UPDATE: Judge holds Fauquier Hospital in contempt for not administering Ivermectin to COVID-19 patient

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 rearl@fauquier.com