J-S26033-22
2022 PA Super 163
JUDITH M. SHOEMAKER, AS POA : IN THE SUPERIOR COURT OF
FOR GLEN CAUFFMAN : PENNSYLVANIA
:
:
v. :
:
:
UPMC PINNACLE HOSPITALS D/B/A :
UPMC HARRISBURG AND UPMC : No. 225 MDA 2022
:
Appellant :
Appeal from the Order Entered January 26, 2022
In the Court of Common Pleas of Perry County Civil Division at No(s):
CV-2022-00042
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: SEPTEMBER 22, 2022
UPMC Pinnacle Hospitals d/b/a UPMC Harrisburg and UPMC (collectively
“UPMC”) file this appeal from the order entered by the Court of Common Pleas
of Perry County granting the motion for a preliminary injunction filed by
Appellee, Judith M. Shoemaker, plaintiff below, as Power of Attorney for Glen
Cauffman. The order specifically directed UPMC to allow two physicians, who
were not credentialed at UPMC Harrisburg (the “Hospital”), to administer
ivermectin to Mr. Cauffman, who had been admitted to the Hospital’s Intensive
Care Unit (ICU) for treatment of his COVID-19 infection after he became
critically ill. After careful review, we conclude that the trial court erred in
granting injunctive relief and we reverse the trial court’s order.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S26033-22
Ivermectin is a medication used to treat certain infections caused by
internal and external parasites in various animal species and humans.1
Although ivermectin received consideration by health care experts as a
potential COVID-19 treatment, the U.S. Food and Drug Administration (FDA)
has not authorized the use of ivermectin to prevent or treat COVID-19
infections, warns of the drug’s potential risks, and concludes that “[c]urrently
available data do not show ivermectin is effective against COVID-19.”2
The American Medical Association (AMA), American Pharmacists
Association (APhA), and American Society of Health-System Pharmacists
(ASHP) issued a joint statement in September 2021 “calling for the immediate
end to the prescribing, dispensing, and use of ivermectin for the prevention
and treatment of COVID-19 outside of a clinical trial.”3 The World Health
Organization (WHO) has taken a similar position in reporting that studies
evaluating ivermectin as a COVID-19 treatment are inconclusive and advising
that the drug only be used in clinical trials until more data is available.4
____________________________________________
1 See Medline Plus, The National Library of Medicine, https://medlineplus.gov/
druginfo/meds/a607069.html (last accessed August 30, 2022).
2 See FDA website, “Why You Should Not Use Ivermectin to Treat or Prevent
COVID-19,” https://www.fda.gov/consumers/consumer-updates/why-youshould-not-use-ivermectin-treat-or-prevent-covid-19 (last accessed August
30, 2022).
3 See AMA press release, September 1, 2021, https://www.amaassn.org/press-center/press-releases/ama-apha-ashp-statement-endinguse-ivermectin-treat-covid-19 (last accessed August 30, 2022).
4 See “WHO advises that ivermectin only be used to treat COVID-19 within
clinical trials,” WHO website, https://www.who.int/news-room/featurestories/detail/who-advises-that-ivermectin-only-be-used-to-treat-covid-19-
within-clinical-trials (last accessed August 30, 2022).
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The factual background of the case is not disputed by the parties. On
or about December 22, 2021, Mr. Cauffman, a 74-year-old male, began to
develop symptoms of COVID-19. Notes of Testimony (N.T.), 1/19/22, at 13.
On January 2, 2022, after Mr. Cauffman tested positive for COVID-19
and his symptoms worsened, he was admitted to the Hospital for treatment.
N.T. at 13-14; Complaint for Emergency Medical Declaratory Judgment and
Emergency Injunctive Relief (“Complaint”), 1/14/22, at ¶ 10, 14. Ms.
Shoemaker was authorized to act on Mr. Cauffman’s behalf through a power
of attorney (POA). N.T. at 10.
Mr. Cauffman was placed under the care of Dr. John Goldman, M.D.,
who explained the Hospital’s treatment protocols for COVID-19 to Mr.
