Courts are often called upon to decide emergency questions for persons who lack capacity to make their own medical decisions. Illinois law relies on a number of substitute decision makers available to make these decisions. The substitute decision makers include agents under a power of attorney, court-appointed temporary or plenary guardians, attorneys in fact under the mental health treatment declaration act, or surrogates under the health care surrogate act. 

Substitute decision makers obtain their authority from the advanced directive document appointing them or from the statute. The documents define the scope of the agents’ power or the statute will set parameters under which the substitute decision makers must operate.

Recently we have encountered a slight variation on the notion of written and informed consent by substitute decision makers. Instead of the medical professional seeking consent from the substitute decision maker, the substitute decision maker is demanding the hospital/medical provider provide specific treatment for their loved one who is not capable of providing direction or consent to the medical provider. 

In these cases, the plaintiffs have filed pleadings seeking emergency injunctive relief seeking to compel the medical staff and/or the hospital to provide ivermectin. The treating physicians and the hospital argued the use of ivermectin was not within the standard of care and not approved by the FDA, CDC, AMA and many other professional associations. In response, plaintiffs argued the ivermectin was safe and was similar to many medications that were often given as “off label” uses. 

In nine recent Illinois trial court decisions, the courts were asked to decide emergency motions seeking to require hospitals to administer ivermectin to patients who lacked decisional capacity who were in the hospital intensive care unit (ICU), were on a ventilator, and suffering from COVID-19 or the after-effects of COVID-19. The cases were filed claiming the patient was near death and needed urgent medical care. 

In the first case, In re Estate of Nurije Fype, the plaintiff, a daughter of a patient in the hospital’s ICU, went to court in a temporary guardianship proceeding without any notice to the hospital and obtained an ex parte order directing the hospital to administer ivermectin to the patient. In re Estate of Fype, Case No. 21 P 542 (DuPage County), Decision Issued April 30, 2021. Upon learning of the ex parte order, the hospital objected to its entry and asked for an opportunity to respond. The court did not allow the hospital to present any medical evidence, ruling that the hospital must “step aside” and allow the administration of ivermectin to the patient. The hospital appealed the court’s order, but the appellate court ruled that the appeal was moot because the patient had been discharged from the hospital while the appeal was pending. In re Estate of Fype, 2021 IL App (2d) 210259-U (Order filed July 27, 2021 under Supreme Court Rule 23(b)).

In Fype , the court reasoned it was a “court of equity” and therefore had the authority to order a hospital to give the medication. It stated it was an emergency, and the court had the authority to act even without hearing medical testimony from the treatment team. The court relied on the pleadings filed by the daughter who was an agent under a power of attorney and an affidavit of a medical doctor who had not examined the patient. The court reasoned it could act because of what it perceived to be the emergent circumstances and the clinical condition of the patient.

In Wilson v. Advocate Condell Medical Center, with only little notice to the hospital, the plaintiff obtained a court order requiring the hospital to allow the administration of ivermectin to a patient in its ICU. After the patient suffered severe adverse reactions shortly after the administration of the ivermectin, the hospital filed an emergency motion, and the court stayed its order. The patient’s family subsequently withdrew their request and voluntarily dismissed the action. Wilson v. Advocate Condell Medical Center, Case No. 21 MR 957 (DuPage County).

In Ng v. Edward-Elmhurst Healthcare, the plaintiff’s lawyers again went into court without notice to the hospital and obtained an ex parte order directing the hospital to give an unaffiliated outside physician “temporary emergency privileges” to administer ivermectin to a patient in the hospital’s ICU. The hospital was able to get the initial order dissolved, and the judge set the matter for an evidentiary hearing. After three days of testimony, including from three medical doctors on behalf of the hospital and affidavits from two other doctors treating the patient, the judge ruled against the hospital. The hospital appealed, and the appellate court reversed the trial court’s order. The appellate court issued a Rule 23(c) Summary Order, meaning that it cannot be used as precedent or persuasive authority in subsequent cases. Ng v. Edward-Elmhurst Healthcare, No. 2-21-0670 (2d Dist. December 21, 2021, filed under rule 23(c)(2)).

