Abbinanti v. Presence Cent. & Suburban Hosps. Network
| Decision Date | 29 December 2021 |
| Docket Number | 2-21-0763 |
| Citation | 2021 IL App (2d) 210763,191 N.E.3d 1265,455 Ill.Dec. 557 |
| Parties | Michael ABBINANTI, as Health Care Agent for Sebastian Abbinanti, and Luisa Faso, as Health Care Agent for Maria Abbinanti, Plaintiffs-Appellants, v. PRESENCE CENTRAL AND SUBURBAN HOSPITALS NETWORK, d/b/a Amita Health Saint Joseph Hospital Elgin, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Patrick J. Walsh, of Griffin Williams McMahon & Walsh, LLP, of Geneva, for appellants.
Joseph T. Monahan, John W. Whitcomb, Joseph C.F. Willuweit, Elizabeth A. Lawhorn, and Monique C. Patton, of Monahan Law Group, of Chicago, for appellee.
¶ 1 The facts underlying this case are sad indeed. Sebastian and Maria Abbinanti, the 40-year-old parents of three children, were admitted to the intensive care unit (ICU) of Amita Health Saint Joseph Hospital Elgin (Saint Joseph or hospital) with COVID-19 in late November 2021. Despite receiving every treatment permitted under the hospital's protocols, they remained critically ill.1 On December 15, 2021, their representatives—the plaintiffs, Michael Abbinanti, as health care agent for Sebastian Abbinanti, and Luisa Faso, as health care agent for Maria Abbinanti—filed an emergency motion in the circuit court, seeking an immediate mandatory injunction (a temporary restraining order or TRO) requiring the hospital to administer the medication ivermectin to them. The parties filed briefs and supporting materials, and after a lengthy hearing on December 17, the trial court denied the request for a TRO. The plaintiffs filed this expedited appeal. We affirm.
is approved for internal use in humans (and animals, albeit at different dosages) to treat intestinal infections caused by some parasitic worms. It is also approved in a topical form to treat head lice and certain skin conditions such as rosacea. Although some physicians have recommended the use of ivermectin to treat COVID-19, the Food and Drug Administration (FDA) has not approved such use, stating that "[c]urrently available data do not show ivermectin is effective against COVID-19." See Why You Should Not Use Ivermectin to Treat or Prevent COVID-19 , U.S. Food & Drug Admin. (Dec. 12, 2021), https;//www.fda.gov/consumers/consumer-updates/why-you-should-not-use-ivermectin-treat-or-prevent-covid-19 [https://perma.cc/VZM6-DB49]. The American Medical Association (AMA), American Pharmacists Association (APA), and American Society of Health-Systems Pharmacists (ASHSP) have issued a joint statement that they "strongly oppose the ordering, prescribing, or dispensing of ivermectin to prevent or treat COVID-19 outside of a clinical trial." See AMA, APhA, ASHP Statement on Ending Use of Ivermectin to Treat COVID-19 , Am. Med. Ass'n (Sept. 1, 2021) https://www.ama-assn.org/press-center/press-releases/ama-apha-ashp-statement-ending-use-ivermectin-treat-covid-19 [https://perma.cc/S4C6-3NZH]. The defendant, Presence Central and Suburban Hospitals Network, owns and operates Saint Joseph. Aware of the rising public demand for ivermectin as a treatment for COVID-19 as well as the cautions against such use by medical and governmental bodies, the defendant undertook its own consideration of the issue. In September 2021, the defendant adopted a policy prohibiting the administration of ivermectin to treat COVID-19 at its hospitals, including at Saint Joseph.
¶ 4 Dr. Sergei Lipov is a doctor of internal medicine. In an unattested declaration submitted with the plaintiffs' complaint for declaratory and injunctive relief, Dr. Lipov stated that he was "on staff" at the hospital and that he had been the attending physician for the Abbinantis during their stay at Saint Joseph's ICU. After all of the available protocols to treat the Abbinantis' COVID-19 had been implemented without any improvement in their conditions, he asked to administer ivermectin
to them, as requested by their representatives. Dr. Lipov stated that he had reviewed medical literature promoting such use and had weighed the possibility of adverse impact on the Abbinantis from ivermectin. Without stating that he believed that ivermectin would be effective to treat the Abbinantis' COVID-19, he noted that their families were "desperate to help them as much as possible" and said that he did "not see any harm in trying this drug even if only to reassure family members that ‘everything possible’ was done to save" the Abbinantis. Because of the defendant's policy against such use of ivermectin, however, Dr. Lipov was unable to write or fill a prescription for ivermectin or administer it to the Abbinantis in Saint Joseph's ICU. The plaintiffs then brought suit on behalf of the Abbinantis.
