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The court ruled that the PREP Act barred the family’s claim against the hospital because the act grants immunity from liability for any “covered person” for any claim of loss “caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.”

by Brenda Baletti, Ph.D. | September 23, 2024

Nevada’s Supreme Court last week dismissed a lawsuit against a hospital and two of its doctors who stopped treating a COVID-19 patient with ivermectin and replaced it with remdesivir and other drugs.

The patient, Hal de Becker, was released from the hospital soon after and died in May 2021.

According to the lawsuit, the change in treatment was made against the family’s explicitly expressed wishes and without consulting them.

The family sued the hospital and doctors for negligence and wrongful death, alleging the doctors and hospitals were aware of scientific evidence supporting ivermectin’s effectiveness, but instead made treatment decisions influenced by politics and the media.

They also alleged that by failing to consult with de Becker’s family or his family physician about the treatment decisions, the doctors and hospital violated their right to informed consent.

The court ruled that the Public Readiness and Emergency Preparedness (PREP) Act barred the family’s claim against the hospital because the act grants immunity from liability for any “covered person” for any claim of loss “caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.”

A “covered countermeasure” includes drugs, vaccines, devices or other products authorized to treat people during a declared medical emergency or security threat.

The court ruled that because the PREP Act makes it impossible to sue doctors and hospitals for failing to provide informed consent when they administer a covered countermeasure, including remdesivir, the plaintiffs had no grounds to sue.

It also made a more technical ruling that even if the PREP Act hadn’t prevailed in this case, the plaintiffs hadn’t provided the correct, specific legal documentation necessary in their expert affidavit to show the doctors engaged in professional negligence — and they were not allowed to amend their filing.

The affidavit did provide sufficient documentation for the negligence claim against the hospital, the court ruled. However, the court dismissed the case because the PREP Act takes precedence over any state laws governing informed consent.

Kim Mack Rosenberg, general counsel for Children’s Health Defense, told The Defender the court’s decision demonstrates the urgent need to change laws like the PREP Act, which gives total legal protection to pharmaceutical companies, doctors and hospitals that violate fundamental rights.

“While we are disappointed in the court’s decision, it does serve to highlight that we need legislative action to undo the damage created by acts such as PREP and the 1986 National Childhood Vaccine Injury Act,” she said, adding:

“The decision illuminates the way in which PREP has essentially run roughshod over other laws, including here, state informed consent law.

“The court found that a claim based on failure to obtain informed consent to administer a covered countermeasure is barred by the PREP Act. It is concerning that simply because a pharmaceutical product is defined as a ‘covered countermeasure,’ doctors can ignore, without repercussions, an obligation to obtain informed consent.

“The status of a product should not determine a patient’s rights to make a decision about whether or not to receive a treatment.”

The state Supreme Court decision upheld a ruling by a Nevada district court from Oct. 21, 2022, dismissing the complaint.

Less than two weeks later, the plaintiffs appealed the dismissal and both sides filed a series of briefs with the Supreme Court.

“We disagree with and are disappointed by the Nevada Supreme Court’s ruling, which runs contrary to settled law regarding the scope and purpose of the PREP Act,” plaintiffs’ attorney Scott James Street told The Defender. “We are especially disappointed with the Court’s decision to issue its opinion without hearing oral argument in this important case.”

Street called the decision “a blow both to judicial transparency and medical freedom” and said the plaintiffs are considering their options going forward.

Physicians ‘not supposed to make decisions based on political pressure or media narratives’

In spring 2021, Hal de Becker developed COVID-19 symptoms. His family physician began treating him with ivermectin, to which he reportedly responded well.

Out of an “abundance of caution,” he was admitted to Desert Springs Hospital Medical Center in Nevada where he could be constantly monitored in case his symptoms worsened.

Two doctors, Khuong T. Lam and Shfali Bhandari, oversaw his care, each acting as his attending physician on different days. The doctors stopped his ivermectin treatment without consulting de Becker, his family or his personal physician and began treating him with other drugs, including remdesivir, the plaintiffs alleged.

