Update: Dec. 19: On Sunday, Dec. 19, Christopher Davies said in a text message that he would not be communicating further with the media about his mother’s condition.
UPDATE, Dec. 16: Fauquier Health will not have to pay the $10,000-a-day penalties that were imposed earlier this week as the result of a contempt of court order from Loudoun County Circuit Judge James Fisher, according to Tracie Dorfman, attorney for Fauquier Health. Fisher purged the contempt charge at a 2 p.m. hearing held on Tuesday, Dec. 14 in a civil suit filed by Donald Davies, Jr., by proxy for Kathleen Davies, a COVID-19 patient in the ICU at Fauquier Hospital.
“When the court purged the contempt order, the fees were purged as well,” she said. “The hospital will not have to pay any monetary penalty.”
Dorfman explained that the “Defendant’s order of objection” submitted on Dec. 14 (see update, Dec. 15, 1 p.m.) was a standard filing to state the health system’s objection to the judge’s rulings on Dec. 7, 9 and 13, in case there is an appeal. “It gets everything on the record. The judge does not have to respond,” said Dorfman.
She said at this time the health system does not have intention to appeal.
Dorfman said the objections she submitted Dec. 14 center on what she calls a misapplication of the Advance Medical Directive and Health Care Decisions Act of Virginia. She said, “The Dec. 7 order [that required the hospital to administer Ivermectin to ICU patient Kathleen Davies] was an order given without notice to the hospital. The judge was trying to use the act to mandate the hospital to provide care it doesn’t believe” will benefit the patient.
“The law is meant to be used when reasonable disagreements come up between a doctor and patient. The law was misapplied here. It does not allow the judge to force a hospital to make its staff follow an order from a non-credentialed physician,” Dorfman said.
Dorfman also pointed out that Fisher’s order is not “binding,” in other cases. “It’s a circuit court opinion. There was a case in Norfolk that went the other way. If it had been in the Virginia Supreme Court, that would have set a precedent that could be followed by other courts.”
Fauquier Health also released a statement Dec. 15 about what it perceives as misinformation about Kathleen Davies’ care. The statement said:
“Fauquier Health’s top priority is to provide safe, high-quality care to the patients we serve, which includes the protection of their privacy.
“We would like to correct the misinformation regarding the family who disagreed with the clinical course of treatment recommended by our physicians for their family member. As outlined in the court documents, a patient’s family filed a petition seeking to compel our hospital to administer medication prescribed by an outside physician. This physician had no privileges to practice medicine at our hospital.
“Like other hospitals, Fauquier Health is unable to administer medications to our patients without a valid order from a physician on our medical staff. Doing so would violate standard hospital practice and Virginia law. That said, our team has worked around the clock to cooperate with the patient’s family and the court to identify potential viable solutions, including to make a reasonable attempt to transfer the patient’s care to their preferred physician, which has since happened.
“Hospitals are bound by rules and regulations that govern how we operate to ensure that we administer care safely to our patients. From a legal and regulatory standpoint, we must always follow the appropriate steps to credential and privilege physicians to practice medicine at our facilities – this is to protect patients and ensure the consistent delivery of quality care.
“Despite what has been shared online, we believe that we have navigated these complexities as swiftly as possible and have remained in compliance with standard hospital practice, including federal and state regulations, throughout this matter. In fact, we proactively took steps above and beyond the family’s requests, the suggestions of their legal counsel, and the court’s order to make the desired accommodations.
“Because of our responsiveness throughout this time, the court has purged the previous contempt order.”
UPDATE, Dec. 15, 1 p.m.: Judge James Fisher has vacated a contempt of court order against Fauquier Hospital that was put in place Dec. 13. He purged the contempt charge at a 2 p.m. hearing held on Tuesday, Dec. 14 in the civil suit filed by Donald Davies, Jr., by proxy for Kathleen Davies, a COVID-19 patient in the ICU at Fauquier Hospital. (The hospital has been referred to as Fauquier Medical Center throughout the proceedings).
The hospital had filed a motion to vacate the order earlier on Tuesday.
The judge’s order stated, “Having found that respondent [Fauquier Medical Center] has taken reasonable efforts to transfer patient care as required by the court’s Dec. 9 order, to include:
- Fauquier Medical Center permitted Dr. Maturi to enter the hospital to order and administer Ivermectin on Dec. 13. Ivermectin was administered at 8:46 p.m.
- Dr. Maturi gave verbal assurances that she would be available to hospital staff should they have any questions or concerns about Ivermectin and she provided her cell phone, home phone and work phone to be consulted as needed; and
- As required by the court’s order to provide for a team approach to begin medication, Fauquier Medical Center has permitted Dr. Maturi into the hospital to order and administer Ivermectin. Fauquier Medical Center will ensure that Ms. Davies will continue to receive all other non-Ivermectin care from hospital staff and contractors.