¶ 5 During the rapid briefing of the TRO motion, both sides presented materials regarding the possible efficacy of ivermectin to treat or prevent COVID-19. The plaintiffs relied upon articles and an unattested declaration by Pierre Kory, M.D., who identified himself as an expert on the management of COVID-19 and in particular on the use of ivermectin
to treat or prevent it. The defendant presented reports critiquing the studies relied upon by Dr. Kory as small and not well-designed, noting that no adequately sized and well-designed studies had observed any effect from ivermectin, and noting an increase in adverse reactions and calls to poison-control centers associated with the use of ivermectin.
¶ 6 The trial court reviewed all of the materials presented and heard argument from both sides. It commented that, although Dr. Kory and the other physicians who supported the use of ivermectin might be characterized as a "fringe" group, the court itself generally believed that new and alternative medical approaches could be valid and that patients' desires to avail themselves of such approaches should be respected. However, the question before it was not whether treatment with ivermectin was a good idea or a bad one, but whether the plaintiffs had made a valid legal case that the court should override the hospital's judgment about ivermectin. Thus, it was required to focus on whether the plaintiffs had shown the requirements for a TRO: a protectible right, irreparable harm, an inadequate remedy at law, and a likelihood of success on the merits.
¶ 7 Turning to those elements, the trial court found that the plaintiffs had not shown that the Abbinantis had a legal right to be administered medication that was against the standard of care developed by the hospital. The plaintiffs had argued that, as patients, the Abbinantis (and by extension their representatives) had an express contract with the hospital pursuant to the hospital's written statement of "patient rights and responsibilities." That document noted patients' rights to, among other things, have "reasonable access to care," be allowed to "participate in decision-making processes related to their plan of care," be informed about "alternative methods of treatment," and give informed consent. The trial court found that, to the extent that the document could be considered a contract, it did not give patients the right to receive whatever medical treatment they wanted if that treatment was against hospital policy. Similarly, although the plaintiffs had referred generally to an implied contract between the Abbinantis and the hospital, they offered no details as to the terms of that implied contract or how the hospital's prohibitions on the use of ivermectin to treat COVID-19 violated that contract.
¶ 8 Instead, at oral argument the plaintiffs relied almost entirely on section 10.8(a)(3) of the Hospital Licensing Act (Act) ( 210 ILCS 85/10.8(a)(3) (West 2020)), which provides in pertinent part that, when a physician is "employed" by a hospital as defined in that statute, the hospital and physician must acknowledge in writing that the hospital may not "unreasonably exercise control, direct, or interfere with the employed physician's exercise and execution of his or her professional judgment in a manner that adversely affects the employed physician's ability to provide quality care to patients." The plaintiffs argued that the defendant was unreasonably interfering with Dr. Lipov's recommended care of the Abbinantis, in violation of the Act. The defendant argued that the Act did not give doctors the right to treat their patients in ways that disregarded hospital policies.
¶ 9 The trial court rejected the plaintiffs' argument that the Abbinantis had a legal right to receive ivermectin under the Act. As an initial matter, the court found that the Act only governed the relationship between hospitals and the physicians they employ; it did not grant patients such as the Abbinantis legal rights that could be enforced by a court. Dr. Lipov, the physician whose rights were arguably violated by the hospital's ivermectin policy, could conceivably have brought suit under the Act.2 But he was not a party to the lawsuit, and his rights could not be asserted by the plaintiffs.
¶ 10 Second, the trial court found that, for the Abbinantis to have a protectible legal right arising under the Act, the plaintiffs would have to show that it was unreasonable for the hospital to require its physician-employees to abide by its established policies. However, there was conflicting evidence regarding the potential efficacy of ivermectin to treat COVID-19. The hospital weighed that evidence before adopting its policy, and that policy was supported by the FDA, the AMA, the APA, and the ASHSP. Thus, even if the Abbinantis could have legal rights under the Act and even if the hospital's policy interfered with Dr. Lipov's recommended treatment of them, the plaintiffs had not shown that the hospital's policy was unreasonable, as required under the Act.
¶ 11 The trial court concluded that that the plaintiffs had failed to show that the Abbinantis had a right, either under the Act or on any other legal basis,...
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