- Nevada is the only state with a “ban” on hydroxychloroquine for use in outpatient settings
- Doctors across the state have filed a lawsuit to reverse the restriction on prescribing the drug to patients with a positive COVID-19 test in an outpatient setting
- The complaint alleges the actions of Sisolak and some on the administratively appointed “team” amount to practicing medicine without a license in Nevada
- Lawsuit also alleges that the order illegally prohibits doctors from treating their patients
Read the complaint here
Read the recent letter to the Nevada State Board of Pharmacy here
On March 23, 2020, Governor Steve Sisolak of Nevada, in conjunction with the Nevada State Board of Pharmacy, signed a regulation that restricted medical doctors in the state from prescribing two medicines many healthcare professionals worldwide have turned to in their fight against COVID-19; hydroxychloroquine, and chloroquine. Now, Dr. Bruce Fong and the Nevada Osteopathic Medical Association are suing Governor Sisolak, the State of Nevada, and the Nevada State Pharmacy Board for the right to make treatment decisions on behalf of their patients, some of whom, the doctors contend, could die without access to a drug that has shown the potential to save lives.
The suit was filed on April 21st in Washoe County, and because the matter pertains to a declared state of emergency, attorney Joseph Gilbert is requesting a speedy hearing.
Gilbert, Dr. Fong, and NOMA make several contentions in the suit. Governor Sisolak formed a medical advisory team which consisted of the CMO, along with four additional medical experts. The Nevada State Board of Pharmacy then held a hearing to decide on the order, which bars doctors from prescribing (and pharmacies from filling) hydroxychloroquine and chloroquine prescriptions outside of a hospital setting. The complaint alleges that the majority of the advisory team are not licensed to practice medicine in the state, and under state regulation their role is administrative. NOMA and Gilbert argue that “by adopting the Emergency Regulations, the BOP is, in effect, both impermissibly practicing medicine and illegitimately restricting where the practice of medicine can occur.”
In speaking to UncoverDC, Dr. Fong said “There is a sacred tenet, and it is the patient-doctor relationship. Through that relationship, a doctor makes an assessment about that patient’s condition by discussion with their patient, other diagnostic means, etc., and they move forward. A primary physician who has a longstanding relationship with a patient knows that patient better than any other clinician, and much better than any administrative body. So, when you have any administrative body telling you that isn’t OK- not like it’s a poison we are talking about- when that administrative body is prohibiting a physician from writing a script for a medicine that has a high probability to stop illness when used within a specific critical window, it’s frustrating. We now have the pharmaceutical board telling me that I can’t stop someone who appears to be getting worse from going in to the hospital, when there is a treatment option available that would allow me to do so, potentially saving their life.”
Attorney Joey Gilbert told UncoverDC “In essence, Governor Sisolak and the Board of Pharmacy are both practicing medicine without a license, and illegitimately restricting where the practice of medicine can happen in Nevada. Sisolak is using a declared State of Emergency in the middle of a health crisis, and stepping between a doctor and their patient, to proclaim that they know better” In addition, Gilbert said that “all of the concerns that the BOP cited when enacting the Emergency Regulation have already been addressed and resolved at the Federal level. There is no excuse for this.”
The case is personal for him, too. Immediately before the ban, both of his parents were diagnosed with COVID-19, and prescribed hydroxychloroquine as a treatment. His father went from being horribly ill to doing remarkably better within hours of his first dose of the medication. Gilbert said “I have seen this medicine work. Both my mother and my father were extremely ill and getting worse. They were able to obtain the medicine because it was prescribed in the hours before the ban. Both of my parents have now recovered, and both credit their change in condition to hydroxychloroquine”.
On Sunday, March 28th, the chief scientist at the FDA declared that chloroquine phosphate and hydroxychloroquine sulfate meet the criteria concerning safety and potential effectiveness, and that the products are authorized for the treatment of COVID-19 when administered by a Health Care Provider.
When the order was signed, Governor Sisolak cited off-label usage as a concern, and also asserted there would be medicinal shortage leading to a hardship for others already taking the medicine; mainly patients with Lupus and autoimmune disease. The suit establishes that using a drug “off label” is not only widespread in the medical community, its legal. NOMA and Gilbert also detail that there is an adequate supply of the medicine, and that there is more than enough available in the national stockpile to accommodate Nevada. At the time of writing, Nevada is the only state barring their doctors from prescribing hydroxychloroquine and chloroquine to their patients.
The complaint states “Not only has the BOP purported to practice medicine and adopted a regulation that restricts access to a potential life-saving treatment, but it has done so in the midst of a global crisis and healthcare pandemic, to the detriment of Nevada citizens. This unlawful action must be corrected.”
Dr. Fong, President of NOMA, has been vocal about the ban since it was instituted. In an email written by him and sent to all members of NOMA a few weeks ago he states:
“… in my humble opinion, since it is at this stage of initial worsening as an outpatient before hospitalization, that the patient may be developing viral pneumonia, this is a critical window of therapeutic intervention. If we have a reasonably effective anti-microbial agent(s) that can be used at this point, we can limit the spread and damage of said pneumonia and likely prevent its transition into Acute Respiratory Distress Syndrome and the severe complications associated with such including the increased chance of mortality. If we wait until a patient is admitted following the need to meet all of the current admission criteria to a hospital, we may lose the opportunity to stop the complications before they start. Normally all we can do once in the hospital is give supportive care. Even if we begin using the hydroxychloroquine or chloroquine after admission, we may still miss that critical therapeutic window.”
You can read the full letter as an exhibit to the lawsuit, or republished here on his practice website.
Dr. Fong told UncoverDC “People who have no business talking about clinical medicine need to stay out of it. When we make treatment recommendations in these sorts of crisis situations, everyone who takes care of these patients should have a voice and it shouldn’t just be the hospital doctors who are only seeing the sickest and most critical patients.” He added, “What I am worried about is that this declaration prohibits doctors in an outpatient setting from prescribing their patients a potentially lifesaving medication when they are in the critical therapeutic window.“
Dr. Fong's passion is garnering support from elsewhere. On April 23, the Washoe county commission voted four-to-one to support the Nevada Osteopathic Medical Association’s legal challenge to Governor Steve Sisolak’s directive. Another voice in support is Dr. T. Brian Callister, governor of the Nevada chapter of the American College of Physicians. He also testified at the Washoe county commission hearing this past Thursday.
In a final attempt to avoid litigation, Gilbert wrote April 23rd to the Nevada State Board of Pharmacy, in response to a request that NOMA provide their desired outcome for the use of Hydroxychloroquine. Essentially, the letter requests that they change their restriction to allow medical doctors outside of a hospital setting to prescribe the drug to patients who have tested positive for COVID-19. The recent letter even includes an email from Robert Leighton, the Reno emergency City Manager, asking for a review of the decision.
Should Sisolak and the Nevada Board of Pharmacy respond to the letter, NOMA, Dr. Fong, and Gilbert will drop the suit, which is gaining more momentum and support each day.
Tracy Beanz is the Founder and Editor in Chief of UncoverDC. Follow her on Twitter @TracyBeanz