It is unclear whether the hospital will still have to pay the $10,000 a day penalty imposed by Fisher when he filed the contempt order.
Hospital objects to process that led to contempt order
In addition to filing a request to dismiss the contempt of court order, hospital attorneys also filed a “Defendant’s certificate of objections” at about the same time. The filing spelled out the hospital’s objections to the contempt order and how the judge arrived at his decision.
In particular, the hospital objected to how the Dec. 9 hearing – which resulted in the order requiring the hospital to transfer patient care responsibilities to the patient’s family physician – unfolded.
The objection said that the hospital’s attorneys had insufficient time to gather evidence to support their point of view and that they were not able to offer live testimony.
The hospital’s attorneys also objected to the Dec. 13 hearing, during which the hospital was declared in contempt and fines of $10,000 a day were imposed. The objection states, “The court’s order of Dec. 13 was based on plaintiff’s after-hours motion on Dec. 10 and defendant was only given hours’ notice, and again was not able to present evidence…”
The objection continues that the court accepted the oral testimony of Christopher Davies and that his testimony was “nearly entirely based on inadmissible hearsay.” Oral testimony was not accepted “from any other provider,” according to the hospital’s objection.
The hospital’s attorneys had other objections as well:
- The court’s ruling that the defendants had not taken reasonable efforts to transfer care of Mrs. Davies to another physician, even though the court “could not define what the transfer of care required, and disregarded the requirements of the hospital to ensure patient safety as ‘unnecessary.’”
- The court’s requirements that the hospital be held responsible to the “actions of third parties over which it has no legal duty or control, including but not limited to the physicians involved in Mrs. Davies’ care and treatment in the ICU, all of whom are not employees or agents of the defendant.”
- The hospital attorneys also objected to the court ordering and requiring the defendant to provide a court reporter and pay for the transcriptions, as well as at “all other future hearings in this matter.”
- The hospital attorneys also objected to the application of the Advance Medical Directive and Health Care Decisions Act of Virginia in the court’s decision.
UPDATE, noon, Dec. 14: Fauquier Hospital spokeswoman Sarah Cubbage released a statement Tuesday morning regarding the civil suit filed by the family of Kathleen Davies.
Cubbage wrote: "Fauquier Health’s top priority is to provide safe, high-quality care to the patients we serve, which includes the protection of their privacy.
"Our team has worked around the clock to cooperate with the court throughout this matter, including the court’s order to make a reasonable attempt to transfer the patient’s care to their preferred physician. Like all other hospitals, we are bound by rules and regulations that govern how we operate to ensure that we administer care safely to our patients. From a legal and regulatory standpoint, we must always follow the appropriate steps to credential and privilege physicians to practice medicine at our facilities – this is to protect patients and ensure the consistent delivery of quality care. In addition, we cannot compel physicians to administer treatment that is against their clinical judgment and is not within the accepted medical standards of care. We believe that we have navigated these complexities as swiftly as possible and have remained in compliance with standard hospital practice, including federal and state regulations, throughout this matter.
"Yesterday, the court offered additional guidance and clarification of its most recent order, and we were able to meet that guidance last night. We have reported this to the court and requested that the contempt order be purged.
"We continue to work through next steps, while continuing to follow standard hospital practice, abide by all legal and regulatory requirements, and importantly - put this patient’s needs first."
Fauquier Hospital filed a "Respondent's statement of compliance and request that contempt order be purged" this morning. The document states: "Fauquier Medical Center permitted Dr. [Martha] Maturi to order and administer Ivermectin on Dec. 13. Ivermectin was administered at 8:46 p.m."
The request also said, "As required by the court's order to provide for a team approach to begin medication, Fauquier Medical Center has permitted Dr. Maturi into the hospital to order and administer Ivermectin. Fauquier Medical Center will ensure that Ms. Davies will continue to receive all other non-Ivermectin care from hospital staff and contractors...
"Fauquier Medical Center respectfully requests that this court purge the contempt order issued on Dec. 13."
Christopher Davies, son of the patient involved in the lawsuit, said that his mother received a second dose of Ivermectin this morning.
UPDATE, 11:30 p.m., Dec. 13: At about 6 p.m. on Monday, Dec. 13, Christopher Davies, son of Fauquier Hospital ICU patient Kathleen Davies, provided to the Fauquier Times court documents signed by Loudoun County Circuit Court Judge James Fisher. According to the documents, Fauquier Hospital was found in contempt of court for “needlessly interposing requirements that stand in the way of the patient’s desired physician administering investigational drugs as part of the Health Care Decisions Act and the federal and state Right to Try Acts.”
