September 26, 2022

unic power

health life

Medical treatment cannot be compelled by a Michigan court or its ‘Right to Try’ Law

3 min read

There have been several recent court cases around the country involving COVID-19 patients seeking administration of the drug ivermectin.  This drug has FDA approval for use in the treatment of certain parasites in humans, but not for treating COVID-19. These cases all involve COVID-19 patients seeking court orders to force their physician or hospital to administer ivermectin following a refusal to do so due to their judgement that ivermectin is unnecessary or potentially harmful. These cases highlight misconceptions regarding the power of the courts to order medical care and the application of “right to try laws.”

Courts cannot legally order medical treatment be provided over the objection of a physician/hospital. With few exceptions (e.g., the Emergency Medical Treatment & Labor Act) physicians/hospitals are not required to provide any medical treatment at all. There is no Michigan law authorizing a court to order a physician/hospital to provide medical treatment when that treatment has been deemed by the physician/hospital to be unnecessary, potentially harmful, or not in accordance with the standard of practice.  One of these cases was recently tried in the Oakland County Circuit Court (Ford v. Beaumont, Case No. 2021-190083-CZ).  

Beaumont Royal Oak patient fails to obtain ivermectin treatment after going to court

The court initially issued a temporary restraining order requiring Beaumont to administer “a course of ivermectin” to a COVID-19 patient in its Royal Oak hospital. Following further hearings, and a finding that it lacked any legal basis to order medical care, the court dissolved and terminated its temporary restraining order and denied the patient’s motion for a preliminary injunction. This result is similar to those reached in some of the other ivermectin cases in other states.        

Michigan’s “Right to Try Act,” MCL 333.26451, was one legal basis cited by the patient in the Beaumont case as authority for the court’s order for medical treatment. Despite what its title might suggest, Michigan’s “Right to Try Act” does not give patients the right to try or otherwise obtain any medical treatment they wish to receive, nor does it require physicians/hospitals to provide any medical treatment a patient requests (section 3 of the Act specifically provides that a hospital is not required to provide a treatment unless it has been approved by the hospital).

The ‘Right to Try’ Act has limitations for patients seeking approval

Instead, the Act enables the use of only those drugs, biological products, or devices that have successfully completed phase 1 of a clinical trial but have not yet been approved for general use by the FDA and remain under FDA investigation in a clinical trial. This law enables eligible patients to obtain these drugs, biological products, or devices only when recommended by their physician and following the patient providing written informed consent.  When this occurs, the statute provides immunity and other measures to enable the use of these drugs, biological products, or devices. 
    
The courts are not a pathway to compel delivery of medical treatment.  Even the limited medical treatment available via Michigan’s “Right to Try Act” requires a physician’s recommendation and a hospital’s approval.    
 
Learn more about Kerr Russell’s services and resources at www.kerr-russell.com

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