DeMarco v. Christiana Care Health Servs., Inc.

• Decision Date: 24 September 2021
• Docket Number: C.A. No. 2021-0804-MTZ
• Citation: 263 A.3d 423
• Parties: Mary Ellen DEMARCO, as attorney in fact for David DeMarco, Plaintiff, v. CHRISTIANA CARE HEALTH SERVICES, INC., Defendant.
• Court: Court of Chancery of Delaware

263 A.3d 423

Mary Ellen DEMARCO, as attorney in fact for David DeMarco, Plaintiff,

v.CHRISTIANA CARE HEALTH SERVICES, INC., Defendant.

C.A. No. 2021-0804-MTZ

Court of Chancery of Delaware.

Date Submitted: September 23, 2021

Date Decided: September 24, 2021

Theodore A. Kittila and William E. Green, Jr., HALLORAN FARKAS + KITTILA LLP, Wilmington, Delaware; Ralph C. Lorigo, LAW OFFICE OF RALPH C. LORIGO, West Seneca, New York, Attorneys for Plaintiff.

John D. Balaguer, Stephen J. Milewski, and Karine Sarkisian, WHITE AND WILLIAMS LLP, Wilmington, Delaware, Attorneys for Defendant.

OPINION

ZURN, Vice Chancellor.

This Court has been asked to compel a healthcare provider to treat a hospitalized COVID-19 patient with ivermectin

. Ivermectin is a safe and effective treatment for parasitic disease

. While some providers are administering ivermectin to COVID-19 patients due to its anti-viral and anti-inflammatory properties, it is not part of the standard of care for the COVID-19 virus. Upon admission to the hospital, the patient in this case expressed a desire to be treated with ivermectin. As the patient's health declined, his wife sought out and obtained a prescription from a doctor who never met the patient, and who is not affiliated with the hospital. Consistent with its guidelines, the hospital refused to administer the ivermectin prescription. Because the patient was hospitalized in isolation due to his infectious disease, the only avenues to effectuate delivery of ivermectin were through discharge against medical advice, and through a court order. After trying the first avenue and then returning to the hospital, the patient's wife has joined a legion of plaintiffs seeking to compel hospitals to treat COVID-19 patients with ivermectin.

This precedential opinion denies the requested injunction. The evidentiary proceedings before this Court focused on ivermectin's safety and efficacy, with the hospital explaining why ivermectin is not part of the standard of care and the plaintiff arguing why it should be. But this opinion denies the injunction based on two more fundamental, and reciprocal, precepts. Patients, even gravely ill ones, do not have a right to a particular treatment, and medical providers’ duty to treat is coterminous with their standard of care. This court will wield its equitable powers only to enforce a right or duty; in their absence, relief is not available. The patient has this Court's sincerest sympathies and best wishes, but not an injunction.

I. BACKGROUND

I draw the following facts from the record as developed at yesterday's evidentiary hearing (the "Hearing") on the plaintiff's motion for a preliminary injunction (the "Motion").¹ That record includes seven Hearing exhibits,² Hearing testimony from three witnesses, and at least twenty other exhibits and declarations the parties submitted with their pleadings and briefs. I have examined that evidence, giving each document and testimony the weight deserved. I have found the following facts based on the preponderance of that evidence.³

A. David DeMarco Is Hospitalized With COVID-19.

Plaintiff Mary Ellen DeMarco ("Plaintiff") is the attorney in fact for her husband David DeMarco ("DeMarco").⁴ Defendant Christiana Care Health Services, Inc. ("Defendant") is a private not-for-profit corporation authorized to do business in the State of Delaware.⁵

On September 9, DeMarco checked himself in to Wilmington Hospital, Defendant's Wilmington, Delaware campus (the "Hospital"), where he was diagnosed with COVID-19 and moved to the intensive care unit ("ICU").⁶ While in the Hospital, DeMarco was in isolation and only Hospital personnel had access to him; Plaintiff communicated with DeMarco by phone.⁷

As part of his advanced health care treatment instructions, DeMarco indicated that he did not wish to be placed on a mechanical ventilator

or breathing machine.⁸ DeMarco persistently stated that he did not wish to be placed on a ventilator.⁹ Plaintiff discussed DeMarco's wishes with his doctors at the Hospital on September 10.¹⁰

The Hospital treated DeMarco with heated high-flow oxygen at the maximum setting of one hundred percent concentration and 60L flow, Methylprednisolone

sodium succinate, Remdesivir (Veklury), Solu-Medrol, Benzonatate (Tessalon Perles ), and Guaifenesin-Dextromethorphan (Robitussin DM ).¹¹ DeMarco's treatment was in accordance with the Hospital's treatment guidelines for COVID-19.¹² Despite this care, DeMarco's condition did not improve, and by September 16, he was diagnosed with "severe hypoxic respiratory failure" and was "on the brink of requiring intubation with mechanical ventilation."¹³

B. Plaintiff Seeks Treatment With Ivermectin.

At DeMarco's request, Plaintiff has sought alternative treatment to improve her husband's condition. After he was admitted to the Hospital, DeMarco sent text messages to Plaintiff, requesting ivermectin