Cauffman and Ms. Shoemaker. UPMC Response to Complaint, 1/19/22, at 1-
2. Dr. Shoemaker also gave Mr. Cauffman and Ms. Shoemaker a pamphlet
outlining the Hospital’s approved COVID-19 treatment options and available
clinical care. Id. The pamphlet also notified Mr. Cauffman and Ms. Shoemaker
of the treatments the Hospital did not currently provide, which included
ivermectin, as the Hospital asserted that such a treatment is “not well-studied
and either show[s] no benefit or potential harm, and … may not have the
proper science to support its use.”
Id.
Upon his admission to the Hospital, Mr. Cauffman received approved
treatments such as Remdesivir, Dexamethasone, and monoclonal antibodies.
N.T. at 15-17. Once Mr. Cauffman’s condition deteriorated further, on January
9, 2022, he was administered high-flow oxygen followed by bilevel positive
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airway pressure (BiPaP) and was given Lasix to decrease fluid buildup in his
lungs. Id. at 17. On January 10, 2022, Mr. Cauffman was sedated,
intubated, and placed on a ventilator in the Hospital’s ICU. Id. at 18.
Thereafter, Ms. Shoemaker, now acting as POA, requested that the
Hospital treat Mr. Cauffman’s COVID-19 infection with ivermectin. On January
13, 2022, Ms. Shoemaker obtained a prescription for ivermectin from Mr.
Cauffman’s primary care physician, Dr. Michael Thieblemont, M.D., a family
medicine physician who is licensed in Pennsylvania, but does not have
credentials or privileges to practice in an intensive care unit or at the Hospital
where Mr. Cauffman was being treated.
While Ms. Shoemaker acknowledged that the Hospital had not included
ivermectin as an approved treatment in its COVID-19 protocol, she noted that
at this point, Mr. Cauffman’s chance of survival was low and the Hospital had
exhausted their authorized treatment options. Complaint, at ¶ 20-22. As
such, Ms. Shoemaker offered to sign a release to relieve UPMC, their agents,
or any party acting on their behalf from any liability in administering the
ivermectin to Mr. Cauffman. Id. at ¶ 18.
When the Hospital refused to administer ivermectin to Mr. Cauffman, on
January 14, 2022, Ms. Shoemaker filed the Complaint, seeking a declaratory
judgment compelling the Hospital to follow Dr. Thieblemont’s prescription to
administer ivermectin to Mr. Cauffman and to comply with the POA’s
directives. In addition, on the same day, Ms. Shoemaker filed an “Emergency
Petition for Injunctive Relief” as well as a “TRO [Temporary Restraining
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Order]/Preliminary Injunction” motion, similarly claiming that injunctive relief
was necessary as there was a substantial likelihood that Mr. Cauffman would
lose the chance to preserve his life if UPMC was allowed to continue to refuse
to administer ivermectin.
In the Complaint, Ms. Shoemaker claimed UPMC had “without
justification breached their express and/or implied contract with [Mr.
Cauffman] in failing to provide proper medical care and … their collective
obligation and [Hippocratic] oath to ‘do no harm’” in refusing to administer
ivermectin, which had been prescribed by Mr. Cauffman’s primary care
provider and could possibly save his life. Complaint, at ¶ 33. Ms. Shoemaker
also asserted that UPMC “violated Pennsylvania and federal law by denying
Mr. Cauffman his legal right to make rational treatment decisions and choices,
individually and through his authorized legal representative.” Id. at ¶ 34.
Attached to the Complaint were affidavits from Ms. Shoemaker herself,
Ralph C. Lorigo, Esq. (one of Ms. Shoemaker’s attorneys), and Dr. Pierre Kory,
M.D., who Ms. Shoemaker identified as an expert in COVID-19 management
and the use of ivermectin to treat COVID-19. The affidavits were accompanied
by multiple exhibits, including Dr. Thieblemont’s prescription for ivermectin.
On the same day, on January 14, 2022, the trial court granted an ex
parte preliminary injunction, ordering that UPMC and/or their agents comply
with Dr. Thieblemont’s order and prescription to administer ivermectin to Mr.
Cauffman. The trial court found Ms. Shoemaker was entitled to a preliminary
injunction because she had a probable right to relief, Mr. Cauffman would
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suffer imminent and irreparable injury if the injunction was not granted, and
there will be no adequate remedy at law unless injunctive relief was granted.5
The trial court scheduled a hearing on the request for injunctive relief to be
held on January 19, 2022.
On the day of the scheduled hearing, UPMC filed a response to Ms.
