This month’s case occurred during the COVID-19 pandemic and involved a physician who believed that he had a substantive due process right to exercise his independent medical judgment when it came to treating COVID-19 patients.

Facts of the Case

Dr H was employed as the chief of medical staff at a large public hospital during the COVID-19 pandemic. The physician strongly objected to the hospital administration making various off-label COVID treatment options unavailable to patients. He believed some off-label medications might be helpful for his hospitalized COVID-19 patients.

In November 2020, Dr H treated 4 COVID-19 patients with the medication bamlanivimab, which had been issued an emergency use authorization (EUA) for the treatment of mild-to-moderate COVID-19 in adult and pediatric patients but was not authorized for patients who are hospitalized or require oxygen therapy.

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The treatment of Dr H’s patients was met with mixed success: 2 of the patients seemed to have positive results, while none of the 4 suffered adverse effects. Dr H intended to treat a fifth patient with the medication (and had issued the prescription order), but, before the medication could be dispensed, the hospital’s administration suspended the use of bamlanivimab for the treatment of COVID-19 infections.

The hospital’s Chief Nursing Officer (CNO) reversed the medication order and spoke to the hospital’s Chief Executive Officer (CEO) about how to handle the situation. With the CEO’s approval, the CNO along with Ms N, the charge nurse, spoke to the patient and the patient’s family about why the medication was not going to be used. Ms N explained that the medication had not been approved by the FDA for treating COVID-19 [in hospitalized patients] and might be dangerous and had been banned by the hospital.

After the incident, the CNO and the CEO reached out to the physician’s group that contracted with Dr H and asked that the physician be fired for failing to comply with the hospital’s policy against off-label treatments. Dr H was eventually fired, although the reason for his dismissal was his failure to comply with the hospital’s policy regarding personal protective equipment.

Dr H hired an attorney and filed a lawsuit against the hospital, its CEO, the CNO, and Ms N.

The Lawsuit and Court Decision

In his lawsuit, Dr H alleged discrimination, interference with his relationship with a patient, defamation, and more. The attorneys for the CEO, CNO, and Ms N filed a motion to dismiss the case for failure to state a valid claim. In deciding a motion to dismiss for a failure to state a claim, the court must accept as true all of the factual allegations in the plaintiff’s complaint and then must decide whether those allegations add up to a supportable claim.

The court dismissed Dr H’s first claim, discrimination. His next allegation was that he was being deprived of his due process rights to privacy in medical decision making. In other words, by not allowing him to prescribe off-label medications, the hospital and its staff were depriving him of due process. The court, however, pointed out that generally due process concerns the deprivation of a fundamental right, such as life, liberty, or property. 

Dr H argued that a physician’s right to exercise medical judgment for a patient is a fundamental right, and interfering with that “shocks the conscience.” The court disagreed, noting in its decision that “Plaintiff essentially argues that Defendants interfered with his ability to treat a patient in the manner he saw fit, that they, in turn, poisoned his patient’s mind against him, and that they employed tactics to tarnish his professional reputation. Plaintiff has not alleged that a fundamental right was infringed by Defendants’ actions. … Instead, Plaintiff seeks to elevate what is essentially an employment dispute to the constitutional level. He simply alleges that he engaged in a course of treatment that his superiors believed was inappropriate and he was fired as a result. That is an employment dispute, not a constitutional claim,” concluded the court.

Next, Dr H claimed that his firing was retaliation for expressing his opinions about the off-label treatment options. He claimed that this “expressive conduct” (which included prescribing the medication) was related to the public interest and thus should be protected. The court disagreed, holding that Dr H had failed to establish that his ‘expressive conduct’ was protected activity. The court agreed with the defendants’ arguments that “not all conduct is protected speech simply because the person engaging in it intends thereby to express an idea.”

Slander was Dr H’s next claim. He alleged that Ms N’s communications with the patient and family were false, placed the patient at risk of harm, and were intended to and did damage to Dr H’s personal and professional reputation. To succeed on this claim, ruled the court, Dr H needed to show that in connection with his firing from the job, Ms N publicly made allegedly untrue claims about him that would damage his standing in the community and prevent him from getting other employment. The court noted that the complaint alleged that Ms N falsely told the patient that bamlanivimab was prescribed in violation of FDA guidelines, that Dr H violated hospital policy, that the drug was not safe, and that Dr H was putting the patient’s health at risk.

However, the court concluded that there was no allegation that the statements were made in connection with Dr H’s dismissal from the job or that they damaged his reputation or harmed his job prospects.

The court ultimately dismissed the case against Ms N, the CNO, and the hospital’s CEO. Although the hospital itself had not filed a motion to dismiss the case, the court held that Dr H had failed to state a valid claim against it.

Protecting Yourself

Dr H treated his firing as if it were a Constitutional issue, but as the court pointed out, it was an employment case. That’s important to remember whether you are Dr H or Ms N. The physician had a responsibility to his employer to abide by the policies of the hospital, even if he didn’t agree with all of them: meaning, that he should not prescribe a medication that had been suspended by the hospital. The bottom line is that if you are an employee, you need to follow the rules of your employer (unless it would harm your patient).

Ms N did the appropriate thing in this case – explained to the patient and his family that he would not be getting the medication he had been prescribed and the reason why. Advocating for your patients and their safety will always stand you in good stead.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.