September 2021, a 54-year-old patient, Mr D, was diagnosed with COVID-19 and admitted to an intensive care unit. While in the hospital, Mr D remained in isolation, and only hospital staff could see him. His wife communicated with him by phone.
The staff treated Mr D in accordance with the hospital’s treatment guidelines for COVID-19. He received heated and humidified high-flow oxygen at the maximum setting, methylprednisolone sodium succinate, remdesivir, benzonatate, and guaifenesin-dextromethorphan. Despite this treatment regimen, the patient’s condition did not improve. Mr D clearly expressed that he did not want to be placed on a mechanical ventilator. It was part of his advanced health care directive, and he repeatedly told this to clinicians. Mrs D also discussed her husband’s wishes with his doctors.
After he was admitted to the hospital, Mr D texted his wife, asking her to look into alternative treatments. He asked his wife to request ivermectin — an antiparasitic agent approved by the FDA to treat topical fungal diseases but not approved or recommended for COVID-19. Mrs D discussed ivermectin with hospital staff, including her husband’s team and the patient advocacy department. The staff were consistent with the hospital’s guidelines and refused to treat Mr D with ivermectin.
Mrs D searched for a physician to prescribe the drug and eventually found Dr B, a family medicine specialist in another town, who was willing to prescribe ivermectin despite never having treated Mr D and without an examination. Dr B wrote the ivermectin prescription, which Mrs D had filled at a local pharmacy. However, since Mr D was in isolation, his wife had no access to him and could not deliver the medication.
The hospital refused to administer or authorize the medication and asserted that Dr B did not have privileges at the hospital. Meanwhile, Mr D’s condition worsened; he was diagnosed with severe hypoxic respiratory failure and was on the verge of requiring manual ventilation.
The following day, Mrs D’s attorney filed a complaint in court seeking an injunction requiring the hospital to administer the ivermectin prescribed by Dr B. The case was expedited and scheduled for a hearing.
Awaiting a decision, Mr D decided to check himself out of the hospital against medical advice and sought home hospice care so that he could self-administer the ivermectin. His wife, with the aid of a hospice nurse, attempted to treat Mr D at home, giving him a large dose of the medication. However, while at home, his oxygen mask broke and his condition rapidly deteriorated. Mr D’s wife called 911 and he was readmitted to the hospital ICU.
This time, Mr D rescinded his “do not resuscitate” order and agreed to be intubated. At the time of the court decision, Mr D was gravely ill, intubated, and on ventilator support.
The Legal Arguments
During the injunction hearing, the plaintiff (Mrs D) claimed that the hospital’s refusal to permit administration of ivermectin breached “the patient/physician contract and the Hippocratic Oath” as well as Mr D’s statutory right to self-determination. Mrs D sought an injunction to force the hospital to provide the medication. The hospital argued that the plaintiff did not establish a duty or right that would be enforceable by an injunction because, under its standard of care, ivermectin is not used as a treatment for COVID-19. The hospital argued that it would be harmed if it was forced to act against established medical standards.
The Court Decides
The court ruled in favor of the defendant. The court noted that a mandatory injunction can be granted only if the plaintiff can show: 1) entitlement to judgment as a matter of law on the merits of the claim; 2) the failure to issue the injunction will result in immediate and irreparable injury; and 3) the balance of hardships weighs in the plaintiff’s favor.
Explaining how the plaintiff had failed to meet the criteria, the court wrote: “Plaintiff must meet all 3 factors to prevail, but she falls short on them all. Defendant does not have an enforceable duty to treat Mr D with ivermectin, and Mr D does not have an enforceable legal right to that treatment. Plaintiff has failed to demonstrate irreparable harm: the material fact of whether Mr D will be harmed if deprived of ivermectin is hotly disputed, and the weight of the record favors the defendant.”
The court noted that the efficacy of ivermectin is disputed and the medication is not part of the standard of care for treating COVID-19. In fact, “treating COVID-19 with ivermectin is undisputedly contrary to generally accepted health care standards. Pre-eminent institutions representing numerous facets of the national medical establishment, including the FDA, CDC, AMA, World Health Organization, and Infectious Disease Society of America have criticized the use of ivermectin as a treatment for COVID-19.”
The court went on to state that Mr D’s statutory right of self-determination in the health care setting only applies to the right to refuse medical or surgical treatment. It doesn’t create a right to a specific treatment. “Even the terminally ill do not have a constitutional right to obtain a particular type of treatment or to obtain treatment from a particular provider,” noted the court.
In denying the injunction, the court noted the following: “The evidentiary proceedings before this Court focused on ivermectin’s safety and efficacy, with the hospital explaining why ivermectin is not part of the standard of care and the plaintiff arguing why it should be. But this opinion denies the injunction based on 2 more fundamental, and reciprocal, precepts. Patients, even gravely ill ones, do not have a right to a particular treatment and medical providers’ duty to treat is coterminous with their standard of care. This court will wield its equitable powers only to enforce a right or duty; in their absence, relief is not available. The patient has this Court’s sincerest sympathies and best wishes, but not an injunction.”
The court noted that earlier in September an Ohio court denied a similar request to mandate treatment of COVID with ivermectin. That court found that granting the injunction would adversely impact “the safe and effective development of medications and medical practices … a hospital’s standard of care decisions, mandating doctors and nurses to provide care they believe unnecessary, ethical concerns of all doctors involved, patient autonomy, fiduciary duty, accreditation standards for patient protections, obliging one doctor to carry out the treatment regimen of another doctor… and whether a court should medicate or legislate from the bench.”
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.