Shoemaker’s Emergency Petition for Injunctive Relief, claiming that Ms.
Shoemaker’s request to compel alternative care at the Hospital did not meet
the necessary requirements to warrant injunctive relief.
The trial court held the January 19, 2022 hearing via Zoom
videoconference. Ms. Shoemaker testified and offered the expert testimony
____________________________________________
5 Pennsylvania Rule of Civil Procedure 1531(a) provides:
A court shall issue a preliminary or special injunction only after
written notice and hearing unless it appears to the satisfaction of
the court that immediate and irreparable injury will be sustained
before notice can be given or a hearing held, in which case the
court may issue a preliminary or special injunction without a
hearing or without notice. In determining whether a preliminary
or special injunction should be granted and whether notice or a
hearing should be required, the court may act on the basis of the
averments of the pleadings or petition and may consider affidavits
of parties or third persons or any other proof which the court may
require.
Pa.R.C.P. 1531(a) (emphasis added). However, an ex parte injunction
granted pursuant to Rule 1531 without notice to the defendant “shall be
deemed dissolved unless a hearing on the continuance of the injunction is held
within five days after the granting of the injunction or within such other time
as the parties may agree or as the court upon cause shown shall direct.”
Pa.R.C.P. 1531(d). Further, “[a]fter a preliminary hearing, the court shall
make an order dissolving, continuing or modifying the injunction.” Pa.R.C.P.
1531(e).
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of Dr. Daniel Wheeler, D.O., an emergency room physician with fifteen years
of experience. N.T. at 43. While Dr. Wheeler is licensed to practice medicine
in Pennsylvania, he admitted he did not have privileges to practice in any
intensive care unit nor was he credentialed at the Hospital. Id. at 44, 54.
Dr. Wheeler testified that ivermectin would be an appropriate
prescription for Mr. Cauffman and testified that it is common for physicians to
prescribe medication for an off-label use. Id. at 44-45. Dr. Wheeler indicated
there have been studies showing ivermectin has benefited COVID-19 patients
in multiple areas, namely ICU admission, hospitalization, and preventing
death. Id. at 45. However, Dr. Wheeler agreed that the prevailing hospital
standard of care does not use ivermectin to treat COVID-19. Id. at 54.
Dr. Wheeler indicated that in the two days that Mr. Cauffman’s condition
showed slight improvement in his blood gas data since receiving his first dose
on January 16, 2022. Id. at 47-48. Dr. Wheeler attributed this improvement
to the ivermectin. Id. at 49.
UPMC offered the testimony of Dr. Goldman, the Chair of UPMC’s
Infectious Control committee, the system epidemiologist, and the infectious
disease consultant directly involved in Mr. Cauffman’s care. Dr. Goldman
indicated that UPMC’s protocol for COVID-19 was in accordance with national
organizations such as the CDC and the Infectious Disease Society of America
in concluding ivermectin was not effective in treating COVID-19. Id. at 66.
Dr. Goldman contested Dr. Wheeler’s suggestion that Mr. Cauffman’s
condition was improving after receiving the ivermectin, as Mr. Cauffman’s lung
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function had not changed. Id. at 74. While Dr. Goldman admitted that at
times Mr. Cauffman’s need for oxygenation lowered, Dr. Goldman attributed
this slight improvement to the adjustment of Mr. Cauffman’s body position to
a prone position on his stomach. Dr. Goldman noted Mr. Cauffman’s need for
oxygenation increased when he was placed on his back. Id.
UPMC also presented the testimony of Erik Hernandez, the director of
clinical pharmacy services for UPMC’s facilities in central Pennsylvania. Mr.
Hernandez serves as a member of the UPMC Covid Therapeutics Committee,
in which he reviewed medical literature relating to the use of ivermectin to
treat COVID-19. Id. at 103-105. Both Dr. Goldman and Mr. Hernandez
criticized the study relied upon by Dr. Wheeler, claiming this article was
retracted after subsequent peer review revealed that it had relied on data
which had been suspected as having been falsified. Id. at 64-65, 105-106.
On January 26, 2022, the trial court entered an order granting Ms.
Shoemaker’s motion for a preliminary injunction and directing the Hospital to
allow Dr. Thieblemont, Dr. Wheeler, or a nurse acting at their direction, to
administer ivermectin to Mr. Cauffman at the Hospital pursuant to Dr.
