A state appellate court refused to order a hospital to permit an intubated and ventilated COVID-19 patient’s unaffiliated treating physician to administer an unproven, but possibly life-saving, drug in contravention of hospital treatment protocol. The court reasoned that “a judiciary is called upon to serve in black robes, not white coats. And it must be vigilant to stay in its lane and remember its role. Even if we disagree with a hospital’s decision, we cannot interfere with its lawful exercise of discretion without a valid legal basis.” ABA Litigation Section leaders diverge on whether the court’s conclusion was sound but applaud its willingness to resolve what had indisputably become a “moot” issue upon the patient’s death.
When Law and Medicine Collide
In Shoemaker v. UPMC Pinnacle Hospitals, a patient tested positive for COVID-19 and was hospitalized at the defendant’s medical facility. The hospital’s protocol for COVID-19 treatment did not include ivermectin, as the hospital had determined that it was “not well-studied.” The patient’s condition worsened, and he was later sedated, intubated, and placed on a ventilator.
The patient’s spouse, acting under power of attorney, obtained a prescription for ivermectin, considered by some at the time to be a life-saving treatment option, from a physician who was not credentialed at the hospital. The hospital refused to administer the drug, and the spouse sought injunctive relief. The trial court granted the spouse’s ex parte request, favoring the rights of the patient over the hospital, and directed the hospital to allow the patient’s treating physician to administer the drug on site.
The hospital appealed, seeking an emergency stay of the trial court’s order, suggesting that the drug was being administered in contravention of its treatment protocol and would cause the patient severe liver damage. The Pennsylvania Superior Court granted the motion to stay the injunction, but the patient died before the court could rule on it.