Several lawsuits have made their way into headlines recently, primarily concerning attempts by patients and their families to require hospitals to administer (or allow for the administration of) ivermectin, a disputed potential treatment for COVID-19. Whether or not ivermectin is an effective remedy for COVID-19 is not the focus of this article, but the debate illuminates the often-complicated intersection of law and medicine.
While the flurry of legal activity surrounding the forced administration of ivermectin has brought this relationship to the forefront, the ability of courts to encroach on the medical judgment of independent providers existed long before the COVID-19 pandemic and will continue long after the pandemic subsides. The truth is that similar cases have occurred in other contexts, but rarely generated headlines before the pandemic. The fact that courts can, and in some cases do, intervene to require hospitals and their providers to administer medication the provider has already determined is ineffective or medically inappropriate is unnerving for physicians and hospitals who need to reconcile court orders with standards of medical care.
In this article, we will address examples of court-ordered medical treatment, discuss the standard for obtaining injunctive relief, and offer guidance to hospitals faced with a court order of this kind.
Examples of Requests for Court Intervention in Medical Treatment
In many instances where a patient or their family requests medical treatment contrary to the recommendation of the treating physician, the situation arises because the patient is getting worse, the recommended treatment is not working, and the patient requests alternative treatment that the physician does not believe to be medically appropriate. As mentioned at the outset, the timeliest examples involve alternative COVID-19 treatments, but this situation arises for many ailments, including neurological diseases and various forms of cancer, and will arise for other medical issues as well.
This is not the only possible difficulty. The concern is sometimes not about the type of treatment provided, but how long such treatment should continue. On several occasions, we have seen patients who were declared to be brain dead, but the family refused to accept the diagnosis and demanded that treatment continue. In those cases, the hospital usually tries to stick to its policies and follow state law regarding appropriate treatment and diagnosis, which provide guidance on what happens once a patient is declared brain dead. However, if the individuals who have decision-making authority for the unconscious patient refuse diagnostic testing, the hospital may not be able to confirm the brain death diagnosis pursuant to state law and/or the hospital’s policies. In other situations, the family might pursue court action to require the hospital to continue treatment on a patient who has already been declared brain dead by the hospital.
Injunctive Relief Is Generally Disfavored by Courts and May Be Obtained Only in Limited Circumstances
Individuals seeking court intervention in medical treatment may pursue injunctive relief to “prevent a threatened wrong or the further perpetration of an injurious act.”1 Although the standard for obtaining injunctive relief through a temporary restraining order (“TRO”) and/or preliminary injunction vary across jurisdictions, the primary considerations are generally similar — the party seeking the relief must demonstrate that they: (1) possess a certain and clearly ascertainable right needing protection, (2) have no adequate remedy at law, (3) will suffer irreparable harm without the injunction, and (4) have a likelihood of success on the merits.2 If these threshold requirements are met, then the court must “balance the hardships and consider the public interests involved.”3 Additionally, when “the harm to the public or to the opposing party outweighs the benefits of granting the injunction,” the court must not order the requested relief, even if all other requirements are met.4
The injunction analysis is inexact and requires the court to make judgments despite uncertainties and unanswered questions. Accordingly, TROs and preliminary injunctions – particularly when they take the form of a mandatory injunction requiring certain action – are “extraordinary” remedies that “should be used sparingly, with due restraint, and only when the circumstances clearly require it.”5
Despite the high bar required for obtaining a TRO, the underlying situations where they are sought are often easily articulated as “high stakes” where the patient or patient’s family seeking the TRO asserts that they or a loved one will die unless the court requires a physician take certain action. The hospital must be mindful of this hurdle as it articulates its strategy and response.
Key Considerations When Faced with a Request for Injunctive Relief
A healthcare provider facing a motion for injunctive relief or TRO should take immediate action both in and out of court to protect itself and present the most effective defense:
Steps to take in court:
First, in light of the often rapid timeline governing requests for injunctive relief, a written response should be filed as quickly as possible. The response should raise all appropriate objections, including the patient or patient’s family’s inability to satisfy each element necessary to meet the high bar for obtaining the requested injunctive relief.
As part of its responsive filing, a provider should also make every effort to ensure that the court understands the practical realities of ordering a hospital to require a physician to provide certain treatment. A hospital – a brick and mortar facility – must provide medical care through its individually credentialed physicians. These physicians are bound by professional ethics and stringent standards of care. Requiring a hospital to force a physician to perform medical care intrudes upon the professional judgment of clinicians in a way that must not be overlooked by the court. It is important to remind the court that physicians practice medicine – not hospitals – and any order by the court that blurs this line could create moral and ethical issues to grapple with for both the physician and the hospital in attempting to reconcile a court order requiring care deemed medically inappropriate by a physician.