Thieblemont’s prescription. The trial court also directed Dr. Thieblemont and
Dr. Wheeler to make themselves “reasonably available to hospital staff for
continued consultation on the necessity to continue administration of
ivermectin.” Order, 1/26/22, at 1.
On January 31, 2022, UPMC filed a notice of appeal along with an
Emergency Motion to stay the Preliminary Injunction pending Appeal with the
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trial court. After the trial court did not act on this motion, on February 10,
2022, UPMC filed an Emergency Motion to Stay Preliminary Injunction Pending
Appeal before this Court. Attached to this motion was an affidavit from Dr.
Goldman, who indicated that the Hospital was directed to give Mr. Cauffman
60 mg of ivermectin a day, which he stated was 2-3 times the normal amount
of ivermectin used for its typical purpose as an antiparasitic medication.
Goldman affidavit, 2/10/22, at 1.
Dr. Goldman reported that the ivermectin did not cause any discernable
improvement in Mr. Cauffman’s condition as his oxygen requirements had not
decreased, his lung function failed to improve, he still required a ventilator,
and needed to undergo a tracheostomy to support long term ventilator use.
Id. at 1-2.
Dr. Goldman reported that while Mr. Cauffman’s liver function tests were
initially normal, his “liver function tests increased to approximately ten times
the normal levels” after Mr. Cauffman received ivermectin at a higher dose
and for a longer duration than normally given to treat parasitic illnesses. Id.
As Dr. Goldman was aware that ivermectin has been reported to cause liver
damage, he opined that the damage to Mr. Cauffman’s liver was likely caused
by the ivermectin. Id. at 2.
On February 10, 2022, this Court entered a per curiam order granting
UPMC’s Emergency Motion to Stay Preliminary Injunction Pending Appeal.
However, this Court was subsequently notified that Mr. Cauffman passed away
on February 22, 2022.
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After learning of Mr. Cauffman’s passing, this Court issued a Rule to
Show Cause on March 9, 2022, directing UPMC to show why the appeal should
not be dismissed as moot. Order, 3/9/22, at 1 (citing Delaware River
Preservation Co., Inc. v. Miskin, 923 A.2d 1177, 1183, n.3 (Pa.Super.
2007) (emphasizing that where controversy no longer exists, appeal will be
dismissed as moot)).
In its response to the Rule to Show Cause, UPMC concedes that the
appeal is technically moot, but asks this Court to review the merits of the case
which UPMC claims involves an issue of public importance, which is capable of
repetition but apt to elude appellate review.
Before reaching the merits of the appeal, we must evaluate whether our
review of this matter is appropriate. We are guided by the following principles:
Generally, an actual claim or controversy must be present at all
stages of the judicial process for the case to be actionable or
reviewable. Plowman v. Plowman, 409 Pa.Super. 143,
597
A.2d 701, 705 (1991). If events occur to eliminate the claim or
controversy at any stage in the process, the case becomes moot.
Id. Even if a claim becomes moot, we may still reach its merits if
the issues raised in the case are capable of repetition, yet likely
to continually evade appellate review. Id. See also In Re Fiori,
543 Pa. 592, 600 n. 4,
673 A.2d 905, 909 n. 4 (1996) (holding
death of patient did not preclude appellate review where issue was
of important public interest, capable of repetition, yet apt to elude
appellate review); Commonwealth v. Bernhardt, 359 Pa.Super.
413,
519 A.2d 417, 420 (1986) (holding exception to mootness
doctrine exists where “(1) the question involved is capable of
repetition but likely to evade review, or (2) the question involved
is one of public importance”). Therefore, if the issues raised by an
appeal are “substantial questions” or “questions of public
importance,” and are capable of repetition, yet likely to evade
appellate review, then we will reach the merits of the appeal
despite its technical mootness.
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In re Duran, 769 A.2d 497, 502 (Pa.Super. 2001).
In In re Duran, this Court reviewed a challenge to an order appointing
an emergency guardian who consented to a blood transfusion that the patient,
a Jehovah’s Witness, had refused based on her religious beliefs. Although
the patient’s death rendered the appeal technically moot, this Court found the
issue raised in the appeal was capable of repetition due to the large class of
Jehovah’s Witnesses in the population. Id. This Court determined that the
issues in the appeal involving the patient’s right to privacy and bodily integrity
were matters of public importance.
