Some of our posts about challenges to Covid-19 vaccines or treatments might have been a bit … strident. It is hard to be otherwise when the cases involve such high stakes and so little merit.
But this time we will try to take our cue from the court in Frey v. Trinity Health-Michigan, 2021 Mich. App. LEXIS 6988 (Mich. Ct. App. Dec. 17, 2021). In that case, the court rejected a plaintiff’s request for a preliminary injunction requiring a hospital to administer ivermectin to a Covid-19 patient.
We have written about similar cases before. The Frey court embraced the better, majority rule in holding that a hospital could not be forced to administer ivermectin in violation of its protocols, but the Frey opinion is also noteworthy for its expressions of sympathy for, and understanding of, the plaintiff’s position.
The plaintiff in Frey brought the legal action on behalf of her father, who had contracted Covid-19, gone to the defendant hospital, been placed on a ventilator, received treatment per hospital protocols for Covid-19 (remdesivir, steroids, and antibiotics), but continued to decline. The defendant hospital’s protocols, consistent with the positions of FDA and CDC, did not permit the use of ivermectin to treat Covid-19. The daughter, as patient advocate, found a doctor who prescribed ivermectin for her father, though that doctor had not examined her father and had no admitting privileges at the hospital. The issue was whether the daughter could force the defendant hospital to violate its protocols and give her father ivermectin.
The plaintiff sought a preliminary injunction. The lower court denied the preliminary injunction and the case went up on appeal. The standard of review was whether the lower court had abused its discretion in denying the preliminary injunction. A trial court abuses its discretion when “it chooses an outcome outside the range of reasonable and principled outcomes.” In assessing whether to issue a preliminary injunction, a court must consider whether the applicant has proved all four of the following factors:
1. Irreparable harm will occur without the injunction;
2. The applicant is likely to prevail on the merits;
3. The harm to the applicant would outweigh the harm to the adverse party; and
4. The public interest favors the injunction.
The lower court in Frey decided that the plaintiff had not proved those four factors. The appellate court agreed. But before it plunged into its analysis, it took a moment to express sympathy for the plaintiff’s position: “At the outset, we observe that plaintiff’s position deserves much sympathy; we recognize she simply wishes that every attempt he made to preserve her father’s health.” It is hard to argue with that. When we were in high school, a classmate’s father was in a losing battle with cancer. At one point, he left the country to get Laetrile treatment. That treatment had been discredited in the USA, but we can well understand how one could be driven to desperate, long-shot measures.
That being said, the Frey court’s review was “confined to the narrow legal question of whether plaintiff has demonstrated the factors required for issuance of an injunction.” She had not.
First, the plaintiff could not show irreparable harm. By the time of the litigation, the plaintiff’s father was suffering from sequelae of Covid, but was no longer suffering from an active Covid infection. The treating doctors concluded that ivermectin was not medically indicated for the condition, could not provide any benefit, and could conceivably worsen the father’s health, even to the point of causing death. The plaintiff produced no affirmation of the use of ivermectin from any doctor who examined her father, and produced no evidence that her father’s condition would worsen without ivermectin.
Second, the plaintiff showed no probability of success on the merits. The key issue in the case was “whether the judiciary has the legal authority to compel a hospital to administer a drug, on an off-label use, that the hospital considers may harm its patient, and where that use is not sanctioned by the FDA and other health authorities.” No Michigan case law supplies such legal authority. (Indeed, our own dipping of toes into Michigan law suggests that Michigan allows hospitals to grant or deny privileges as they see fit. This posture suggests that there is no way a court could force a hospital to do anything recommended by a doctor with no privileges.) The plaintiff submitted a couple of New York orders that supported her position, but those orders cited no legal authority or reasoning. By contrast, a Texas case refused to order ivermectin treatment, and made the point that “[j]ust as we cannot legislate from the bench, we cannot practice medicine from the bench.” (We blogged about that Texas case here.) A Delaware court reached a similar result. (We blogged about that Delaware case here.) The Frey court concluded that Texas and Delaware got it right, and New York got it wrong.
Third, the court believed that the harm from denial of an injunction would be outweighed by the harm from issuance of an injunction. The Frey court foresaw “a flood of similar suits from other patients with Covid-19, not to mention other conditions, suing to obtain care that is contrary to hospital policies.” No thanks.
Finally, the Frey court held that an injunction forcing a hospital to administer a drug in violation of its protocols and the medical consensus would damage the public interest. Such an injunction would adversely impact the safe and effective development of medications and medical practices. It would also harm the stability of hospital administration and admitting privileges. The “public interest is best served by permitting physicians and hospitals to follow established procedures and use their professional judgment to determine appropriate medical treatment.”
Thus, the plaintiff proved none of the four factors necessary to secure a preliminary injunction. The plaintiff raised some new arguments on appeal. Typically, an appellate court will not even consider such arguments, but the Frey court heard them out and rejected them. For example, the Frey court declined “to recognize a civil right to treatment of Covid-19 with ivermectin.” The Frey court also declined to interpret the power of a patient advocate to extend to forcing “a hospital to administer medication that it believes would be contrary to a patient’s care.”
The plaintiff also argued that she had not been afforded due process by the trial court, which had dismissed her complaint sua sponte, with no notice and no opportunity to respond. The appellate court acknowledged that arguments and evidence might have produced a more useful appellate record, but also acknowledged that time was of the essence and the lower court reached the right result.
The Frey appellate court heard all the plaintiff’s arguments with patience and sympathy. But in the end, the Frye court was a court of law, and it applied the law correctly.