To avoid this complicated clash between a court order and the medical judgment of an independent provider, counsel for the hospital should present alternatives for the court’s consideration, depending on the provider’s appetite to accommodate the request or other avenues for treatment. As noted above, this varies widely depending on whether the physician is willing to provide the treatment to the patient, but lacks the ability to prescribe it, as compared to a situation where the patient or patient’s family is requesting the physician administer treatment that the physician –using their independent medical judgment – cannot recommend. In any event, medications requested by the patient might not be available as part of the hospital’s formulary. The hospital should be prepared to advise the court of the requirements for the development of a hospital formulary, and the process for exceptions for non-formulary drugs.
A potential alternative to court action is transferring the patient to another facility that has a physician willing to provide the requested treatment. In some cases, the patient may even be able to be discharged home with a discharge plan that accounts for treatment by another provider outside of the hospital. Depending on the location of the alternate facility and the patient’s condition, this may be a viable option that appropriately balances the interests of all involved and avoids forcing a physician to administer a drug or treatment they have already deemed unnecessary or medically inappropriate for a patient.
Another option is providing temporary privileges to another physician willing to administer the requested treatment at the hospital in accordance with the hospital’s medical staff bylaws. While processing temporary privileges on an expedited basis may provide an administrative headache for the hospital’s governing body, the medical staff committee and medical staff office, it could allow for the patient to receive the
desired medical care without compromising the professional standards of the unwilling provider. This option would, of course, hinge on the alternative provider’s qualifications and willingness to serve, and the governing body’s and the medical staff leader’s willingness to allow an alternative provider to render the requested care at the hospital.
Finally, if a patient or patient’s family is seeking a TRO, the hospital should respectfully remind the court of the necessary boundaries between the judiciary and the practice of medicine. As a Texas appellate court in Texas Health Huguley, Inc. v. Jones recently noted, “judges are not doctors,” and “[j]ust as [courts] cannot legislate from the bench, [courts] cannot practice medicine from the bench.”6
Steps to take at the hospital:
While preparing a defense in court, a provider should simultaneously take action within the hospital. First, the physician should speak with hospital counsel as soon as possible and discuss the potential contingencies. By involving hospital counsel early, hospital counsel may acquire helpful insight on the practical application of the treatment at issue. Not only will this allow counsel to present a robust defense, it will likely assist with developing potential alternatives to present to the court.
Second, hospital counsel should understand what other resources and medical treatment team members would be needed to furnish the requested treatment. This may include access to non-formulary drugs, anesthesiologists, the operating room team, and/or nursing team. For the example listed above involving continued medical care for a brain-dead patient, placing a trach and/ or feeding tube on such a patient may be necessary and other medical providers may be unwilling to perform the procedure. Understanding the resources and medical specialists that would be needed to practically offer the requested treatment and speaking with these professionals will likely illuminate additional issues and concerns to be addressed with the court.
Third, hospital counsel should ensure that documentation regarding the patient’s care and conversations with the patient and the patient’s family is thorough and up-to-date. Finally, hospital counsel must consider what other evidence may be helpful to offer in court, including affidavits from medical experts, medical records, and relevant statements from the medical and scientific communities.
This information is vital to have prior to the hearing on the TRO so the court can be informed on the practical realities of the action requested by the patient or patient’s family. Discussing such practicalities also shifts the discussion away from a raw emotional request by the family and gives the court a roadmap of all the issues that need to be addressed before a viable TRO could be effective. Not only will this discussion decrease the chance that the TRO will be granted, but it also makes it far less likely that the hospital is told to effectuate a court order it cannot comply with, which we will address next.
How to Address a Court Order Requiring Treatment
In the event the court orders injunctive relief, a provider should take immediate action to effectuate the order. Time is of the essence to avoid potential exposure for a wrongful death claim or contempt of court. The hospital should speak with the treating physician about administering the requested treatment and place a signed copy of the order in the patient’s medical record. It is possible that the physician’s approach to the situation may shift when faced with a direct order from a court. If the physician agrees to move forward with the treatment/service, then the situation is resolved and hospital counsel may report full compliance to the court. To protect against allegations that the treating physician deviated from the appropriate standard of care, the treating physician should thoroughly document that they administered care pursuant to a court order.