Id. at 502-503. Lastly, this Court noted
that the issue raised was capable of evading review because an emergency
blood transfusion involves time constraints that would make appellate review
“virtually impracticable.”
Id. at 503. As such, this Court concluded the issue
raised in that case was cognizable despite its technical mootness.
Applying these principles in this case, we acknowledge that Mr.
Cauffman’s death rendered this appeal technically moot. However, we agree
with UPMC that the issues in this appeal are capable of repetition given the
ongoing COVID-19 pandemic. We also agree with UPMC this appeal involves
a broad range of public policy issues involving the standard of care, ethical
concerns of healthcare providers, and whether a court may direct a hospital
to administer a certain treatment or to allow the administration of a certain
treatment against hospital protocol, overriding the advice of medical
professionals and hospital accreditation standards.
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Moreover, the decision of whether a patient is entitled to compel a
hospital to administer ivermectin to treat severe COVID-19 infections or allow
an uncredentialed physician to administer this treatment will evade appellate
review as the matter would likely be resolved via the patient’s recovery or
death before the completion of the appellate process. Thus, we find the appeal
raises a cognizable issue despite its technical mootness.
UPMC raises the following issue for our review on appeal:
Whether the Trial court erred in entering an injunction compelling
a hospital to permit an uncredentialed physician to administer
substandard care where [Ms. Shoemaker] did not meet her
burden to establish each of the essential prerequisites for the
preliminary injunctive relief?
UPMC’s Brief, at 4. The Hospital and Healthsystem Association of Pennsylvania
filed an amicus curiae brief in support of UPMC’s position.
We begin by noting that in this case, the trial court granted a mandatory
preliminary injunction as it compelled UPMC to perform a positive act to
maintain the status quo of the parties when it first required UPMC to
administer ivermectin to Mr. Cauffman and then astonishingly compelled
UPMC to allow uncredentialed physicians to practice medicine at the Hospital
in administering ivermectin to Mr. Cauffman outside of the Hospital’s COVID-
19 treatment protocol. See Mazzie v. Commonwealth, 495 Pa. 128, 134,
432 A.2d 985, 988 (1981) (distinguishing between mandatory and prohibitory
preliminary injunctions).
As a general rule, appellate review of the grant or denial of a preliminary
injunction is “limited to a determination of whether an examination of the
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record reveals that any apparently reasonable grounds support the trial court's
disposition of the preliminary injunction request.” Summit Towne Centre,
Inc., 573 Pa. 637, 646,
828 A.2d 995, 1001 (2003) (internal quotation marks
and citation omitted).
However, our appellate courts deviate from the general standard of
review in cases where the trial court has granted a mandatory preliminary
injunction, which is an extraordinary remedy that should only be utilized in
the rarest of circumstances. See id. at 646,
828 A.2d at 1001, n.7;
id. at
653,
828 A.2d at 1005, n.13. Our Supreme Court has adopted a unique
standard of review for appeals from the grant of mandatory preliminary
injunctions as follows:
Generally, preliminary injunctions are preventive in nature and
are designed to maintain the status quo until the rights of the
parties are finally determined. There is, however, a distinction
between mandatory injunctions, which command the performance
of some positive act to preserve the status quo, and prohibitory
injunctions, which enjoin the doing of an act that will change the
status quo. This Court has engaged in greater scrutiny of
mandatory injunctions and has often stated that they should be
issued more sparingly than injunctions that are merely
prohibitory. Thus, in reviewing the grant of a mandatory
injunction, we have insisted that a clear right to relief in the
plaintiff be established.
Mazzie, 495 Pa. at 134,
432 A.2d at 988 (citations omitted). As a result, in
reviewing the trial court’s decision to grant a mandatory injunction, we must
“examine the merits of the controversy and ensure that ‘a clear right to relief
in the plaintiff is established.’” Greenmoor, Inc. v. Burchick Const. Co.,
908 A.2d 310, 313 (Pa.Super. 2006) (citations omitted).
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In order to obtain a preliminary injunction, a petitioner must
demonstrate six essential prerequisites:
First, a party seeking a preliminary injunction must show that an
injunction is necessary to prevent immediate and irreparable harm
that cannot be adequately compensated by damages. Second, the
party must show that greater injury would result from refusing an
injunction than from granting it, and, concomitantly, that issuance
of an injunction will not substantially harm other interested parties
in the proceedings. Third, the party must show that a preliminary
injunction will properly restore the parties to their status as it
existed immediately prior to the alleged wrongful conduct. Fourth,
the party seeking an injunction must show that the activity it
seeks to restrain is actionable, that its right to relief is clear, and
that the wrong is manifest, or, in other words, must show that it
is likely to prevail on the merits. Fifth, the party must show that
the injunction it seeks is reasonably suited to abate the offending
activity. Sixth, and finally, the party seeking an injunction must
show that a preliminary injunction will not adversely affect the
public interest.
