Don’t stop us if you’ve heard this before, because we know you have. Plaintiffs cannot compel hospitals to treat Covid-19 patients with ivermectin.
A Florida appellate court recently joined courts in Delaware (we wrote about the Delaware case here), Michigan (here), New York (here), and Texas (here) in rejecting an injunction that would have forced a hospital to treat a Covid-19 patient with an ivermectin cocktail. The case is Pisano v. Mayo Clinic, 2022 Fla. App. LEXIS 647 (Fla. Ct. App 1st Jan. 27, 2022), and its reasoning is crystalline and straightforward. At the same time, the facts of the case are unbearably sad (the patient was in a medically-induced coma and attached to a ventilator). Perhaps those sad facts make the crystalline and straightforward reasoning all the more necessary and helpful.
The Mayo Clinic prohibits staff from prescribing or administering medications for off-label use that are not supported by medical literature and approved through the Mayo Clinic’s procedures. Not surprisingly, the Mayo Clinic had assembled a multi-disciplinary Covid-19 treatment review panel. The Mayo Clinic concluded that no evidence supported the use of ivermectin to treat late-stage Covid patients such as the patient in this case. And it is not as if the Mayo Clinic was an outlier. No recognized national or international medical organization supports the use of ivermectin to treat late stage Covid. The bottom line is that the Mayo Clinic would not administer ivermectin to the patient. Desperate circumstances might warrant desperate measures, but they don’t warrant stupid ones.
The patient’s family filed an emergency motion seeking to compel the Mayo Clinic to administer the ivermectin. Against the authority of the Mayo Clinic and other reputable sources, the plaintiffs relied on the testimony of a single doctor. That doctor had no relationship with the Mayo Clinic, which is significant because the Mayo Clinic is a closed hospital. To practice at Mayo and on patients at Mayo a doctor must be employed by Mayo or have some sort of contractual relationship with Mayo. None of that was the case with the plaintiffs’ expert. (So that’s a lot of Mayo nays.) Maybe we’re overly dazzled by the brand equity of the Mayo name, but we suspect that Mayo has high standards.
The doctor testifying for the plaintiffs was licensed in Florida, but with no board certifications. He did not review all of the patient’s medical records, nor had he spoken with anyone at Mayo about its protocols. Interestingly, the Mayo Clinic invited the plaintiffs’ expert to participate in patient care conferences, but he declined to do so.
At a hearing before the Pisano trial court, the plaintiff’s expert confirmed that he had never been permitted to administer ivermectin in a hospital setting except in one court-ordered circumstance. That patient died from bleeding. All of the other Covid-19 patients he had treated with ivermectin were not on ventilators. The plaintiffs’ expert agreed that the FDA opposed the use of ivermectin for Covid patients, and he could not think of any medical organizations that supported such use. Essentially, the plaintiffs’ expert said that no matter how ineffective or even dangerous his proposed treatment plan was, it wasn’t worse than what the patient was already facing. As another ivermectin advocate once said, “What have you got to lose?” But that is hardly good medicine.
On this record, the trial court decided that the plaintiffs had not made out a case for preliminary injunction. The matter went up on appeal.
The plaintiffs’ primary argument was that the patient had a “right to choose life.” There are Florida precedents supporting a patient’s right to refuse medical treatment. That, of course, is not nearly the thing at issue in Pisano. As with the cases in other jurisdictions that we’ve discussed before, courts are reluctant to practice medicine. Thus, the Pisano appellate court observed that the issue before it was “not whether ivermectin or any other particular treatment is effective or reasonable.” The issue was also not whether the patient had a “right to choose life.” Instead, the issue was whether the patient “has identified a legal right to compel Mayo Clinic and its physicians to administer a treatment they do not wish to provide. The answer is no.”
It is as simple as that. Granted, it must have helped that the evidence supporting use of ivermectin in these circumstances was so threadbare. It also must have helped that the hospital defending its medical judgment was the Mayo Clinic. Hold the Mayo, and maybe the result would be different, though we doubt it. Legally, Pisano was an easy case, even while the underlying facts were so hard on the patient and his family.