On The Docket

David B. Brushwood, BSPharm, JD

In December 2021, this column discussed a case in which a hospitalized patient with COVID-19 requested ivermectin and the court refused to require the hospital to honor the patient’s request. Since then, there have been many other legal cases in which similar patient requests have been considered. Each of these cases presents slightly different facts, and each case has resulted in slightly different legal reasoning.

No reported appellate opinion (the gold standard for legal analysis) has required that a hospital administer ivermectin contrary to the hospital’s policies and procedures. Each of the cases uses legal reasoning that can be applied more broadly beyond the context of ivermectin use.

A recent case from Illinois illustrates the complexity of the legal issues and the importance of their legal reasoning.

Background

Both parents of three young children were hospitalized with COVID-19. Despite the administration of “every treatment permitted under the hospital’s protocols, they remained critically ill.” The prognosis was grim.

The patients’ attending physician asked that he be allowed to administer ivermectin, as requested by the patients’ representatives. The hospital denied this request. The representatives sought a court order that would force the hospital to allow the administration of ivermectin. The lower court declined to issue the order. From this denial, the representatives appealed.

Rationale

The appellate court first stated that “the question is not whether treatment with ivermectin is a good idea or a bad one, but whether the plaintiffs have made a valid legal case that the court should override the hospital’s judgment about ivermectin.”

The appellate court agreed with the lower court’s ruling that patients do not have “the right to receive whatever medical treatment they want if that treatment is against hospital policy.”

While expressing “sympathy with the plaintiffs’ worthy goal,” the court nevertheless noted that “judges are not doctors” and they “cannot practice medicine from the bench.”

The court rejected the plaintiffs’ contention that the hospital was interfering with the attending physician’s medical judgment. The court reasoned that the physician “was always required to follow the hospital’s guidelines and standards of care.” The court cited a state law “which places on hospitals an independent responsibility for the care of patients and a corresponding duty to supervise the treatment that physicians provide to their patients within the hospital.”

The lower court’s decision was affirmed.

Takeaways

The most significant differences between this case and the case discussed in the December 2021 column are the poignancy of the impending deaths of both parents and the request for ivermectin being made by a physician with hospital privileges and not by a family member who had obtained medication through a prescription from an outside prescriber.

This case emphasizes several important points:

• Judges will not second guess medical decisions made by health care professionals or by health care institutions.
• Courts have compassion, yet they recognize that pharmacotherapy decisions must be based on scientific evidence and not on emotion.
• Institutional policies can provide cover for health care professionals who are being subjected to unscientific demands by patients or by patient advocates.
• Health care institutions are required to evaluate therapies that are being used in patient care, and this is not considered interference with medical judgment.
• Providing drug therapy that falls below the standard of care may lead to malpractice liability, particularly if the therapy has been criticized in FDA warnings.

While it may seem pointless and harsh to deny a patient’s deathbed request for any medication, there is a slippery slope to consider. At what point do patient wishes override the responsibility to provide evidence-based medicine?

The lessons taught by the ivermectin cases are applicable to all areas of drug therapy. Just as the COVID-19 global pandemic has led to broader understanding of basic science and clinical practice, it has provided new insight into judicial understanding of the responsibilities owed to patients by health care professionals and institutions. ■