Summit Towne Centre, 573 Pa. at 646,
828 A.2d at 1001 (internal citations
omitted). If a petitioner fails to establish any one of the six prerequisites, a
reviewing court need not address the remaining prongs.
Id.
In the instant case, UPMC focuses on the fourth prong and argues that
Ms. Shoemaker failed to show “the activity it seeks to restrain is actionable,
that its right to relief is clear, and that the wrong is manifest, or… that it is
likely to prevail on the merits.” Id. We agree.
In assessing whether injunctive relief was proper, the trial court
purported to have the authority to resolve the factual dispute of whether
ivermectin has potential benefits in treating COVID-19 patients. The trial
court considered the testimony of the parties’ experts and determined that
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Ms. Shoemaker’s experts testified credibly in claiming that Mr. Cauffman’s
condition improved after receiving the ivermectin. As such, the trial court
found Ms. Shoemaker was likely to prevail on the merits of her challenge as
there seemed to be evidence that ivermectin benefited Mr. Cauffman.
In conducting this analysis, the trial court’s focus was misplaced as the
trial court failed to recognize that the question before it was not whether
ivermectin is a suitable treatment option for COVID-19, but rather whether
Ms. Shoemaker had identified a legal right in need of protection through a
mandatory injunction. More specifically, the trial court failed to evaluate
whether Ms. Shoemaker established that Mr. Cauffman had the legal right to
compel UPMC to administer a certain treatment that contravened its own
hospital policy or to allow an uncredentialed physician to practice on its
premises in violation of the hospital’s protocols.
In her complaint, Ms. Shoemaker alleged that the Hospital breached
their “express and/or implied contract with Mr. Cauffman in failing to provide
proper medical care” and suggested that the Hospital had violated the
Hippocratic oath to “do no harm” in refusing to administer ivermectin to Mr.
Cauffman in an attempt to save his life. Complaint, at ¶ 33.
We first note that the record does not contain any evidence of an
express contract signed by Mr. Cauffman or hospital staff that would entitle
Ms. Cauffman to injunctive relief.
Second, any implied contract between Mr. Cauffman and the Hospital
would simply require the Hospital to treat Mr. Cauffman according to the
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applicable standard of care. In addition, Ms. Shoemaker’s allegation that the
Hospital violated the Hippocratic oath to “do no harm” is simply a
reformulation of its duty to comply with the relevant standard of care, not an
excuse to force a hospital to abandon its protocols as well as to require an
uncredentialed physician to practice on its premises.
Our Supreme Court has recognized that a hospital may be held directly
liable for corporate negligence if it fails to “uphold the proper standard of care
owed the patient, which is to ensure the patient’s safety and well-being while
at the hospital.” Thompson v. Nason Hosp., 527 Pa. 330, 339,
591 A.2d
703, 707 (1991). Our courts have provided that the doctrine of corporate
negligence requires hospitals to uphold the following four duties:
1. a duty to use reasonable care in the maintenance of safe
and adequate facilities and equipment;
2. a duty to select and retain only competent physicians;
3. a duty to oversee all persons who practice medicine
within its walls as to patient care; and
4. a duty to formulate, adopt and enforce adequate rules
and policies to ensure quality care for the patients.
Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149 (Pa.Super. 2001)
(quoting Thompson,
527 Pa. at 339-40, 591 A.2d at 707–708). Further, “to
successfully present a prima facie case of corporate negligence, a petitioner
must introduce evidence of the following:
1. appellant acted in deviation from the standard of care;
2. appellant had actual or constructive notice of the defects or
procedures which created the harm; and
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3. that the conduct was a substantial factor in bringing about the
harm.