In Abbinanti v. Presence Central and Suburban Hospitals Network, the judge denied the plaintiffs’ request for an emergency temporary restraining order against the hospital. The plaintiffs appealed, and the hospital won the appeal. The appellate court held that the plaintiffs had not demonstrated a legal right in need of protection or a likelihood of success on the merits of their action, and that granting the plaintiffs’ request for the administration of ivermectin would not maintain the status quo. Abbinanti v. Presence Cent. & Suburban Hosps. Network (2021 IL App (2d) 210763, Opinion filed December 29, 2021).

In Hager v. Palos Community Hospital, the judge ruled in favor of the hospital, refusing to grant the plaintiff’s request for emergency injunctive relief. Hager v. Palos Community Hospital (No. 2021-CH-06155 (Cook County), Order entered December 22, 2021).

In Adamczyk v. Alexian Brothers Medical Center, the court ruled in favor of the hospital. Specifically, the court denied the plaintiff’s request for injunctive relief and issued a 30-page ruling addressing many of the arguments being made in these types of cases. Adamczyk v. Alexian Brothers Medical Center (No. 2021 CH 06297 (Cook County), Decision Issued December 30, 2021).

In Schultz v. Presence Central and Suburban Hospitals Network, the court denied the plaintiff’s motion for a preliminary injunction but gave the plaintiff an opportunity to amend her complaint. The hospital moved to dismiss, and after hearing arguments the trial court dismissed the case with prejudice. Schultz v. Presence Central and Suburban Hospitals Network, Case No. 2021 CH 76 (21st Jud’l Cir., Kankakee Cty.) No published opinion.

There have also been trial court decisions in Sangamon County and in Madison County. In those cases both courts denied the plaintiff’s request to order the ivermectin be used after evidentiary hearings. 

• Clouse v. Memorial Medical Center, Case No. 2021 CH 84 (Sangamon County), Decision Issued September 3, 2021, denying plaintiff’s request for a preliminary injunction and dismissing plaintiff’s complaint.
• Criswell v. Anderson Healthcare, Case No. 21 CH 200 (Madison County), Decision Issued November 15, 2021, denying plaintiff’s motion for mandatory injunction and dismissing plaintiff’s complaint with prejudice.

Counsel for the Illinois hospitals involved in these cases were:

• Fype, Wilson, Ng, Abbinanti, Hager, and Adamczyk cases – Monahan Law Group (Joseph Monahan, John Whitcomb, Elizabeth Lawhorn, Joe Willuweit, and Monique Patton Woody)
• Schultz case – Neal Gerber & Eisenberg (Steve Pflaum, Thomas Zahrt, and Benjamin Boris)
• Clouse case – Brown, Hay & Stephens (William Davis and Garrett Kinkelaar)
• Criswell case – HeplerBroom (Beth Bauer and Emilee Bramstedt)

Two appellate court decisions in Michigan and Texas are also worth noting. In these cases both courts presented a careful analysis of the legal requirements courts must follow before ordering injunctive relief and requiring providers to administer specific medication. 

• Texas Health Huguley, Inc. vs. Jones, 2021 Tex. App. Lexis 9432 (November 18, 2021)
• Frey v. Trinity Health-Michigan, 2021 Mich. App. Lexis 6988 (December 10, 2021)

Our Illinois courts have found that injunctive relief is a drastic remedy which should only be used in exceptional circumstances and for a brief duration. The purpose of a TRO is to allow a trial court to preserve the status quo until a hearing can be held. The party seeking a TRO or preliminary injunction must show: 1.) A clear right in need of protection; 2.) Irreparable injury; 3.) No adequate remedy at law; and 4.) A likelihood of success on the merits. The more recent of these cases and the Appellate Court rulings provide guidance to courts and lawyers involved in cases where plaintiffs are trying to insist that treatment be used even when medical testimony establishes that it is not within the standard of care. In order to meet the clear standards meriting an order from the court for emergency injunctive relief, there must be clear facts to establish each one of the required elements for injunctive relief. A medical emergency is not enough to allow a court to compel medical treatment, particularly when the treatment desired is not within the standard of care and against medical advice. 

These cases are important to consider for practitioners who are dealing with individuals who are not capable of making their own written and informed consent decisions and rely on substitute decision makers. They are also important to consider when proposing the court impose medical treatment on providers when the medical providers do not agree that the medical intervention is appropriate or within the standard of care. 

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This article was provided by Joseph T. Monahan, MSW, JD, ACSW, the founding partner of Monahan Law Group, LLC, in Chicago. The firm focuses its practice in mental health, confidentiality, guardianship, probate and health care law. He may be contacted at jmonahan@monahanlawllc.com