His condition deteriorated rapidly and he died shortly after he was discharged on May 13, 2021.

Family member Gavin de Becker and Brian de Becker, Hal’s son and his estate’s representative, filed the lawsuit on April 26, 2022. They alleged that a doctor at the hospital had initially approved Hal’s treatment plan, but that someone at the hospital later overrode the plan.

The family also said that during this time a lawyer representing the family attempted to contact hospital executives and the doctors, but received no response. The family also offered to sign a waiver of liability if the hospital would continue to give Hal ivermectin.

They also allege that the doctors’ and hospital’s decisions were based on media claims about ivermectin and that no medical professional consulted with Hal and his family about his treatment options.

Instead, they said, the decisions about Hal’s treatment were “dictated by non-medical policymakers at the hospital who were bowing to political pressure and [by] the attending doctors [Lam and Bhandari],” who had “no regard for the research findings” on ivermectin.

Dr. Pierre Kory, author of “The War on Ivermectin: The Medicine That Saved Millions and Could Have Ended the COVID Pandemic,” reviewed the original complaint along with medical records from Hal’s hospital stay and provided an expert affidavit for the case.

Kory said the failure to consult the family and the decisions the doctors made about treatment violated the doctrine of informed consent, fell below the standard of care that would have been appropriate and that the failure to meet the standard of care resulted in Hal’s death.

Kory faulted the doctors for giving in to media and political pressure about ivermectin. “Physicians are not supposed to make decisions based on political pressure or media narratives,” he wrote. “They are supposed to do their own research, follow the doctrine of informed consent and exercise reasonable care in treating their patients.”

The plaintiffs also noted that “spring/summer of 2021 represented the height of ivermectin hysteria in America.” That was when the U.S. Food and Drug Administration (FDA) issued social media posts deriding ivermectin that its own attorney later admitted were “unquestionably beyond its authority.” The agency removed the posts in order to settle a lawsuit against it.

Until PREP Act declared unconstitutional, ‘let the patient beware’

The Nevada Supreme Court decision was based on the broad language of the PREP Act that says “a covered person” — which in the de Becker case includes the doctors and hospital — is immune from liability under state and federal law for all claims of loss related to the administration of countermeasures.

It points out that there is no dispute that the providers are covered persons, that remdesivir — authorized for emergency use by the FDA in May 2020 — is a covered countermeasure, or that Hal died after taking it.

However, the plaintiffs did not simply allege that treating Hal with remdesivir led to his death, which they conceded would be covered by the PREP Act. They alleged instead that negligent decisions, including taking him off ivermectin, led to his death and that just because the doctors administered a protected countermeasure, they should not be protected from all negligent actions.

“Under settled law, the mere fact that Respondents treated Hal with remdesivir at some point does not give them blanket immunity for other acts of negligence that occurred while Hal was in their care,” the plaintiffs’ attorney argued in a brief.

The court’s decision follows several decisions issued by courts across the country over the last few years to dismiss cases brought by plaintiffs challenging the liability protections of the PREP Act for COVID-19 countermeasures.

CHD outside counsel attorney Ray Flores, who specializes in the PREP Act, told The Defender, “PREP is medical tyranny in the extreme. The ruling in this case provides one more example of how PREP’s foreclosure of traditional remedies in essence condones everything from negligence to homicide.”

“I predict that PREP’s provisions will soon be determined to be unconstitutional,” Flores added, but cautioned, “Until that time, take responsibility for your health. My advice is simple: if you must avail yourself of medical treatment, Caveat Aeger — let the patient beware.”

Brenda Baletti, Ph.D., is a senior reporter for The Defender. She wrote and taught about capitalism and politics for 10 years in the writing program at Duke University. She holds a Ph.D. in human geography from the University of North Carolina at Chapel Hill and a master’s from the University of Texas at Austin.