COVID lawsuits push doctors to provide substandard care

An appeals court ruling last week blocked a court order that could have required a hospital to go against its own protocols and provide a COVID-19 patient with a widely discredited and ineffective treatment.

But the fact that the original order was ever issued points to a remarkable development at the crossroads of law, medicine and politics: an attitude growing in some quarters that elevates patients’ wishes above the professional knowledge and judgment of health care providers.

“There’s this idea that whatever a patient wants, they should get,” says Pilar Ossorio, a bioethics law professor at the University of Wisconsin Law School and a scholar in ethics at the Morgridge Institute for Research.

The court case took place in Waukesha County. The medicine involved is ivermectin, an antiparasitic drug that has been used in animals as well as humans. Medical studies as well as papers from the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) have all concluded that ivermectin doesn’t help patients with COVID-19.

“There’s a very strong consensus, overwhelming consensus, that ivermectin is ineffective,” says Dr. Rob Hoffman, a Madison physician who specializes in hospital care.

Despite the evidence, the drug has been embraced by some enthusiasts as an alternative treatment. Among ivermectine’s boosters are skeptics of the COVID-19 vaccine. 

“It’s a really amazing and really new phenomenon,” says Hoffman, who has had COVID-19 patients who have asked for the drug, sometimes getting angry or threatening lawsuits when he denies the request. “Somewhere along the line a significant part of the population has become convinced that all COVID treatment is a political issue.”

The Waukesha case is one more instance in which the COVID-19 pandemic has been politicized.

“The responsibilities of providers and the rights of patients are not necessarily confined to the private realm now,” says political scientist Philip Rocco of Marquette University.

Internet medical advice

On Sept 19, 2021, Waukesha County resident John Zingsheim was admitted to Aurora Medical Center-Summit after being diagnosed with COVID-19 three days before. Two weeks later, on Oct. 3, he was intubated and put on a ventilator. At the hospital, Zingsheim was treated with a steroid and three other drugs, while he declined the antiviral drug remdesivir, according to the appellate court opinion.

Zingsheim’s nephew, Allen Gahl, holds a power of attorney for health care for his uncle. According to the appellate court ruling, Gahl read about the use of ivermectin for COVID-19 through an internet search. Gahl spoke with a Wisconsin physician who recommended ivermectin. The doctor wrote a prescription for Zingsheim without having met him, based on information from Gahl.

Aurora doctors refused the request for ivermectin, saying it would be “below the standard of care” for COVID-19 patients, the appeals court opinion states. 

Gahl filed a petition in Waukesha County Circuit Court on Oct. 7, asking a judge to order the hospital to honor the ivermectin prescription. After a hearing on Oct. 12, Judge Lloyd Carter issued an order directing the hospital to administer the prescription. In a follow-up hearing the next day, the judge modified the order, stating that it would be up to Gahl to supply the ivermectin and to supply a doctor “that meets the approval of the hospital” to administer the prescription.

Aurora appealed the judge’s order to the state Court of Appeals District II, which stayed the order. The Wisconsin Supreme Court denied a petition by Gahl for the high court to take the case directly.

In an opinion issued May 25, the appeals court reversed the judge’s order on a vote of 2-1. The opinion was written by Judge Lori Kornblum and joined by Judge Lisa Neubauer.

“We do not decide the medical question of what the standard of care should be.  We are not doctors,” the opinion states. But on legal grounds, it concludes, “we hold that the circuit court had no legal authority to compel Aurora, a private healthcare provider, to provide care that is below its standard of care. We further hold that the court had no legal authority to compel Aurora to credential an outside provider to provide care that is below the standard of care.”

In a dissent, Judge Shelley Grogan insisted that the lower court “did not erroneously exercise its discretion” in granting the order, and that it should remain in place.

‘It’s my body’

Ossorio, the UW Law School professor, says that it’s rare for courts to insert themselves into medical decisions, particularly to overrule a health provider.

When it does happen, it’s more likely to involve a life-or-death situation and a proposed treatment for which the expected outcome is ambiguous, she says. In other situations, it might involve an order to continue a life-preserving treatment that doctors believe is no longer effective but family members are unwilling to stop.

Neither of those applies to ivermectin, however, Ossorio observes: “One of the things about ivermectin is there was never any evidence that it was an effective treatment.”

She compares cases like the one in Waukesha to the campaign that passed the “Right to Try Act” in 2018, intended to give patients easier access to unapproved drugs in certain cases.

“There’s a political movement behind it — ‘It’s my body. We don’t care what our doctors think about ivermectin,’” Ossorio says, paraphrasing the point of view of patients who might clamor for such drugs without regard to the advice of medical professionals. “It comes from the same intellectual and political position that doesn’t really recognize it’s not just me [the patient] that’s making the decision.”

Courts have a role in encouraging professionals to police themselves, including medical professionals, she says. But she finds a judge’s willingness to overrule a medical professional’s judgment about an appropriate standard of care “disturbing.”

“It’s really bad for the medical profession and for all of us who want the health care system to be successful for patients to be able to take this kind of case to court and win,” says Ossorio. “It may incentivize the health care system to provide not just unnecessary care but dangerous care.”

Rocco, who has studied political polarization in health care and public health policy, notes that Karen Mueller, the lawyer representing the nephew in the Waukesha case, is running in the Republican primary for state attorney general on a platform opposed to COVID-19 vaccines and challenging hospitals in their treatment of COVID-19 patients.

The appeals court decision to overturn the ivermectin order is unlikely to quiet the conflict. “Because every aspect of the pandemic has been politicized, you are now seeing real challenges to medical providers’ judgment,” Rocco says. “And whether or not they have a future in the courts in Wisconsin, it absolutely is something we might expect to see in the attorney general’s race.”

Hoffman says that even if ivermectin were an effective antiviral drug — which research has not demonstrated — using it after the first week or so of illness makes no sense. Antiviral drugs are only used in that early phase of the illness.

In the weeks that follow, the illness is inflammatory, “where the damage to the body is really from the immune system going out of control.”

For Hoffman, the Waukesha case adds to the alarm he has already experienced when patients turn aside recommended treatment for COVID-19 and demand ineffective remedies. 

“The idea that courts are going to decide what is proper medical therapy is pretty scary,” he says. “It doesn’t seem to me that any judge has any qualifications to make that judgment on behalf of the patient. These medical decisions are extremely complicated — that’s why people go through years and years of training.”