Probably not. But some negligent doctors and pharmacists may face liability for ignoring known risks from the medication.
Wholesale orders and prescriptions for hydroxychloroquine sktyocketed after March 21, 2020. On that day, just as U.S. infections and deaths from the novel coronavirus began to grow exponentially, Donald Trump sent the following two-part tweet, dots, all-caps, nonstandard abbreviations and all.
HYDROXYCHLOROQUINE & AZITHROMYCIN, taken together, have a real chance to be one of the biggest game changers in the history of medicine. The FDA has moved mountains – Thank You! Hopefully they will BOTH (H works better with A, International Journal of Antimicrobial Agents)…..
….be put in use IMMEDIATELY. PEOPLE ARE DYING, MOVE FAST, and GOD BLESS EVERYONE!
Immediately, and for a month afterward, Fox News and other right-wing media outlets touted the prescription drug that is most often used to treat malaria as something of a miracle cure for COVID-19. A snapshot of the spike in positive mentions appears in the accompanying chart.
Were Ordinary Americans Convinced?
Some were. But, then, poison control centers in multiple states reported increases in calls about of “disinfectants” after thepresident suggested injecting such products during a televised White House briefing.
But back to the malaria drug. The State of Utah, for instance, committed to (but did not follow through on) purchasing up to $8 million of hydroxychloroquine. A family in New York family told NBC News that their 65-year-old mother died after taking hydroxychloroquine that was prescribed by a doctor who never tested the woman for COVID-19. About three weeks earlier, an Arizona man swallowed fish medication containing a version of chloroquine that is not approved for human use and died. His wife, who also ingested the pet product, survived and later told reporters that the couple got the idea from the president.
Through the end of April, conservative media and the White House continued touting hydroxychloroquine. Those endorsement came even while evidence mounted that the drug both did nothing to improve outcomes for individuals infected with the coronavirus and induced life-threatening adverse effects.
The U.S. Food and Drug Administration finally stepped in during the week of April 20 and issued “cautions against use of hydroxychloroquine or chloroquine for COVID-19 outside of the hospital setting or a clinical trial due to risk of heart rhythm problems.” Especially when administered in conjunction with the antibiotic azithromycin, hydroxychloroquine increases the time the heart rests between beats. That QT prolongation can trigger a stroke.
Almost immediately, the chorus of praise for the drug combination fell silent.
If They Were Wrong Are They Liable?
If the Fox News and other commentators who encouraged practically indiscriminate use of hydroxychloroquine were simply wrong and merely expressing their wish for a quick and easy COVID-19 cure, no. People cannot be sued for having and sharing sincerely held opinions that are later shown to be unfounded.
And even if some of the loudest voices were knowingly lying, holding them accountable for hospitalizations or deaths from inappropriate hydroxychloroquine use would be exceedingly difficult.
First, a U.S. president enjoys almost total immunity from lawsuits based on what they say. Presidents can face civil liability for certain actions, but their statements receive the highest form of legal protection.
Second, succeeding with a lawsuit against a media figure such as Sean Hannity would require overcoming the incredibly high barriers of proving the person knew they were lying, proving that you completely believed the lie and proving that the only reason you took a harmful action was because you believed the lie.
An attempt to convince a judge and jury of those facts would almost definitely be defeated by counterarguments of contributory negligence.
- When Do I Have Grounds to Sue Over a Medication Error?
- Can I Sue Someone for Giving Me Coronavirus?
- What Is Contributory Negligence?
So, Who Could Be Sued?
Doctors and pharmacists who negligently prescribe, dose and dispense hydroxychloroquine have legal liability for harms suffered by their patients. Note, however, the word “negligently.”
Succeeding with a personal injury or wrongful death claim based on a medication error generally requires showing that the defendant doctor or pharmacist knew or should have known the medication was given in error. As health care providers, doctors and pharmacists have enforceable legal duties to apply their knowledge to protect patients. Breaching that duty is what creates legal liability.
The adverse effects and prescribing criteria for hydroxychloroquine are well-known and easily accessible by medical professionals. As a result, establishing negligent prescribing, dispensing or administration could be possible. Actually receiving a settlement or winning a jury award would also require showing that you were the defendant’s patient.
Rick Shapiro has practiced personal injury law for over 30 years in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad, and medical negligence claims. His success in and out of the courtroom is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer-reviewed organizations for many years. Rick was also named a “Leader in the Law, Class of 2022” by Virginia Lawyers Weekly (total of 33 statewide honorees consisting of lawyers and judges across Virginia).
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