Illinois appeals panel sides with Elgin hospital in family’s fight to treat COVID-19-stricken couple with controversial drug, ivermectin

An Illinois appellate panel on Wednesday upheld a Kane County judge’s decision denying an emergency temporary restraining order against an Elgin hospital that denied the administration of the controversial drug ivermectin to a hospitalized couple battling COVID-19.

The family of Maria and Sebastian Abbinanti, who were hospitalized for weeks with COVID-19, were seeking a court order aimed at gaining access to the drug as a last-ditch effort to try to save them.

Even if the 2nd District Appellate Court had overruled the circuit judge, however, the decision would have come too late for Maria Abbinanti, 40, who died from the disease last week, just days before Christmas.

“This court is highly sympathetic to the plaintiffs’ worthy goal, which is to pursue every possible avenue that could benefit the Abbinanti’s health,” Justice Mary Schostok wrote in the panel’s decision, before referencing a Texas case. “However, as an appeals court in a sister state has observed, ‘judges are not doctors’ and ‘cannot practice medicine from the bench.’”

Maria Abbinanti and her husband, Sebastian Abbinanti, 41, were admitted to AMITA Health St. Joseph Hospital in late November. The Elgin couple was in ICU intubated, sedated and on ventilators. Doctors said they had tried all approved treatments available to them, but nothing had worked.

The Abbinantis have three young sons ages 4, 9 and 12. Their children last saw them before Thanksgiving, said Maria Faso, Maria Abbinanti’s aunt who hired attorney Patrick Walsh to help gain access to the controversial drug on the couple’s behalf.

Ivermectin is typically prescribed for humans to treat head lice, stomach parasites and rosacea. There also is a formula of it that is prescribed to animals for stomach parasites, according to the U.S. Food and Drug Administration.

While the Abbinantis’ attending physicians agreed to administer the drug, hospital officials denied it because ivermectin has not been approved by the FDA for use in treating COVID-19 and was not in the hospital’s approved coronavirus treatment policy.

Dr. Sergei Lipov in an affidavit said in an affidavit that after he attempted to order the drug for the Abbinantis, it was removed from the hospital’s prescribing system all together.

Walsh filed an emergency motion for an emergency temporary restraining order in Kane County. Judge Robert Villa denied the motion on Dec. 15. Walsh filed the emergency appeal days later.

In the appellate court’s decision, in which Justices Ann Jorgensen and Joseph Birkett concurred, the panel acknowledged how “sad” the situation was and that the couple had received “every treatment permitted under the hospital’s protocols.” However, they upheld that because it is hospital policy not to use treatments that have not been approved by the FDA the court could not intervene.

According to the opinion, the hospital had adopted a policy in September 2021 “prohibiting the administration of ivermectin to treat COVID-19 at its hospitals including at Saint Joseph.”

It also noted that other cases in which patients have sued hospitals to be given ivermectin to treat COVID-19 were denied.

The ruling stated that while the Abbinantis have a right to “reasonable access to care” and the right to “participate in decision-making processes related to their plan of care” they do not have the legal right to “be administered medication that was against the standard of care developed by the hospital.”

They also do not have the right to come between the hospital and its doctors “to force a hospital to allow their doctor to administer drugs that are not within approved hospital policy.

“Dr. Lipov could not treat the Abbinantis with medication forbidden by hospital policy,” Schostok wrote.

The opinion also included a statement by medical associations standing against ivermectin for treatment of COVID-19.

“The American Medical Association (AMA), American Pharmacists Association [APA], and American Society of Health-Systems Pharmacists [ASHSP] have issued a joint statement that they ‘strongly oppose the ordering, prescribing, or dispensing of ivermectin to prevent or treat COVID-19 outside of a clinical trial,’” the opinion stated.

Still, the ruling acknowledged Lipov’s opinion in which he supported the couple receiving the drug “after all of the available protocols to treat the Abbinantis’ COVID-19 had been implemented without any improvement in their conditions, [Lipov] asked to administer ivermectin to them, as requested by their [family members].”

It also included that “Dr. Lipov stated that he had reviewed medical literature promoting such use and had weighed the possibility of adverse impact on the Abbinantis from ivermectin.

“Without stating that he believed that ivermectin would be effective to treat the Abbinantis’ COVID-19, he noted that their families were ‘desperate to help them as much as possible’ and said that he did ‘not see any harm in trying this drug even if only to reassure family members that ‘everything possible’ was done to save the Abbinantis.’”

The opinion concluded with the justices saying they “take no joy in affirming the trial court’s decision here, as we understand the desperation driving the plaintiffs’ quest to explore all avenues for the Abbinantis. But as judges, we must follow the law, and we cannot discern a legal basis on which to grant the plaintiffs the remedy they seek.”

In a statement on Wednesday, Faso said Sebastian Abbinanti remains in the ICU.

“It’s sad that we have come to the point in society where the well-being of an individual is determined by judges in a court room rather than medical professionals,” Faso said in the statement. “These medical professionals were using their education and years of experience to propose a last-ditch effort when all other approved methods had been exhausted.”

An online fundraiser has been set up for the family. As of Wednesday night, it had raised more than $42,000.