Patients Sue Pharmacies for Refusing Hydroxychloroquine, Ivermectin Prescriptions

Issue of the Case

When 2 patients who received a COVID-19 diagnosis presented prescriptions for ivermectin at 2 pharmacies, the pharmacists on duty declined to dispense them.

Will the patients prevail when they file a lawsuit against the pharmacies, advancing 3 legal arguments to support their claims?

Facts of the Case

The husband of the couple was the first to receive a diagnosis of COVID-19. The couple first sought a source to obtain monoclonal antibodies for treatment in the state where they lived but were unsuccessful. They made the same attempt in a neighboring state without success. They had heard about use of ivermectin, an antiparasitic agent, to manage COVID-19 and investigated local prescribers who might authorize its use. Again, they were not successful.

The couple then pursued a telehealth appointment with a physician in a state farther away who described herself “as an activist for medical freedom, patients’ right to choose, and physicians’ right to practice medicine unencumbered.”

She prescribed ivermectin for the husband and dispatched the prescription to a national pharmacy chain’s location near where the couple resided.

The pharmacist there declined to honor the prescription, stating that “it was not appropriate to treat patients [with] COVID-19 with ivermectin.”

Neither the physician nor the patient’s wife succeeded in persuading the pharmacist to honor the prescription.

Subsequently, the wife became infected with COVID-19 and the same physician issued prescriptions for her for both hydroxychloroquine and ivermectin. She approached the pharmacist at the same pharmacy where her husband’s prescription had been refused and received the same decision. The couple then presented the prescriptions at a different chain pharmacy.

Once again, they encountered refusal, with the reason cited being its “corporate policy to refuse ivermectin and hydroxychloroquine prescriptions to [manage] COVID-19.”The couple then decided to procure and use veterinary ivermectin, which they reported led to “rapid and significant improvement.”

The pair filed a lawsuit in federal court, advancing 3 arguments to support their claim for recovery of financial damage from the pharmacy chains. The first was that the defendants had violated what they described as their “common law right to self-determination.”

Next, they argued that the decisions and actions of the chains’ employees resulted in intentional infliction of emotional distress. Third, they argued that the chains had engaged in tortious interference with contracts.

The attorneys for the defendant chains filed a motion with the trial court judge to dismiss the lawsuit based on a state statute requiring the plaintiffs to provide an expert-review affidavit supporting their lawsuit. That was a submission requirement with which they had not complied when filing the lawsuit.

The Ruling

The trial court judge granted the defendants’ motion to dismiss the lawsuit. The relevant state statute governing health care malpractice claims clearly required such a supporting document, and the judge dismissed the lawsuit for failure to state a claim upon which relief can be granted.

The Court's Reasoning

The judge issued a 21-page ruling to address the various points raised by the couple. He reviewed and rejected their argument about them having a right to self-determination, labeling this approach that would force providers to administer requested treatments “mind-boggling.”

The judge found no legal precedent stating that there is a legal obligation to provide any and all medications or treatments demanded by a patient. He labeled their argument as asserting 2 rights: the right to do whatever one wants with one’s own body and to the right to force others to help.

Neither exists in the judge’s view. He differentiated a patient’s right to refuse treatment from that same patient having a legal right to force health care providers to administer a requested specific treatment to the patient against their own professional judgment. The judge identified court decisions from other states where the ruling was that patients do not have the right to force health care providers to give them treatments they do not want to provide.

An additional argument from the couple was that the decisions of the pharmacists at the 2 chains constituted intentional infliction of emotional distress. The judge noted that there may be certain situations in which a provider’s refusal to provide lifesaving medication to someone who is ill because of policy or political beliefs could rise to the level of being extreme and outrageous, a requirement for this form of liability. The facts as they existed in this matter were, in his view, not remotely close.

The third argument advanced by the attorneys for the couple was tortious interference with contractual relations. The judge ruled that this argument also came up short. The couple did not allege that either pharmacy chain stopped them from getting the desired medications elsewhere,nor had the chain’s officials leveled threats to interfere with their future shopping attheir pharmacies.

The COVID-19 pandemic has presented many interesting, even unique, legal issues for courts to resolve. This case is among the most interesting.

About the Author

Joseph L. Fink III, JD, DSC (Hon), BSPharm, FAPHA is professor emeritus of pharmacy law and policy at the University of Kentucky College of Pharmacy in Lexington.