Ivermectin by Judicial Order

A handful of courts have ordered hospitals to administer ivermectin to Covid-19 patients, despite the fact that there is no evidence that it is a safe and effective antiviral. Although it is legal for physicians to prescribe drugs off-label doctors have overwhelmingly declined or refused to prescribe ivermectin because it may interfere with other proven medications. Nonetheless, some patients, supported by a group of medical outliers, have insisted on trying the anti-parasite drug, and some families have brought successful lawsuits.

The ivermectin litigation has been helpfully summarized on the important website Science Based Medicine. Here is the gist of the post by attorney Jann Bellamy:

Nine lawsuits have been filed recently seeking judicial orders forcing hospitals to administer the controversial drug ivermectin to COVID patients against the medical judgment of their treating physicians. In at least one case, in addition to the hospital, the physicians themselves were named as defendants. Seven have been successful, although one order was superseded by another judge, who ruled in favor of the defendant hospital. Hospitals are appealing other orders. In two lawsuits, the hospital prevailed and the judge refused to order administration of ivermectin.

In all but one case, the plaintiffs are represented by New York law firm of attorney Ralph C. Lorigo. The plaintiffs seek emergency relief, asking that the court enter an order requiring the hospital to administer ivermectin immediately. The courts have issued such orders before the hospital has had an opportunity to be heard and, in at least one case, before the hospital was served with notice that the action had commenced.

Noted bioethicist Arthur Caplan blasted the decisions forcing hospitals and physicians to administer ivermectin in an Ars Technica interview. “There is no standard of care saying you have to use [ivermectin]”, he said, and orders forcing its administration were asking doctors to do something “unethical and illegal”. Calling the original order (now overturned) in the Jeffrey Smith case “absurd”, Dr. Caplan said that if he were these doctors, he “simply wouldn’t do it”.

[N]one of the cases in which I reviewed the pleadings and orders cited any legal right to force a physician or hospital to administer a drug against a physician’s medical judgment.

The entire post is extremely informative, including links to all nine known ivermectin cases. It can be read here.

 

Comments

[Howard Wasserman]

What is the cause of action here? If there is no right to any particular treatment and thus no violation of a right by failing to give any particular treatment, how can the court issue a remedy?

[Howard Wasserman]

Should have read the linked article first. The answer is--none whatsoever. Courts have issued these orders without looking at whether the plaintiffs had any legal right. I assume the judges were blinded by the irrepararable harm and sort of ignored the unlikelihood of success on the merits. Good judging.

[Steve L.]

That's the key question, Howard. As Bellamy points out, none of the petitions have cited any actual authority, let along a cause of action. They do have affidavits from some fringe MDs who, in many cases, have not even examined the patient.

[anon]

As is common, the discussion here has little relation to the actual facts/law.

The key question here is whether a hospital must adhere to the treating physician's lawful order.

As usual, the left latches on to any view that is even slightly divergent from the dictates of their ministry of truth (including, of course, the views of prominent doctors, reputable universities, etc.) and then starts the vile demonization process to discredit such views.

You are all, one is sure, aware of the whoppers on this issue promulgated recently in the press. Huge lies have been fed to the left to fuel their hateful stance on this issue.

"The" science, indeed.

The left in this country doesn't seem to even understand what the word means.

[a non]

anon @ 4:01pm - I have no idea what point(s) you are trying to make, but I am interested. Come again, please!

[anon]

A non

One of the biggest problems today is that the left is so isolated that they don't get the news of the day. They boast and brag about who they are, and how great they are, and demonize all others who disagree with those conclusions, but their preening and conceit is truly a despicable element contributing to the decline in the US of basic competence.

https://www.cjr.org/the_media_today/how-a-story-about-ivermectin-and-hospital-beds-went-wrong.php

[anon]

And, btw, cannot a member of a faculty of law even discern the issue when a hospital refuses to abide by a treating physician's lawful order?

If the near uniformity of rulings (7-2 against the hospitals) was in favor of the "leftist" position (this has nothing to do with "the" science, folks, this is the politics of the authoritarian left), these leftists would be scolding and demeaning all the toothless hillbillies asserting a position so obviously rejected by "the" courts.

But, notwithstanding the fact that they have, at least for now, been unable to overcome even extraordinary petitions, the left comes out and pontificates as follows:

"We don't even know what the issue is, so we must be correct that we are correct."

