Shoemaker v. UPMC Pinnacle Hosps.
| Decision Date | 22 September 2022 |
| Docket Number | 225 MDA 2022,J-S26033-22 |
| Citation | 2022 PA Super 163 |
| Parties | JUDITH M. SHOEMAKER, AS POA FOR GLEN CAUFFMAN v. UPMC PINNACLE HOSPITALS D/B/A UPMC HARRISBURG AND UPMC Appellant |
| Court | Pennsylvania Superior Court |
STEVENS, P.J.E.
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.
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] 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 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 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 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 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 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....
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