.¹⁴ Ivermectin is a drug approved by the Food and Drug Administration (the "FDA") as an antiparasitic used to treat tropical diseases, including onchocerciasis, helminthiases, and scabies.¹⁵ Ivermectin has anti-viral and anti-inflammatory properties, which Plaintiff asserts make it "effective in reducing ... mortality in COVID patients" with "an extremely low risk of side effects."¹⁶ Defendant's interim treatment guidelines for patients hospitalized with COVID-19, which are based on and updated according to evidence-based, peer-reviewed literature and recommendations from the FDA, do not include ivermectin

.¹⁷

On September 11, Plaintiff discussed ivermectin

with several members of the Hospital staff, including DeMarco's treatment team.¹⁸ She also contacted patient advocacy.¹⁹ Consistent with its guidelines, the Hospital refused to treat DeMarco with ivermectin.²⁰

In search of a prescription, Plaintiff contacted Dr. Adam Brownstein, a family medicine specialist in Milton, Delaware.²¹ On September 16, Dr. Brownstein prescribed ivermectin

to DeMarco.²² Dr. Brownstein had not previously treated DeMarco, and prescribed the medication without examining him.²³ Plaintiff does not indicate that Dr. Brownstein has admitting privileges at the Hospital, and Defendant asserts he does not.²⁴ Plaintiff filled her husband's prescription at a CVS Pharmacy in Milford, Delaware.²⁵ Despite Dr. Brownstein's prescription and Plaintiff's insistence, the Hospital has refused to authorize, administer, or allow Plaintiff to administer ivermectin to DeMarco.²⁶ While DeMarco is hospitalized in isolation, Plaintiff cannot deliver the ivermectin to DeMarco.²⁷

C. Plaintiff Files This Litigation And The Court Denies A Temporary Restraining Order.

Plaintiff filed a Verified Complaint for Injunctive and Declaratory Relief on September 17, 2021 (the "Complaint").²⁸ The Complaint asserts two counts. Count I seeks injunctive relief "requiring Defendant to administer the [Ivermectin] prescribed by [Dr. Brownstein]."²⁹ Count II seeks a declaratory judgment "providing that the Defendant will honor Plaintiff's wishes under the power of attorney respecting the medical treatment of Mr. DeMarco."³⁰

In conjunction with the Complaint, Plaintiff filed a Motion for Expedited Proceedings and a Motion for Emergency Temporary Restraining Order ("TRO") seeking an injunction compelling Defendant to administer DeMarco's prescribed ivermectin.³¹ The Court accommodated the emergency nature of her request and held a TRO hearing three hours after Plaintiff filed her Complaint. That hearing was conducted ex parte after neither Plaintiff's attorneys nor the Court could contact counsel for Defendant.³² The Court denied Plaintiff's TRO in a bench ruling as seeking mandatory relief on disputed facts,³³ but expedited the case and scheduled the Hearing on Plaintiff's Motion for September 23.³⁴

D. DeMarco Leaves The Hospital, His Condition Worsens, And He Is Readmitted.

On September 19, at his request, DeMarco was discharged from the Hospital against medical advice and transferred to home hospice care so that he and Plaintiff could self-administer ivermectin

.³⁵ Plaintiff attempted to treat DeMarco at home with the aid of a hospice nurse.³⁶ During this time, DeMarco took one "large" dose of the prescribed ivermectin.³⁷ Within hours, Plaintiff encountered what she described as a "catastrophic equipment failure" when DeMarco's oxygen mask broke in her hands.³⁸ His condition deteriorated rapidly and Plaintiff called 911.³⁹ Paramedics responded.⁴⁰ Plaintiff requested the ambulance bring DeMarco to a different hospital, St. Francis Hospital; the ambulance started towards St. Francis, "but they did not have any ICU beds, so [DeMarco] ended up back at [the Hospital]," where he was readmitted to the ICU.⁴¹ During that time, DeMarco rescinded his existing "do not resuscitate" directive, and consented to being intubated.⁴² Since being readmitted, DeMarco has remained in the Hospital's ICU, where he is intubated and on ventilator support.⁴³ In short, DeMarco is gravely ill.

E. Plaintiff Pursues Equitable Relief And The Court Considers The Motion.

Since the TRO hearing, Plaintiff has continued to pursue mandatory injunctive relief.⁴⁴ Counsel for Defendant entered their appearances on September 17.⁴⁵ On September 21, the Hospital answered the Complaint.⁴⁶ On September 22, the Hospital filed a Brief in Opposition to Plaintiff's Action for Injunctive and Declaratory Relief.⁴⁷

Plaintiff claims Defendant's refusal to permit the administration of ivermectin "breaches the Patient/Physician contract and the Hippocratic Oath, as well as Mr. DeMarco's right to self-determination under Delaware statutory law and the Delaware State Constitution."⁴⁸ She seeks injunctive relief compelling the Hospital "to abide by the Patient/Physician contract and [its] Hippocratic Oath to ‘Do No Harm.’ "⁴⁹

The Hospital argues Plaintiff has not clearly established a duty or right enforceable by a mandatory injunction because the Hospital does not owe Plaintiff or DeMarco a duty to treat DeMarco with ivermectin under its...