Federal Court Sides With Pharmacists in Ivermectin Case

With the start of COVID-19 now almost 4 years in the past, we are now seeing legal cases resulting from the difficult situation that arose when frightened patients began seeking alternative pharmaceutical treatments, including the off label use of ivermectin, an anti-parasitic agent that is FDA-approved for treating intestinal conditions caused by parasitic worms. 

Facts of the Case 
In October 2021, Mr S became ill with COVID-19. After a local clinic denied his request for an ivermectin prescription (which is not approved to treat COVID-19), Mr S found a physician, Dr J, who would prescribe the medication. Dr J sent the prescription to a Walmart pharmacy. When Mrs S went to pick up the prescription for her husband, the Walmart pharmacist refused to fill the prescription, telling her that ivermectin was not an appropriate treatment for COVID-19. When Mrs S protested, the pharmacist allegedly “lectured” her, and later Dr J, about the dangers of treating COVID-19 with ivermectin. 

Mrs S herself then contracted COVID-19, at which point Dr J prescribed ivermectin and hydroxychloroquine (also not approved to treat COVID-19) for her and sent the prescriptions to the same Walmart pharmacy where again the prescriptions were refused. The physician then sent both Mr and Mrs S’s prescriptions to a Hy-Vee pharmacy. The Hy-Vee pharmacist refused to fill the prescriptions, citing the pharmacy’s “corporate policy,” which barred pharmacists from dispensing ivermectin and hydroxychloroquine to treat COVID-19. 

Mr and Mrs S then obtained and consumed a veterinary formulation of ivermectin used to treat horses. After they recovered from COVID-19, they filed a lawsuit in federal court claiming that both Walmart and Hy-Vee pharmacies had violated their “common law right to self-determination.” 

The Court Decides 
The plaintiffs based their argument on one sentence in a previous court decision, which said “[o]ur society is morally and legally committed to the principle of self-determination, a corollary of which is the right of every adult of sound mind to determine what shall be done with his own body.” However, the defense pointed out that the cited case had been about the right to refuse medical treatment, and that there is no common law right to ‘compel an unwilling health care provider to participate in a plan of care that is contrary to its judgment, policy, and/or public health agency guidance.’ The lower court agreed with the defense, and dismissed the claim of Mr and Mrs S, but they appealed.  

On appeal, they continued to argue that they had a common law right to "self-determination" but provided no other support for this argument other than the sentence from the other case regarding self-determination. The appellate court was unimpressed with this argument, and held that 1) no state has recognized a right of the patient to force a medical provider to provide treatment against the provider’s judgment; 2) the plaintiffs had failed to define the elements of their claim; and, 3) the pharmacists had a duty to determine the legal validity of a prescription and to ensure it was clinically appropriate, which they properly did. 

The appellate court also squashed Mr and Mrs S’s claims of intentional infliction of emotional distress for failure to plausibly show that the pharmacists’ actions amounted to "extreme and outrageous" conduct, as required by state law. 

The Takeaway 

You will rarely get in legal trouble by refusing to fill a prescription for a drug not approved for what it is being prescribed for. At the time that the Walmart and Hy-Vee pharmacists refused to provide ivermectin, “every major medical authority and government agency that had addressed the issue had said that ivermectin and hydroxychloroquine should not be used to treat COVID-19,” noted the court. “Obviously, there is nothing extreme or outrageous about a pharmacist’s following the advice of these authorities,” it concluded.