Go back to Maddow, folks. You'll feel ever so superior.

[Howard Wasserman]

The hospital, and those who have admitting privileges, are the treating physicians of a patient who has been admitted to the hospital, not the prescribing physician who does not have admitting privileges at that hospital. As a separate article (linked within the article Steve links to) argues, the patient can ask to be transferred to a different facility that will give him what he wants. Or he can check out of the hospital AMA and get treated by a different treating physician someplace else.

The efficacy of this or any other drug is beside the point. The point is whether there is a legal right to certain treatment from a physician or even to have the hospital follow the orders of another physician. The answer appears to be no.

[Steve L.]

Thanks, Howard. In the nine cases -- all of which are linked to the Bellamy article -- the would-be prescribing physician does not have privileges at the hospital. In most of them, the prescribing physician has not even examined or even consulted with the patient.

[anon]

Yes, you are finally seeing the issue. REmember, you both started with the preposterous attitude that there was "no issue."

The issue is, as stated above, whether the treating physician decides or a hospital decides how to treat the patient, supposing legal orders by the treating physicians.

Howard seems to think "the hospital" is a treating physician ("The hospital [is] the treating physician ...") or that doctors with privileges at a hospital are, per se, the functional equivalent of "the hospital." Stunning.

Now, you seem to be realizing the issue, and now you have latched onto a putatively relevant criterion, "privileges": but, obviously one that the majority of courts rejected. Neither of you has done your homework.

You really don't seem to know what you are talking about. YOu are just too desperate to find a wedge issue. Read the article in the Columbia Journalism Review. Your biases are embarrassing. Some who lean left are finally starting realize just how bad this has become.

What is so delicious is:

a. No cognizance or awareness of the false reporting on this issue in the left/establishment media;

b. No understanding of the scientific method and what the word "science" means (hint: there is no such thing as "the science" especially in the face of learned disagreement among prominent scholars/researchers/practitioners, etc.); only the most arrogant political hacks among us wield the notion of "the science" as a sword;

c. and the very richest leftist formulation of the day, "Your body, my decision." ONe has to relish the way they want to get between a woman and her doctor.

It seems to me that the posters above need to take a basic course in Health Law.

[a non]

anon @ 10:09pm -

I -- and I'm guessing I'm not alone in this -- would really appreciate it if you worked a little harder on writing clearly, and a little less hard on writing with snark. Your posts are borderline incomprehensible. I genuinely am interested in what you have to say, but right now, all I'm getting is condescension and smarminess wrapped around demeaning statements toward "the left/establishment" (whatever that means).

[Howard Wasserman]

A question asked in all seriousness: What is the source of law that establishes the concept of the "treating physician" and the legal right to have all other medical personnel listen to that treating physician? What statute, rule, regulation, whatever establishes that concept and gives one physician final say over all others?

Patient A can be treated by Dr. X and they have whatever relationship and follow whatever treatment Dr. X prescribes; no one can interfere with that (so long as Dr. X is not doing something illegal or unlawful). But if Patient A is admitted to General Hospital, he submits to treatment by the staff at that hospital and the medical personnel who work there; unless Dr. X has some relationship to General Hospital, he has no right to treat anyone there. Patient A can leave the hospital to be treated by Dr. X or to go to a hospital that has a relationship with Dr. X or will listen to Dr. X. But what law compels the hospital to listen to Dr. X when its medical judgment and the judgment of its medical staff goes in another direction? According to the articles linked, there is none.

This is a serious legal question that I think can be answered without name-calling.

[anon]

Howard

No time to write the brief. I was quite sincere: it appears from your comments that some basic understanding of the health care enterprise is missing.

First: you are -- one is sure you should be -- aware that doctors with privileges are often independent contractors. They are not employees of the hospital. Although, in instances of respondeat superior, your point above about the "hospital is the treating physician" might have some superficial salience, not so here.

Second, you don't appear to know the distinction between "admitting" and "treating" and other relevant distinctions at issue here see, e.g., courtesy privileges.

Third, you query: Is there is a "legal right ... to have the hospital follow the orders of [a] physician."[?] The answer appears to be no."

You so conclude based on the fact that the plaintiffs have won 7 of the 9 cases that came before the courts: in different states. How is it that, Howard, that you cast aspersions on the competence of these courts, without really understanding even the role of the physician vis a vis the hospital, the nature of privileges, the specifics of these cases, etc? I think it is incumbent on the ones attacking judges to explain the grounds, not just call them names and question the competence of the courts. You started off not even knowing what the issue was.

