Q: I have been reading about courts ordering physicians/hospitals to administer Ivermectin to COVID-19 patients. My understanding is that these court cases follow the physician/hospital refusing to do so based on the lack of approval of the use of Ivermectin under these circumstances and/or their particularized finding that this use of Ivermectin is unnecessary, potentially harmful, or otherwise not in accordance with the standard of practice. Can a court practice medicine by ordering a physician/hospital to provide medical care to a patient that the physician/hospital deems unnecessary or potentially harmful?
Any discussion of the use of Ivermectin or any other drug, whether in connection with the treatment of a COVID-19 patient or otherwise, is beyond the scope of this column. I will address only whether a court can order medical treatment (whether it be administering Ivermectin or any other drug or treatment) be provided over the objection of a physician/hospital.
Courts cannot legally order medical treatment be provided over the objection of a physician/hospital. With few exceptions, physicians/hospitals are not required to provide medical care. These exceptions include rendering aid in certain emergency situations, complying with the Emergency Medical Treatment & Labor Act, complying with medical ethics, treatment necessary to avoid patient abandonment and other negligence claims, etc. There is no law authorizing a court to order a physician/hospital to provide medical treatment when that treatment has been deemed by the physician/hospital to be unnecessary, potentially harmful or not in accordance with the standard of practice. It is true that courts have broad equitable powers arising from statutes and case law. However, there is no statute or case law providing courts the authority to practice medicine through their orders.
You may have heard about a recent Oakland County Circuit Court case (Ford v. Beaumont, Case No. 2021-190083-CZ) where a temporary restraining order was entered ordering Beaumont to administer “a course of Ivermectin” to a COVID-19 patient in its Royal Oak hospital. Whether the court had the authority to do this and where that authority came from was not considered until the end of two days of hearings. When asked, the plaintiff stated it was relying on the court’s equitable power and Michigan’s “Right to Try Act”, MCL 333.26451. Section 3 of the Right to Try Act provides that a hospital is not required to provide a treatment unless it has been approved by the hospital (Beaumont has not approved this particular use of Ivermectin). Due to the application of section 3 and the court not exercising any equitable power (it is unclear whether the court found it did not have equitable power or declined to use it) to order this medical treatment, the temporary restraining order was terminated and dissolved 4 days after it was issued.
Despite what its title might suggest, Michigan’s Right to Try Act does not give patients the right to receive any medical treatment nor does this law require physicians/hospitals to provide any medical treatment. Instead, it law provides only that a manufacturer of an “investigational drug, biological product, or device” may make it available to an “eligible patient” when certain requirements have been met.
The Right to Try Act further provides:
- That private and governmental payers are not required to pay for any investigational drug, biological product, or device;
- That debts of deceased patients arising from receiving an investigational drug, biological product or device are forgiven;
- Immunity against licensing actions arising from use of or advice relating to an investigational drug, biological product, or device;
- A prohibition on state officials, employees and agents blocking eligible patients access to investigational drugs, biological products, or devices; and
- For the elimination of private causes of action against a manufacturer of an investigational drug, biological product, or device or those involved in their use when have complied in good faith with the Right to Try Act’s requirements and have exercised reasonable care.