Court Upholds Hospitals’ Right to Direct Care

Joseph L. Fink III, JD, DSC (Hon.), BSPHARM, FAPhA;

Professional standard of care has judicial affirmation

Facts of the Case

The patient in this matter tested positive for COVID-19 and was admitted to the defendant hospital. His nephew, who had power of attorney, was involved in making decisions for his care and initiated this lawsuit on behalf of his uncle.

A judge's gavel sits on a wooden podium in front of a pharmacy. The pharmacy is filled with various bottles and containers - Image credit: tracy | stock.adobe.com

Image credit: tracy | stock.adobe.com

The nephew had become aware of some sources advocating the use of ivermectin to treat COVID-19 and arranged for a prescription for ivermectin from a retired physician whose practice had focused on obstetrics and gynecology. The prescriber claimed to have experience with use of the drug, despite its primary application as a deworming agent for farm animals or to treat parasitic infections in humans. The drug is not approved by the FDA to treat COVID-19 and has a risk of serious adverse effects when used in humans.

The hospital refused to administer the medication to the patient based on testimony that this treatment did not meet the hospital’s standard of care. The nephew filed a lawsuit on behalf of the patient, his uncle, in the local state circuit court. That trial-level court issued an injunction ordering the hospital to administer the requested medication. The next day, the trial court modified the order to allow the plaintiff to identify a physician who could be credentialed by the hospital to administer the medication.

About the Author

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is professor emeritus of pharmacy law and policy and former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.

The hospital appealed that order to the state’s court of appeals. At this level, the hospital prevailed for 2 reasons. First, the plaintiff had failed to identify a source of law that “would give a patient or a patient’s agent the right to force a health care provider to administer a treatment the health care provider concludes is below the standard of care.” Second, no source of law was identified that could be used to compel the hospital “to put an outside provider that would provide such care through its credentialing process.”

The plaintiff, representing his uncle, then took the matter to the state’s highest court. The state Supreme Court ruled that the court of appeals had made the correct decision when it agreed with the hospital, reversing the original decision by the trial court.

The Court’s Reasoning

The state Supreme Court affirmed the lower intermediate court’s decision. The crux of its decision was the conclusion that “the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that [the plaintiff] had a reasonable probability of success on the merits of some type of legal claim.”

The state Supreme Court justices stated that, “From a review of the circuit court’s order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance. In other words, we do not know what viable legal claim the circuit court thought [the plaintiff] had presented.” The circuit court’s written order of an injunction “does not cite any statute, case, or other source of law as a foundation allowing for its issuance.”

The court of appeals had determined that the plaintiff failed to find any legal source giving the patient or patient’s representative the right to force a private health care provider to administer a specific treatment. Furthermore, the intermediate appellate court said the trial court had no legal authority to force the hospital to credential an outside provider to provide care that the hospital had deemed below the standard of care.

The trial court had failed to indicate where the medication was to be obtained or how the tablets were to be administered to a patient who is intubated and sedated. Finally, the state Supreme Court faulted the trial court for ordering that the hospital is to administer the medication “as further ordered by [the nephew],” who, importantly, is not a health care professional.

Court Upholds Hospitals’ Right to Direct Care

About the Author

Reference

Gahl v Aurora Health Care, Inc., 989 NW2d 561 (Wisc 2023).