Sixty-three year old Kathleen Davies fell ill with COVID-19 in early October and has been on a ventilator in the hospital since Nov. 3.
Through her health care proxy, her husband Donald Davies, Jr., she had requested that the hospital administer Ivermectin, an unapproved treatment for COVID-19, in a last resort effort to save her life.
Fisher signed an order Dec. 9 that the hospital must comply with the request, but as of the time of the contempt hearing Monday afternoon, the medicine had not been administered.
The contempt order said that “No good reason or good cause was given, other than convenience, for the need of a formal “attending physician” when there are at least three physicians involved in the patient’s care. The relief herein can be accomplished without requiring anyone serving in the role of “attending physician.”
According to Monday night’s contempt order, the hospital would have to pay “$10,000 per day, retroactive to the date of the court’s injunction order filing (Dec. 9) and shall continue to pay such sums until the ordered relief has been accomplished.”
The order continued that the hospital could avoid further fines by immediately providing "for a team approach … that allocates care among physicians in a manner that satisfies their convenience concerns, and which begins medication requested by the patient and her physician Dr. Martha Maturi immediately, but no later than 9 p.m. this evening.”
Christopher Davies said a Fauquier Hospital ICU nurse administered Ivermectin to his mother at 8:45 p.m.
ORIGINAL ARTICLE: Christopher Davies and his family are determined to try everything possible to help his mother Kathleen Davies survive a severe case of COVID-19. As of Monday, Dec. 13, he said that she is in the intensive care unit at Fauquier Hospital in Warrenton and has been breathing with the help of a ventilator since Nov. 3. The Davies’ family doctor prescribed Ivermectin, but Fauquier Hospital resisted administering the drug, citing medical, legal and practical concerns. Ivermectin is a drug used most often for parasitic infections; it has not been approved to treat COVID-19.
On Dec. 6, the Davies family took legal action to try to compel the hospital to allow the treatment. After a week filled with four court hearings, the Davies family thought on Dec. 10 that they had won the right to compel the hospital to allow them to administer Ivermectin. But as of Dec. 13, the hospital still reportedly had not transferred treatment responsibility from their own intensivists to a doctor chosen by the family.
Davies’ lawyers, Ralph Lorigo of New York and Christopher Collins of Manassas, have asked the courts for an emergency hearing regarding the hospital’s “refusal to comply” with the court order.
The hospital maintains it is making a good faith attempt to comply.
‘The right to try’
After finding anecdotal and clinical evidence online suggesting Ivermectin’s effectiveness in some COVID-19 cases, Christopher Davies emphasized that he doesn’t know whether or not Ivermectin will help his mother, but he wants the opportunity to try the drug as a “hail Mary” effort to save her.
Davies said in a phone call Dec. 9, “It’s a matter of life and death. She’s on her death bed. Any kind of negative repercussions [from Ivermectin] are null and void.” Davies said that as of Dec. 4, his mother’s oxygen saturation levels were in the 70s and she wasn’t doing well.
Davies said that since the hospital has exhausted every other treatment option, the family should be able to try this admittedly unproven drug.
He said that when he, his sister, father and mother were infected with COVID-19 and became ill in October, they all took Ivermectin at their doctor’s suggestion. Because his parents became sick enough to be admitted to the hospital after a week, they were not able to finish the recommended course of the medication, he said.
“I get it. The doctors at the hospital are afraid. This has become politically charged. I’m not trying to go after the hospital. I just want them to use it in hopes that it will help.
“They believe it’s a fight between the rights of the hospital and the rights of citizens. They feel their rights trump her rights,” said Davies.
While he cares for his father during his recovery from COVID, Davies is on family medical leave from Fauquier Hospital. He is an X-ray CT technologist who works the night shift. He said, “It’s been the hardest thing I’ve had to go through in my life. To be working as a nightshift tech, we are the ones that do the daily ICU X-rays in the morning. I’ve seen firsthand the decline of my mother’s condition.”
The legal battle
The family secured a court order – signed by Loudoun County Circuit Court Judge Jim Fisher -- on Dec. 7 that would have allowed the family to administer Ivermectin to Kathleen Davies. But when Christopher Davies arrived at the intensive care unit and met with a registered nurse, he was prevented from entering or administering the drug. Davies said that he was permitted to see his mother, but was asked to leave the Ivermectin in his car.
The hospital’s attorney, Tracie Dorfman of Hancock, Daniel & Johnson, P.C., in Fairfax filed a motion that claimed that the court order in the civil suit was delivered Dec. 7 without any input from the hospital, the defendant in the suit. It stated, “The hospital cannot legally or physically administer Dr. Martha Marie Maturi’s order and prescription to administer Ivermectin to Kathleen Davies for a number of reasons…”
The reasons were outlined in the motion and are summarized here:
- The prescription at issue was written by Dr. Maturi of Fairfax, who does not have privileges to practice at Fauquier Hospital. Dr. Mauri is not board certified in critical care medicine or emergency medicine. According to the motion, she does not have the qualifications to provide care to patients who are inpatients in the ICU setting.
