As a former Nebraska attorney general, I have generally declined to comment on legal opinions issued by my successors. However, the recent opinion concerning ivermectin and hydroxychloroquine as off-label medicines for the treatment of COVID-19 is extraordinary.  Moreover, it addresses an issue that potentially affects every Nebraskan who becomes infected with COVID-19, so that it deserves to be highlighted.

The issue, as stated by the current attorney general, is "whether it would be deemed unlawful or otherwise subject to discipline ... for an appropriately licensed health care provider, once informed patient consent has been appropriately obtained, to prescribe ivermectin [or] hydroxychloroquine ... for the treatment or prevention of Covid-19."

Citing Nebraska case law and regulations, the attorney general states the legal standard as follows: "healthcare providers do not violate the standard of care when they select between two reasonable approaches to ... medicine."

What makes the opinion extraordinary is the extremely detailed review of the medical literature concerning ivermectin and hydroxychloroquine.  Well over 275 of the opinion's 304 footnotes refer to medical studies, medical journals, FDA statements, and similar medical authorities.

A brief summary from the attorney general's opinion concerning ivermectin will illustrate the point.

Ivermectin has been used in humans since the 1980s. ... In 2015 its discoverers won the Nobel Prize in Medicine for their work in uncovering it and bringing it to market. ... By 2017, ivermectin had demonstrated antiviral activity against several RNA viruses. ... Before the pandemic, scholarly literature had also recognized ivermectin's anti-inflammatory capacity. ... For more than three decades, ivermectin has also shown itself to be very safe. ...

The Mahmud study ... concluded that patients with mild-to-moderate Covid-19 infection treated with ivermectin plus doxycycline recovered earlier, were less likely to progress to more serious disease, and were more likely to be Covid-19 negative ... on day 14. ...

[The FDA] says that if your healthcare provider writes you an ivermectin prescription, fill it through a legitimate source such as a pharmacy, and take it exactly as prescribed.

Each of these statements is footnoted to the medical literature that supports it.

Similarly, concerning hydroxychloroquine, the opinion states the following:

In 2004, long before the Covid-19 pandemic began, a lab study revealed that chloroquine is an effective inhibitor of the replication of the severe acute respiratory syndrome coronavirus (SARS-CoV) in vitro and thus that it should be considered for immediate use in the prevention and treatment of SARS-CoV infections. ... It is widely recognized in the medical community that hydroxychloroquine is generally safe, so safe in fact that it may be prescribed to pregnant women and children of all ages.

The attorney general's opinion has several practical applications.

First, physicians who were not prescribing ivermectin or hydroxychloroquine for fear that it would jeopardize their Nebraska medical licenses can now prescribe them based on their best medical judgment.

Second, Nebraska pharmacies that have refused to fill prescriptions for ivermectin or hydroxychloroquine for treatment of COVID-19 are now on notice that the failure to fill those prescriptions in the future could result in adverse action against their pharmacy licenses or in civil liability.

Finally, there needs to be more focus by physicians and the news media on pursuing treatments for COVID-19 that will reduce the need for hospitalizations and reduce deaths for people who contract COVID-19.  While vaccines are important, they are not the whole answer.

The attorney general's opinion is available on the attorney general's website.  Health care providers and anyone interested in this issue are encouraged to read it.  Congratulations to Solicitor General James A. Campbell, Assistant Attorney General Mindy L. Lester, and Attorney General Doug Peterson on a well-written, timely, and critical opinion.

Don Stenberg is an honors graduate of Harvard Law School, served for twelve years as Nebraska's attorney general, and has argued several constitutional law cases in the Supreme Court of the United States, including the partial-birth abortion case Stenberg v. Carhart.  He is also the author of the book Eavesdropping on Lucifer, available on Amazon.com.

Image via Pxhere.

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