Whittington, 768 A.2d at 1149 (citing Welsh v. Bulger,
548 Pa. 504, 513-
14,
698 A.2d 581, 585-86 (1997)).
However, in this case, both Ms. Shoemaker and her expert witness, Dr.
Wheeler admit the use of ivermectin to treat COVID-19 patients is outside the
Hospital’s standard of care. N.T. at 31-33, 54. As noted above, multiple
national health organizations, including the FDA, AMA, and WHO, have
advocated against the use of ivermectin to treat COVID-19 based on the
absence of conclusive studies to show ivermectin is effective at treating
COVID-19.
While Ms. Shoemaker also asserted that UPMC “violated Pennsylvania
and federal law by denying Mr. Cauffman his legal right to make rational
treatment decisions and choices,” Ms. Shoemaker failed to cite to any legal
authority to support these allegations.
There is no precedent or applicable law to support the proposition that
a patient has a legal right to demand a particular medical treatment against
the advice of their treating physicians, to compel a hospital to allow the
administration of a medical treatment that contravenes its own hospital policy,
or to force a hospital to issue credentials to a physician to administer such a
treatment.
Our review of applicable regulations reveals that Section 102.33 of the
Health and Safety Code does provide that a hospital “shall establish a Patient’s
Bill of Rights,” which must include the following relevant provisions:
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(5) A patient has the right to know what hospital rules and
regulations apply to his conduct as a patient.
(6) The patient has the right to expect emergency procedures to
be implemented without unnecessary delay.
(7) The patient has the right to good quality care and high
professional standards that are continually maintained and
reviewed.
(8) The patient has the right to full information in layman's terms,
concerning his diagnosis, treatment, and prognosis, including
information about alternative treatments and possible
complications. When it is not medically advisable to give such
information to the patient, the information shall be given on his
behalf to the patient's next of kin or other appropriate person.
…
(11) A patient has the right to refuse any drugs, treatment, or
procedure offered by the hospital, to the extent permitted by law,
and a physician shall inform the patient of the medical
consequences of the patient's refusal of any drugs, treatment, or
procedure.
28 Pa. Code § 103.22(b)(5)-(8), (11) (emphasis added).
While this regulation provides that a patient has the right to full
information about his diagnosis, treatment, and prognosis as well as the right
to refuse treatment, notably absent from this regulation is any language
granting a patient the right to demand a particular treatment or therapy,
especially one against hospital protocol and outside the standard of care.
Similarly, federal regulations require that hospitals, in order to
participate in Medicare, must “protect and promote” certain rights of patients,
such as the rights to “participate in the development and implementation of
his or her plan of care,” “make informed decisions regarding his or her care,”
and being “able to request or refuse treatment.” 42 C.F.R. 482.13. However,
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these federal regulations expressly provide that “[t]his right must not be
construed as a mechanism to demand the provision of treatment or services
deemed medically unnecessary or inappropriate.” Id. § 482.13(b)(2).
We also emphasize that the trial court failed to cite to any legal basis to
justify its decision to order UPMC to grant credentials to physicians to
administer ivermectin to Mr. Cauffman within the Hospital’s ICU against
hospital protocol. As noted above, a hospital has a duty to select and retain
only competent physicians as well as a duty to oversee all persons who
practice medicine on its premises. Thompson, supra;Whittington, supra.
Our Supreme Court has explained the how a hospital utilizes peer review
committees in order to grant credentials to physicians to allow them to
practice within the hospital:
[p]eer review can best be understood if one realizes that in most
cases doctors with hospital privileges are not employees of the
hospital, instead, they are independent contractors who must be
granted permission to admit patients and make use of the
hospital's resources. Timothy Stoltzfus Jost, The Necessary and
Proper Role of Regulation to Assure the Quality of Health Care, 25
Hous.L.Rev. 525, 553 (1988). A physician receives permission to
use the hospital when he receives a vote of approval from his
colleagues. Peer review is the common method for exercising self
regulatory competence and evaluating physicians for privileges.
M. Bertolet, Hospital Liability Law and Practice 41 (5th ed. 1987).
The purpose of this privilege system is to improve the quality of
health care, and reflects a widespread belief that the medical
profession is best qualified to police its own. Thus, it is beyond
question that peer review committees play a critical role in the
effort to maintain high professional standards in the medical
practice.
