Not giving prescribed ivermectin

May be a malpractice. Not covered by the Prep Act.

Although many people have lost potential claims due to the inability to file within the statute of limitations, the fight is continuing and rulings are giving us ammunition for the next time, if our government is stupid enough to trigger one.

A great ruling today in New York’s Nassau County in SCOTT D. MANTEL, as Administrator for the Estate of DEBORAH BUCKO v. SOUTH NASSAU COMMUNITIES HOSPITAL d/b/a MOUNT SINAI SOUTH NASSAU. Congratulations to Attorney Steven M. Warshawsky!

From the Court:

As an initial matter, the Court notes that on this record, as thus far developed, there appears to be no dispute as to South Nassau being a “covered person” or Ivermectin being characterized as a “covered countermeasure” within the ambit of PREP. However, contrary to South Nassau’s assertions, the Plaintiff’s complaint neither “pleads a ‘claim[] for loss…relating to’ the use and administration of covered countermeasures to treat COVID-19” nor does it “arise[] solely from...[South Nassau’s] acts and decisions in dispensing covered countermeasures to...[the Decedent] for the treatment of her COVID19 infection”(NYSCEF Doc. No. 17 at pp. 2, 11). Rather, in stunning contrast to South Nassau’s assertions, the complaint alleges, with particularity, that South Nassau “acted wrongfully and negligently, by repeatedly refusing to administer ivermectin to...[the Decedent]” notwithstanding it “having been prescribed” by Dr. Clark and “despite clear evidence in the medical records that...[the decedent’s] condition showed significant improvement once the ivermectin treatment was initiated” (NYSCEF Doc. No. 5 at ¶ 60). In the instant matter, PREP confers “immunity only from ‘any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure’” (Hudak v Elmcroft of Sagamore Hills, 58 F4th 845, 849 [6th Cir 2023] quoting 42 USC § 247d-6d [a][2][B]) and not with respect to “such a measure’s non-administration or non-use” (Hampton v California, 83 F4th 754, 763 [9th Cir 2023]), the latter of which is the central predicate upon which the Plaintiff’s complaint is based. Consistent with the above, the factual claims alleged in the complaint, which must be accepted as true and afforded the benefit of every favorable intendment (Nonnon v City of New York, supra at 827), are unequivocally based upon South Nassau’s “non-administration” of Ivermectin and accordingly the immunity afforded under PREP is inapplicable (Hampton v California, supra at 763).