I recently received a call from a woman who wanted a medical malpractice attorney to sue to compel a hospital to use a non-FDA approved treatment for her husband’s COVID infection. Of course, the medications she wanted given are ones she had seen publicized in social media: ivermectin and hydroxychloroquine. She was convinced that many doctors thought these drugs would greatly benefit a COVID patient, and she had difficulty understanding that judges rarely will intervene in medical care. Should a judge intervene in medical care?

Several times a year I also receive a call about care at Seattle Children’s Hospital. The call is usually from a very anxious parent whose child has a serious or even life-threatening condition, and who is convinced that their child’s care isn’t being properly managed. I try to explain that it is extremely unlikely any judge would review all of the medical facts in such a complex situation, and then decide to override the decisions of medical professionals.

I also explain that, as a personal injury attorney who handles medical negligence cases, my role is to bring a claim after an injury or damages have occurred, and it often takes a year or more before the case would come before a jury. The anguished response is often “you mean my child has to die first, and then we can sue for malpractice?” They then ask for a referral to an attorney who would help them now, not after it is too late to prevent harm. I tell them that I don’t know of any attorneys who would take on such a case. 

Recently, an internet medical publication reported on several cases where an attorney did, in fact, bring a lawsuit to compel certain treatment, all of them in the context of COVID and controversial issues about non-approved medications. In January, 2021, a judge ordered a Buffalo, New York hospital to give ivermectin to an 80-year old woman on a ventilator for COVID. One dose was given before the hospital refused to continue the treatment. It is reported that her condition improved, but the connection between the single ivermectin dose and the improvement is unproven.

A similar case happened in Illinois, where a judge ordered ivermectin be given to a COVID patient on a ventilator. In that case, a treating internist joined in the plea to the court. Other similar cases have been reported. However, there are also many cases where the courts have declined to step into the medical arena and over-ride decisions by a physician or hospital. One judge in Kentucky said: “[The internet] is rife with the ramblings of persons who spout ill-conceived conclusions if not out-right faslehoods” and if a claimant wants the court to impose medical decisions on providers, “she needs to present the sworn testimony of solid witnesses, espousing solid opinions, based on solid data.”