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Delaware Chancery Court Denies Patient Request for Injunction Forcing Hospital to Treat COVID-19 with Ivermectin

Healthcare Alert | September 29, 2021
By: John D. Balaguer, Stephen J. Milewski and Karine Sarkisian

The nationally watched Delaware Court of Chancery, last week in a precedential decision issued in DeMarco v. Christiana Care Health Services, Inc., denied a petition for a mandatory injunction filed by the wife of an ICU patient to compel his healthcare providers to treat his COVID-19 with the controversial deworming drug ivermectin.

Recommendations to use ivermectin for the prevention and treatment of COVID-19 have become widespread on the internet, without any solid scientific evidence of effectiveness. Ivermectin, an oral medication long used to treat parasitic diseases in humans and animals, has not been approved as a treatment for COVID-19 by any well-regarded regulatory or governmental healthcare agency. In fact, the FDA, CDC, WHO and AMA, not to mention the drug’s manufacturer Merck, have all warned against its use in treating COVID-19. Those studies that claim to have developed evidence supporting the use of the drug also have been widely criticized as flawed by these same authorities. Nevertheless, the plaintiff in DeMarco, who obtained a prescription for ivermectin from a physician outside the hospital system, argued that her husband had the right to be treated with the drug, and that the hospital’s refusal to do so violated the patient-physician contract, the Hippocratic Oath to “do no harm,” and the patient’s constitutional and statutory right to self-determination.

After expedited legal briefing and an emergency hearing, during which the hospital presented evidence explaining why ivermectin was not part of its evidence based COVID-19 treatment protocol, the court found that the plaintiff had not satisfied any of the legal criteria justifying a mandatory injunction. The court determined that the legal duty a physician owes its patient is to treat the patient within the applicable standard of care. Likewise, the patient’s right to self-determination is limited to the right to accept or reject standard treatment. There is no legal right to demand a treatment which does not conform with the standard of care. The court observed that “[t]reating COVID-19 with ivermectin is undisputedly contrary to generally accepted health care standards” and so outside the scope of the legal duty owed by a physician. The court also determined that the plaintiff could not demonstrate irreparable harm, as there was insufficient reliable evidence demonstrating that ivermectin is an effective treatment for COVID-19. But as the court explained, forcing healthcare providers to administer non-standard treatment could result in harm:

“[c]ompelling Defendant to provide a treatment outside the standard of care—on the prescription of a doctor who did not see the patient, has never treated the patient, and does not have privileges at that hospital—risks substantial harm to Defendant and the health care system at large”

The plaintiff in this case joined scores of other COVID-19 patients across the nation who reportedly have been trying to force hospitals to treat them with ivermectin. While courts in Kentucky and Illinois have reportedly denied such requests, courts in New York and Illinois have granted them on an emergent basis without further comment. In Ohio recently, a court granted an initial emergency request for a temporary injunction, but only days later overruled that decision in a written opinion that refused to compel the hospital to give the drug. DeMarco appears to be only the second written court opinion in the nation addressing this issue. This well-reasoned decision not only represents a powerful judicial rebuke of the ivermectin movement, but also provides broad support to block other attempts to use the courts to compel healthcare providers to employ unproven treatment regimens.

John D. Balaguer (balaguerj@whiteandwilliams.com; 484.433.6014), Stephen J. Milewski (milewskis@whiteandwilliams.com; 302.467.4502), and Karine Sarkisian (sarkisiank@whiteandwilliams.com; 302.467.4533) are members of the Firm’s Healthcare Practice Group and represented Christiana Care before the Delaware Chancery Court in the Demarco case.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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