November 12, 2021

Medical Treatment Cannot Be Compelled by a Michigan Court or its “Right to Try” Law

Ivermectin has FDA approval for use in treatment of certain parasites in humans, but not for treating COVID-19. These cases highlight misconceptions regarding the power of the courts to order medical care and the application of “right to try laws.”

Courts cannot legally order medical treatment be provided over the objection of a physician/hospital. With few exceptions, physicians/hospital are not required to provide any medical treatment. There is no Michigan law authorizing a court to order a physician/hospital to provide medical treatment when that treatment has been deemed by the physician/hospital to be unnecessary, potentially harmful, or not in accordance with the standard of practice.

Beaumont Royal Oak patient fails to obtain ivermectin treatment after going to court

One of these cases was recently tried in the Oakland County Circuit Court (Ford v. Beaumont, Case No. 2021-190083-CZ). A temporary restraining order required Beaumont to administer “a course of ivermectin” to a COVID-19 patient in its Royal Oak hospital. Following a hearing, the court dissolved and terminated the TRO and denied the patient’s motion for a preliminary injunction. The same result has been reached in many other ivermectin cases.

Michigan’s “Right to Try Act,” MCL 333.26451, was one legal basis cited by the patient in the Beaumont case as authority for the court’s order for medical treatment. Despite what its title might suggest, Michigan’s “Right to Try Act” does not give patients the right to try or otherwise obtain any medical treatment they wish to receive, nor does it require physicians/hospitals to provide any medical treatment a patient demands.

The ‘Right to Try Act’ has limitations for patients seeking approval

Instead, the Act enables the use of only those drugs, biological products, or devices that have successfully completed phase 1 of a clinical trial but have not yet been approved for general use by the FDA and remain under FDA investigation in a clinical trial. This law enables eligible patents to obtain these drugs, biological products, or devices only when recommended by their physician and following the patient providing written informed consent. When this occurs, the statute provides immunity and other measures to enable the use of these drugs, biological products, or devices.

The courts are not a pathway to compel delivery of medical treatment. Even the limited medical treatment available via Michigan’s “Right to Try Act” requires a physician’s recommendation and a hospital’s approval.

This piece first appeared in the November 8, 2021 edition of Crain’s Detroit Business.

About the author:

Daniel J. Schulte answer questions about health care lawDaniel J. Schulte has more than 25 years of experience helping clients solve tough problems and capitalize on opportunities that require a blend of business and legal expertise. His practice focuses on addressing the legal, business, licensing, and regulatory challenges of health care professionals, organizations, and facilities. Dan understands how legal issues impact business objectives and, as a result, offers his clients practical, results-oriented advice. He is a Certified Public Accountant, former managing partner and current executive committee member of the firm. Dan also serves as co-chair of the firm’s Health Care Practice Group.

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