- None of the physicians caring for Kathleen Davies “believe Ivermectin is in Ms. Davies’s best interests and all have refused to prescribe.”
- The nurses working at the hospital “cannot administer medications without an order by a physician with hospital privileges. They cannot administer medications written by outside providers, such as family physicians, etc. that were not ordered by a physician with privileges at the hospital.” If a nurse were to do so, they would be subject to discipline by the Virginia Department of Health.
- According to the Dec. 7 court order, the hospital is required to follow Dr. Maturi’s prescription and administer Ivermectin without any limitations or qualifications or the ability to modify. The motion asks, “What if Ms. Davis’s condition deteriorates further or she codes, are the providers to continue the Ivermectin?… With the orders as written, Ms. Davies’s trained, qualified and dedicated physicians and nurses will be stripped of their medical judgment and put in a position that may be detrimental to Ms. Davies’s wellbeing.”
In response to Davies’ research into Ivermectin, the hospital also attached clinical and anecdotal evidence casting doubts on the efficacy of the drug in treating COVID.
On Dec. 9, Fisher considered the hospital’s arguments and ruled that the hospital must transfer care of the patient to the patient’s chosen physician and allow that physician to attend the patient and direct their care.
The hospital had argued that the family’s physician could not direct patient care because she does not have privileges at Fauquier Hospital. But Fisher said in his ruling Dec. 9 that the requirement that a doctor have privileges is not written into state code and is therefore not a prerequisite.
Fisher also wrote in his decision that although hundreds of pages of legal and medical documents were submitted by both sides to support their arguments, “the court finds it unnecessary to descend into an analysis of the merits of Ivermectin as a treatment protocol.”
He wrote, “The specific provisions of the Health Care Decisions Act of Virginia control the rights of the parties and sets out a statutorily specific authority of the court to rule…. An agent operating under an Advance Medical Directive, as is the case here, is authorized with ‘full power to make health care decisions for [the patient]. The agent may consent to … medication,” and may “hire and fire [the patient’s] health care providers… That is what happened here.”
Christopher Davies and his family were pleased with the judge’s decision last week. Davies said, “After I read it, I understood that he is giving her emergency privileges so we can try it.” At the same time, Davies said, “He is steering clear of practicing medicine from the bench.”
Most recent developments
A motion was filed by Davies’ attorneys the evening of Dec. 10, requesting an emergency hearing “regarding defendant’s refusal to permit treatment of Kathleen Marie Davies by plaintiff’s doctor, Martha Marie Maturi, M.D.”
The motion reads: “In the hours following the court’s entry of the order, counsel for plaintiff spoke with defendant’s counsel and arranged to have Dr. Maturi provide the information requested by defendant so that Dr. Maturi could be granted the temporary privileges…”
The motion continued that Dr. Maturi provided a significant amount of information, but after “hours of waiting,” defendant’s counsel announced that the defendant could not comply with the order because Dr. Maturi “refused to accept the transfer of care for Mrs. Davies.” The motion claimed this was not true.
The motion asked for the emergency hearing to address the acts of the hospital, which it said are “effectively running out the clock on Mrs. Davies’s life.”
Fauquier Hospital’s spokeswoman Elizabeth Harris said because of the ongoing litigation and patient privacy concerns, she could not comment on the case.
But Monday morning, the hospital’s attorney filed an opposition to the motion, stating that the hospital was attempting to comply with the court order, but: “Following multiple discussions and the submission of Dr. Maturi’s qualifications, Dr. Maturi and the defendant recognized that Dr. Maturi would not be able to care for the plaintiff in an ICU setting, including her lack of experience caring for patients in the hospital (she has not done so for over 10 years) and the practical difficulties of her being available at the hospital quickly, given where Dr. Maturi currently resides.”
The opposition documentation continued that the hospital attempted to find other medical professionals who would be willing to administer the Ivermectin, including three anesthesiologists, but all three declined.
The objection concludes, “Fauquier Medical Center requests that Dr. Maturi be made available to testify under oath regarding her qualifications, the discussions, steps taken and ultimate decision that she is unable to care for Mrs. Davies. Both parties have been working together to comply with the court’s order; however, as it stands, neither the hospital nor the plaintiff has been able to find a physician capable of assuming care for Mrs. Davies while she remains in critical condition in the ICU.”
Davies said that at 11:25 a.m. on Dec. 13, his counsel advised him not to say any more.
Court records show that on Dec. 13, Judge James Fisher sealed all records in the case.
Reach Robin Earl at email@example.com