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Appeals Court: Doctors Can Sue FDA for Condemning Ivermectin as a COVID-19 Treatment, Resulting Reputational Harm

Appeals Court: Doctors Can Sue FDA for Condemning Ivermectin as a COVID-19 Treatment, Resulting Reputational Harm

‘Even tweet-sized doses of personalized medical advice are beyond FDA’s statutory authority,’ the appeals court held.

A federal appeals court allowed three doctors to sue the FDA over a series of website and social media posts condemning ivermectin as a treatment for COVID-19. The doctors alleged the FDA exceeded its authority by offering medical advice and “that FDA’s messaging interfered with their own individual medical practice.”

The lawsuit stems from a series of FDA posts advising consumers not to take horse ivermectin but failing to acknowledge the existence of a human ivermectin formulation, including one tweet advising consumers, “Hold your horses, y’all”:

The trial court dismissed the doctors’ lawsuit after finding sovereign immunity barred their three claims. The appeals court reversed on one claim, finding plausible the argument the FDA exceeded its statutory authority by offering medical advice instead of medical information:

FDA is not a physician. It has authority to inform, announce, and apprise—but not to endorse, denounce, or advise. The Doctors have plausibly alleged that FDA’s Posts fell on the wrong side of the line between telling about and telling to. . . . Even tweet-sized doses of personalized medical advice are beyond FDA’s statutory authority. (emphasis original)

The FDA argued its posts were purely informational, which the appeals court rejected:

On the contrary, all six of the Posts contain syntax that is imperative rather than declaratory (for example: “Stop it,” “Stop it with the #ivermectin,” and “Q: Should I take ivermectin to prevent or treat COVID-19? A: No.”) For that reason, we are unable to draw any analytical distinction between FDA making the Posts versus FDA telling Americans to “Stop it” with acetaminophen or antibiotics.

The firm Boyden Gray, which represents the doctors, issued a press release praising the decision:

In a matter critical to stopping federal overreach into the practice of medicine, Boyden Gray PLLC welcomes a decision from the U.S. Court of Appeals for the Fifth Circuit . . . rejecting the government’s blanket assertion of sovereign immunity and allowing the case to proceed.

The Front Line Covid-19 Critical Care Alliance (FLCCC), which submitted a brief supporting the doctors, also praised the decision.

“We are very pleased with this development and extremely proud of our colleagues for taking a stand against a government health agency that is clearly overstepping its authority,” FLCCC president and chief medical officer Dr. Pierre Kory said in the press release.

The doctors prescribed human ivermectin to their COVID-19 and alleged the FDA’s “horse” messaging and recommendation against off-label ivermectin use harmed them professionally.

Dr. Robert Apter alleges he was twice referred to state medical boards for prescribing ivermectin off-label, with the referrals citing the FDA’s posts.

Dr. Apter and Dr. Mary Bowden allege pharmacies refused to fill their ivermectin prescriptions because of the FDA’s posts. Dr. Bowden claims she lost admitting privileges at a hospital after tweeting about using ivermectin to treat COVID-19.

Dr. Paul Marik, co-leader of FLCCC, alleges he lost positions at a medical school and hospital “for promoting the use of ivermectin.”


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I used Ivermectin and I believe it worked!

henrybowman | September 10, 2023 at 11:35 am

No one will be punished except the doctors (who have to hire lawyers).

    MattMusson in reply to henrybowman. | September 10, 2023 at 2:26 pm

    The FDA has sovereign immunity but only when following procedures as described by law. In this case, they were prohibited from telling doctors they could not prescribe ivermectin. But, they did it anyway. So, they are not covered by the immunity.

The District Court judge who originally dismissed the lawsuit, Jeff V. Brown, is a Trump appointee…which is disappointing.

chrisboltssr | September 10, 2023 at 12:54 pm


alaskabob | September 10, 2023 at 1:03 pm


Patients denied prescriptions being filled by pharmacists
Doctors beaten on medical societies, health systems and other doctors

But…they were just following the science…. cough.

