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Thursday, September 09, 2021

Demanding Ivermectin--what legal right?

Several state trial courts have entered TROs compelling hospitals to give patients Ivermectin, despite the view of the hospitals and staff doctors that it is in inappropriate treatment.

These suits have bothered me because I could not figure out the cause of action or legal right being asserted. What legal right did a patient have to a particular treatment from a doctor contrary to the doctor's best judgment, to say nothing of a right that would allow the court to compel that treatment. A doctor who refused a particular treatment, involving an unapproved use of a drug, could not be liable for malpractice so long as his treatment was otherwise within the ordinary standard of care. So how could the court order treatment that a doctor would not be liable for failing to provide. It turns out, none, according to an attorney at Reed Smith.

My guess is that something like the following happened: The court focused entirely on the irreparable harm to an ill patient who might die without what some regard (wrongly, but well . . .) as a life-saving treatment and the high burden on the plaintiff in the balance of equities. That overcame what should have been an incredibly small likelihood of success on the merits, since there was no legal right to enforce and thus no right on which to succeed.

Posted by Howard Wasserman on September 9, 2021 at 07:52 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink

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