Dying Patient’s “Rights” Bow to Hospital Policy

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.

Judicial Restraint or Activism?

Despite the issue being mooted by the patient’s death, the appellate court elected to resolve the legal question anyway, ultimately reversing the injunction. The court held that the patient “did not have the legal right to either force the hospital to administer ivermectin against the advice of his treating physicians and [the hospital’s] treatment protocol or to demand that [the hospital] grant ICU privileges to unvetted physicians in order to administer this treatment on its premises.”

The court explained that “judges are not doctors [and] cannot practice medicine from the bench.” The court further reasoned that there was an absence of legal authority “to compel a healthcare provider to administer a treatment contrary to the provider’s professional judgment and outside the standard of care.” The inconclusiveness of competent medical studies evaluating the efficacy of ivermectin were considered on appeal when evaluating the appropriate standard of care and determined to be unsettled.

On the issue of mootness, the court explained that “if the issues raised by an appeal are ‘substantial questions’ or ‘questions of public importance,’ and are capable of repetition, yet likely to evade appellate review, then we will reach the merits of the appeal despite its technical mootness.” Siding with the hospital, the court found that the severity of the issue on appeal—specifically in the context of the COVID-19 pandemic and its impact on policy in the area of public health—warranted adjudication.

When Public Policy Controls

Litigation Section leaders vary in their assessment of the court’s decision. “The Superior Court appears to have made a thoughtful, balanced, and excellent ruling,” opines Fabrice N. Vincent, San Francisco, CA, cochair of the Litigation Section’s Business Torts & Unfair Competition Committee. “The ruling was inevitable given the unanimity of opinion of the leading health groups on ivermectin being unproven and inappropriate for COVID-19,” adds Vincent.

Other Section leaders are less certain. “The real life-and-death issues in this case came down to the need for quick action, as a COVID-19 patient’s health can take a turn for the worse on a moment’s notice,” explains David Sterling, cochair of the Section’s Health Law Litigation Committee. “It is impossible to say whether the court got it right or wrong under the circumstances,” Sterling concludes, noting that several important issues were before the court, including “patients’ rights when they are incapacitated and have no freedom of movement to another facility, the rights of the hospital facilities and their protocols, and the unprecedented circumstances brought on by a novel, very contagious, and deadly disease that is the subject of a world-wide pandemic.”

Both Section leaders applaud the court’s willingness to decide the issue despite it being considered technically moot. “I personally believe it was appropriate to consider the merits of the appeal, given the broad range of public policy issues and because the issues were, and are, capable of repetition,” offers Sterling. “It’s so nice the court ruled despite Mr. Cauffman’s sad death,” Vincent agrees. “That way the question is much better settled and future decisions in analogous situations are much easier to be made.”