Four times in the past several months (here, here, here, and here), we have reported on cases in which plaintiffs have sought injunctions that would compel hospitals to administer the anti-parasitic drug ivermectin to COVID-19 patients. Today we report on another such case, Texas Health Huguley, Inc. v. Jones, ___ S.W.3d ____, 2021 WL 5405794 (Tex. Ct. App. 2021). In the first appellate ruling on the issue that we are aware of, the Texas Court of Appeals vacated a preliminary injunction that would have forced a hospital to grant privileges to a doctor for purposes of administering ivermectin to a COVID-19 patient, holding that neither state nor federal law required the hospital to do so.
There is no reliable evidence that ivermectin is effective against COVID-19 and some evidence to suggest that it is toxic when given at high doses (as it typically is when prescribed to treat COVID-19). Given the data, the FDA, CDC, AMA, WHO, and other healthcare organizations strongly discourage use of ivermectin to treat COVID-19. And, given the data, most doctors refuse to prescribe, and most hospitals refuse to administer, ivermectin as a COVID-19 treatment.
Despite the science, desperate relatives of COVID-19 patients have repeatedly petitioned courts to issue mandatory injunctions requiring hospitals to allow willing prescribers to administer ivermectin to hospitalized patients.
On two occasions trial courts have issued such injunctions. In neither instance did the injunction last. In one case, a short-term injunction issued by a temporarily-assigned judge was quickly vacated by the permanently-assigned judge after an evidentiary hearing. See Smith v. West Chester Hosp., LLC, 2021 WL 4129083 (Ohio Com. Pl. 2021) (patient has no right to receive, and hospital has no duty to administer, ivermectin to COVID-19 patient). The other case is the subject of today’s post—the appellate decision in Texas Health Huguley.
The plaintiff’s husband was hospitalized after contracting COVID-19 and, although no longer infected with the SARS-CoV-2 virus, remains in a medically induced coma suffering from long-term aftereffects of COVID-19. At some point, the plaintiff asked that her husband be administered ivermectin.
When his treating physician refused to prescribe the drug, the plaintiff searched the internet and found a doctor who was willing to prescribe ivermectin (and 16 other drugs) without ever having met plaintiff’s husband. Armed with that doctor’s prescription, Plaintiff sued the hospital and her husband’s treating physician, asking that they be ordered to administer the now-prescribed ivermectin.
The plaintiff obtained an ex parte temporary restraining order directing the hospital to administer the drug. But the hospital refused to comply and challenged the order by filing a petition for a writ of mandamus. Before the appellate court could act on the petition, the case was transferred to a different trial judge, who dissolved the TRO but held an expedited hearing on the plaintiff’s request for a preliminary injunction.
Avoiding the question of whether it could compel either the hospital or the doctor to administer a drug against their professional judgment, the trial court ordered the hospital to grant treating privileges to the prescribing physician so that she could administer the ivermectin.
The hospital appealed, and the appellate court dissolved the injunction, concluding that, on the facts of the case, the court lacked legal authority to order the extension of privileges to the prescribing physician.
The decision is a gold mine of great quotes for those defending against injunctions that would force a healthcare provider to administer ivermectin (and other drugs that are not the standard of care) over the provider’s objection:
- “[J]udges are not doctors.”
- “Just as [courts] cannot legislate from the bench, [courts] cannot practice medicine from the bench.”
- “The judiciary is called upon to serve in black robes, not white coats.”
Texas Health Huguley, 2021 WL 5405794, at *1, *7.
With one notable exception (discussed below), the court’s substantive analysis is also spot-on.
To obtain a preliminary injunction under Texas law, a plaintiff must demonstrate (1) a viable cause of action; (2) a likelihood of success on the merits; and (3) that she would suffer a probable, imminent, and irreparable injury absent the temporary injunction.