A physician is charged with independently evaluating a patient’s condition and determining the appropriate course of action using their professional medical judgment. If the treating physician remains unwilling to administer the treatment even after the court issues an order, then the hospital must act quickly to inform the court and plaintiff’s counsel. Hospital counsel should remind the court that all medical decisions are made by licensed medical professionals, not the administrative body of the hospital. A hospital is unable to require a physician to administer medication or perform a service that the physician believes deviates from the standard of care. As outlined above, it is vitally important for the court to understand the practical application of the requested treatment before the court makes a determination on a TRO request.
In light of the urgency of the situation, the court and the patient or the patient’s family will expect the hospital to take all possible steps to effectuate the order even if the treating physician refuses to comply. At this point, the court may consider the alternatives proposed by hospital counsel, including that emergency privileges be granted to a willing provider and that the provider be given immediate access to the patient.
The risk calculus for the treating physician changes when they are individually named as a defendant in the lawsuit. The physician must understand that when named individually, the physician may face separate liability to the court and patient/patient’s family if the physician refuses to comply with a court order to administer treatment. To limit exposure as much as possible, the treating physician should ensure they are abiding by all hospital policies and medical staff bylaws and should diligently document the patient’s medical condition and their concerns regarding the requested treatment in the medical record.
Risk of Contempt of Court
Failing to comply with a court order exposes the hospital and treating physician (if named as a defendant) to contempt of court. A Virginia hospital, for example, was recently held in contempt of court after refusing to administer ivermectin to a woman battling COVID-19. The patient had been prescribed ivermectin by her family doctor but could not continue treatment upon admission to the hospital because the hospital refused to administer the drug. The patient’s family successfully obtained an order requiring the administration of ivermectin, but the hospital still refused to comply. The court ultimately held the hospital in contempt and imposed daily fines of $10,000.7 While courts may be reluctant to impose significant fines on hospitals and treating physicians during the middle of a global pandemic, the risk still remains.
Attempts to require hospitals to administer treatment its providers have deemed medically inappropriate are dubious, and likely lack the legal bases required in order to obtain injunctive relief. Nonetheless, lawsuits in this arena are becoming more common and multiple courts are granting orders that require action by the hospital. Navigating court orders requiring the administration of treatment presents significant challenges for hospitals and treating physicians. If faced with an order of this kind, providers should keep the following key considerations in mind:
Optics are critical. It is imperative that the court and the patient/the patient’s family view the hospital as taking all possible steps to timely effectuate the order.
Proactive assessment of how (and if) a court order could be implemented is crucial. If there are no providers who would be willing to effectuate the court order, it would be better to raise this issue at the TRO hearing than after a court makes an order requiring the treatment.
Documentation is key. Document the treating physician’s refusal to administer treatment before the request for injunctive relief, the family’s request for treatment, any conversations with the physician after a court order is issued, and how the situation is ultimately resolved.
In the end, physicians are part of an independent medical staff with their own standard of care and professional ethics concerns. While courts may attempt to encroach upon medical judgment, this fact must not be lost in the process. As the Court in Texas Health Huguley aptly noted, “[t]he judiciary is called upon to serve in black robes, not white coats.”8 If your hospital is faced with this situation, it is imperative that this distinction be artfully outlined for the court’s consideration before a ruling is made.
Kalbfleisch ex rel. Kalbfleisch v. Columbia Comty. Unit Sch. Dist. Unit. No. 4, 396 Ill. App. 3d 1105, 1118 (5th Dist. 2009).
Bradford v. Wynston Prop. Owners’ Ass’n, 355 Ill. App. 3d 736, 739 (2d Dis. 2005).
Makindu v. Ill. High Sch. Asso’n, 2015 IL App (2d) 141201, at ¶ 31.
JL Props. Grp. B, LLC v. Pritzker, 2021 IL App (3d) 200305, at ¶ 57.
Cullen Elec. Co. v. Cullen, 218 Ill. App. 3d 726, 732 (1st Dist. 1991); see also In re Marriage of Winter, 2013 IL App (1st) 112836, at ¶ 20 (noting that mandatory injunctions are generally “not favored by the court” and should be granted “only in the rare instance” that the petitioner “has established a clear right to relief and the court determines that the urgency of the situation necessitates such action”).
No. 02-21-00364-CV, 2021 WL 5405794, at *1 (Tex. Ct. App. Nov. 18, 2021).
See Davies v. Fauquier Med. Ctr. LLC, Virginia Fauquier Cty. Cir. Court, No. CL21000528-00.
Id. at *7.
© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 83