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Cooper v. Delaware Valley Med. Ctr., 539 Pa. 620, 628,
654 A.2d 547, 551
(1995).
Given the importance of the credentialing process, the trial court
improperly interfered with the Hospital’s discretion to select, retain, and
supervise the physicians who practiced on its premises when it ordered the
Hospital to allow uncredentialed physicians to administer ivermectin within the
Hospital’s ICU. Hospitals, not courts, have the resources and authority to
determine whether a physician has the appropriate medical training,
experience, and personal fitness to be eligible for medical staff privileges,
especially within an intensive care unit.
Consequently, there is no support for the trial court’s conclusion that
injunctive relief was appropriate when Ms. Shoemaker did not have the legal
right to either force the Hospital to administer ivermectin against the advice
of his treating physicians and UPMC’s treatment protocol or to demand that
UPMC grant ICU privileges to unvetted physicians in order to administer this
treatment on its premises.6
____________________________________________
6 We also note that Ms. Shoemaker’s willingness to sign a waiver of liability as
the POA for Mr. Cauffman has no impact on our decision. The hospital was
free to accept or reject Ms. Shoemaker’s offer to release the hospital from
liability associated with experimental treatment, and here, the hospital
rejected the offer.
We note that acceptance of a waiver may have released the hospital
from any of Mr. Cauffman’s claims associated with the treatment. However,
the law is unsettled as to whether such a waiver also would have released any
claims Mr. Cauffman’s heirs may have had against the hospital upon Mr.
Cauffman’s death after he had been administered the ivermectin for an off-
(Footnote Continued Next Page)
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Our decision is in accord with other state appellate court decisions that
have held that there is no legal authority to compel a healthcare provider to
administer a treatment contrary to the provider’s professional judgment and
outside the standard of care. See Gahl on behalf of Zingsheim v. Aurora
Health Care, Inc., 977 N.W.2d 756, 759 (Wis.App. 2022) (vacating circuit
court’s order granting injunction that compelled health care provider to
administer ivermectin to treat COVID-19 patient or to credential a provider to
give the treatment); Pisano v. Mayo Clinic Fla.,
333 So.3d 782 (Fla. 1st DCA
2022) (affirming trial court’s order denying injunctive relief as petitioners
failed to demonstrate a legal basis to compel the hospital to administer
ivermectin to treat COVID-19 patient against their medical judgment or
ethics); Abbinanti v. Presence Cent. & Suburban Hosps. Network,
___N.E.3d.___,
2021 WL 6137882 (Ill.App. 2021) (affirming trial court’s
denial of injunctive relief as plaintiffs failed to prove they had legal basis to
force hospital to allow administration of ivermectin against hospital policy);
Texas Health Huguley, Inc. v. Jones,
637 S.W.3d 202, 207 (Tex.App.-
Ft.Worth 2021) (vacating trial court’s temporary injunction ordering hospital
to grant physician temporary hospital privileges for the sole purpose of
administering ivermectin to COVID-19 patient). See also DeMarco v.
____________________________________________
label use. See Valentino v. Philadelphia Triathlon, LLC,
653 Pa. 231,
209
A.3d 941 (2017) (an equally divided Supreme Court affirmed the dismissal of
the heirs’ wrongful death claim, but failed to reach a majority decision
regarding whether a release of liability would bind non-signatories to the
waiver agreement). The hospital could not be compelled to enter a waiver of
liability agreement.
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Christiana Care Health Servs., Inc., 263 A.3d 423, 426 (Del.Ch. 2021)
(court of chancery concluding that “[t]he patient has this Court's sincerest
sympathies and best wishes, but not an injunction” to force hospital to
administer ivermectin as “[p]atients, even gravely ill ones, do not have a right
to a particular treatment”).
As the appellate court in Huguley aptly noted, “judges are not doctors”
and “cannot practice medicine from the bench.” 637 S.W.3d at 207. “The
judiciary is called upon to serve in black robes, not white coats. And it must
be vigilant to stay in its lane and remember its role. Even if we disagree with
a hospital's decision, we cannot interfere with its lawful exercise of discretion
without a valid legal basis.” Id.
For the foregoing reasons, the trial court erred in granting Ms.
Shoemaker’s request for a mandatory injunction when she failed to meet her
burden of establishing that she had a clear right to injunctive relief.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/22/2022
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