The appellate court began its analysis by declaring that the plaintiff had “[u]ndeniably” met “the third prong of the test.” 2021 WL 5405794, at *7. That is a perplexing—and dangerous—statement. Although plaintiff’s husband might be at risk of imminent and irreparable injury, that is because he contracted COVID-19, not because he has been denied ivermectin. As other courts have explained when denying injunctions that would compel the administration of ivermectin, a plaintiff “cannot show its administration is necessary to avoid irreparable harm” because “the weight of [scientific] authority shows that it is not an effective treatment” for COVID-19. DeMarco v. Christiana Care Health Servs., Inc., 2021 WL 4343661, at *11 (Del. Ch. 2021); accord Smith v. West Chester Hosp., LLC, 2021 WL 4129083, at *4 (Ohio Com. Pl. 2021).
Its mistake regarding irreparable injury notwithstanding, the Texas appellate court vacated the injunction, holding that the plaintiff failed to present evidence that would support a viable cause of action.
The court rejected the plaintiff’s claims for declaratory relief based on alleged regulatory and statutory violations, finding that none of the statutes or regulations invoked by the plaintiff required the hospital to administer ivermectin. It also rejected the plaintiff’s contract claims, finding no express or implied contractual duty to administer the drug.
The plaintiff argued that in refusing to administer ivermectin despite her express direction, as her husband’s legally authorized representative, that it be administered “violat[ed] his right to exercise informed consent to accept and/or decline proposed treatment.” 2021 WL 5405794, at *10. But the Texas informed-consent statute “applies to a treatment actually rendered by a physician or health care provider; it does not apply to a treatment the patient wants to compel the physician or provider to render.” Id. (internal quotation marks omitted). “The informed consent law is thus inapplicable,” said the court. Id.
The court held that the plaintiffs’ reliance on three other provisions—Texas’s pandemic-related liability waiver, HHS’s waiver of certain federal credentialing requirements, and Texas’s right-to-try statute—was also unavailing because each “operates as a shield, not a sword,” and thus “cannot form the basis of a claim.” 2021 WL 5405794, at *10–12.
The state’s pandemic-related liability waiver provides that “a physician[ or] health care provider … is not liable for an injury … or death arising from care, treatment, or failure to provide care or treatment relating to or impacted by a pandemic disease.” Tex. Civ. Prac. & Rem. Code Ann. § 74.155(b). This, said the court, “allows a physician or health care provider a defense to pandemic-related liability, but it does not authorize a court to intervene and compel a physician to administer a specific pandemic-related treatment.” 2021 WL 5405794, at *10.
The partial waiver of federal credentialing requirements in response to COVID-19-induced staffing shortages allows hospitals to grant privileges to doctors without satisfying otherwise applicable requirements. See Centers for Medicare & Medicaid Services, COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers (May 24, 2021), https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf. “But” the court found that, “as with Texas’s pandemic-related liability waiver, … there is nothing about the [federal] waiver that requires a hospital’s medical staff to bypass the normal federal credentialing requirements, nor is there anything about the CMS waiver that authorizes a court to mandate credentialing of a specific physician.” 2021 WL 5405794, at *11.
“The same is true,” said the court, “of the Right to Try Act,” which allows a terminally ill patient to use a statutorily defined “investigational drug, biological product, or device.” 2021 WL 5405794, at *11 (quoting Tex. Health & Safety Code Ann. § 489.001). The plaintiff’s reliance on the Right to Try Act was misplaced both because ivermectin does not meet the statutory definition of an “investigational drug” and because the statute is merely “permissive.” Id. “It authorizes terminally ill patients to use investigational drugs, and it protects the physicians and manufacturers that recommend or provide such drugs, but the Act does not require a physician to prescribe investigational drugs.” Id.
Nor could plaintiff prevail on a contract theory. She presented no evidence of an express contract between her husband and the hospital treating him. And the implied contracts that exist as a matter of law between, on the one hand, each patient and, on the other hand, each treating hospital and each treating physician respectively require only that the hospital and physician “abide by the relevant standard of care.” 2021 WL 5405794, at *12. That didn’t help the plaintiff because she “did not identif[y] any standard of care that would require them—not merely permit them—to administer Ivermectin.” Id. at 13.
“[T]he fact of the matter,” said the court, “is that we can give the [plaintiff and her husband] our sympathies and prayers, but not an injunction, because the law simply does not permit us to do so.”
This article was written by Andrew Tauber of Winston & Strawn LLP