    The Packetman in reply to alaskabob. | September 10, 2023 at 3:48 pm

    I was never denied a prescription, but I asked my pharmacist if they would fill a prescription for Ivermectin.

    The answer was a quick and emphatic ‘No’.

      CommoChief in reply to The Packetman. | September 10, 2023 at 4:57 pm

      No pharmacist should be in the position to refuse to fill a RX fo a drug they carry if there isn’t a conflict between existing RX the patient is taking or it isn’t contraindicated. Catching mistakes and offering advice? Sure. Saying no I won’t fill an RX for a drug carried by the pharmacy shouldn’t be an option.

      If a particular Pharmacist has an ethical or professional objection to X drug being prescribed they can find a Pharmacy to work for that doesn’t carry that drug or they can get an SBA loan for their own neighborhood pharmacy. Alternatively they can STFU and fill the RX.

FDA doesn’t need to be sued, it needs to be shut down, unless someone can show where in the Constitution it is specifically authorized to exist. Note that this also applies to about 90% of the Federal government.

AF_Chief_Master_Sgt | September 10, 2023 at 5:17 pm

Can we move now to suing pharmacists, hospital administrators, state medical boards, insurance companies and any other person or organization that interferes with the patient doctor relationship and confidentiality?

There needs to such a blowback against these people that the cost of law suits against them will put them out of business forever.

    artichoke in reply to AF_Chief_Master_Sgt. | September 11, 2023 at 1:25 am

    I think the “state of emergency” will prevent us common folk from collecting a nickel from any of the criminals. This is about doctors suing the FDA.

    Josey Yahoo in reply to AF_Chief_Master_Sgt. | September 15, 2023 at 9:10 am

    I intended to pose the same question, knowing in advance the true answer, although I was going to and in, “What of all who died or merely suffered for a prolonged period after being denied ivermectin and/or hydroxychloroquine? Should there not be a class action suit filed?”
    The FDA nor the CDC are protected by ‘Qualified Immunity’ as they were not acting in ‘good faith’, much more so they were acting as an ad agency for the drug companies, worse yet, they were knowingly covering up the crimes of the drug companies, coconspirators, and charges should be filed!

And yet, here in my town two docs are facing license revocation for prescribing ivermectin to a few covid patients.

artichoke | September 11, 2023 at 1:23 am

They should be able to sue, because after 10 years of their life and a few hundred thousand dollars of med school debt, we no longer trust our doctors and see them as adversaries rather than as our consultants and helpers of our health. It’s not just ivermectin, it’s HCQ, it’s the treatments FDA did endorse, such as doing nothing, remdesivir and ventilators in hospital, etc. They were enemies.

Doctors lives are destroyed even more than ours, their reputations are destroyed — not to say some of them were not complicit in the destruction. FDA is not the only one that should be sued, and ivermectin isn’t the only issue, but it’s a start.

jagibbons | September 11, 2023 at 8:05 am

Ivermectin is a true life saver. It works to help the body to resolve Covid within days. The last two times I tested positive (no vax), I tested and confirmed no more infection within about six days after starting a prescribed 5-day course of Ivermectin. I suspect it works in smaller doses as a preventative, but can’t prove it since I was the first in the family to be infected those times due to the travel and retail work I do. But, no one else in the family got sick or tested positive.

it still isn’t authorized or approved to treat COVID-19
Here’s the thing: Doctors approve off-label use all the time and it’s perfectly legal. So the FDA saying this not only exceeds their jurisdiction, but is a fraud against their own governing laws and regulations. It doesn’t matter if it’s approved, if a doctor is prescribing it off-label.

StillNeedToDrainTheSwamp | September 11, 2023 at 3:42 pm

While I hate class action suits, I wish someone would start one against the big pharmacy chains. I went and got a legally prescribed prescription for ivermectin to replace the animal version my wife purchased, but I could find no place to have the prescription filled here in the Southern California region.

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