Now, I will readily admit, I have not fully learned the reasons for the decisions by these courts. But, I am quite sure that you haven't either. You appear to be unaware that, at least at present, the answer appears to be "yes" -- that was the whole point of the post above.

I joined this thread because you and Steve were just engaging in typical biased bashing because you thought you had a red dog by the tail, and it was quite evident that you didn't really understand the issues (you basically said so).

As for all the rest, you ignore the political points for good reason. You really should read the CJR article linked above. Perhaps you would then begin to understand the reason this issue motivates you.

This isn't name calling. Your retort is rich, on this thread and in the FL. Lubet labels at least some (or most) of the physicians acting here "fringe MDs." Is that not name calling?

You cast aspersions on the courts, while clearly not really even understanding the issues.

As for A non, I really can't follow what you are saying. You seem to be saying something, but I don't understand your obtuse and snarky comments. I suspect you know that your comments are off point and really have nothing to do with the issues.

[a non]

anon @ 12:10 AM,

If you can't distinguish a friendly comment from an unfriendly one, there isn't anything I can do to help you. I'm betting you feel smug about the cleverness of your posts, but they aren't landing to the extent they should because of your remarkably obtuse style of writing.

[anon3]

Correct me if I'm wrong, but isn't the question here fairly straightforward?: must a hospital or a doctor administer treatment with which it disagrees?

My gut is that the answer is no. If I find a doctor who wants to treat my cancer with leeches, and then I am admitted to a hospital, I can't imagine that the hospital (/hospital doctors) will have to continue to leech me, even if that's what my physician has prescribed.

That's presumably true irrespective of whether the hospital doctors are independent contractors, irrespective of who has admitted me, irrespective of who is technically my treating physician, etc. But if there is some statute or regulation that says otherwise, I'm all ears!

[anon]

anon 3

You are missing a key point.

Debating with folks on this thread is sort of useless, but one more try.

The issue is to what extent a hospital (which includes a treatment staff) must adhere to the treatment plan prescribed by the patient's treating physician. For example, if a conflict arises between hospital policy and the doctor's orders (e.g., with respect to restraint of a patient) the nurses, etc. may be put in a difficult situation. Generally, lawful orders not in conflict with hospital policy are not an issue.

With respect to WHO is qualified to act as the treating physician in a hospital, the rules are complex, rigorous and too complicated to discuss here. All we really know is that, were the issue so simple (a doctor without any privilege to treat the patient "orders" treatment and the hospital doesn't recognize that order) I would doubt teh courts would have held 7-2 for the patients, but, as stated above, we are not working with a full picture of the facts.

Finally, most of you are just repeating over and over that a doctor (or nurse? or "hospital") can't be "ordered" to provide or withhold treatment. Of course, that is simply false, as any basic course in health law would explain.

[anon3]

"Finally, most of you are just repeating over and over that a doctor (or nurse? or "hospital") can't be "ordered" to provide or withhold treatment. Of course, that is simply false, as any basic course in health law would explain."

This seems like the crux of things. Do you have any citation for the proposition that a doctor (or nurse or hospital) *can* be so constrained by another doctor? If Doctor A prescribes leeches, is there any circumstance in which Doctor B *has* to leech the patient?

[Howard Wasserman]

I am going to piggyback on anon3's most recent comment, because I think he has identified the crux.

I would add that this requires the identity of a statute, rule, regulation, or judicial decision *other than the cases being discussed here.* The answer to "did the courts get this correct" cannot be "yes, because most of the courts reached that conclusion." It appears that the courts focused on the benefits (according to plaintiff experts) of Ivermectin and the irreparable harm to plaintiffs if they do not receive the treatment, without real consideration of whether plaintiffs were likely to prevail on the merits because they have a legal right to demand a specific treatment. Several of the orders were TROs issued ex parte.

[Steven Lubet]

In at least eight of the nine cases, the prescriptions for ivermectin were not written by anyone who could reasonably be called the patient's "treating physician," in the sense of have any actual physician-patient relationship. Nor did they have privileges at the particular hospital (and in at least one case, not at any hospital), nor had they even seen or reviewed the patients medical records.

At least one of the ex parte TROs was later reversed.