State House rejects liability protections for unapproved COVID therapies

State Rep. Brandei Schaefbauer, R-Aberdeen, speaks on the South Dakota House floor on Jan. 17, 2024, at the Capitol in Pierre. In a floor debate Thursday, Schaefbauer said she takes ivermectin during the legislative session. (Photo by Makenzie Huber/South Dakota Searchlight)

The South Dakota House of Representatives defeated a bill meant to serve as a liability shield for doctors and pharmacists who prescribe or dispense two drugs used off-label for COVID-19 treatment.

House Bill 1068, described by one opponent as a “COVID hangover bill,” failed Thursday on a 28-40 vote, with two members excused.   

Had it passed both chambers and earned a governor’s signature, no provider acting “in good faith” could face liability for giving patients ivermectin, approved by the Food and Drug Administration to treat blood parasites, or hydroxychloroquine, approved for malaria, lupus and rheumatoid arthritis.

The drugs are not approved for use in the treatment of COVID-19, but pockets of patients, providers and some officials — including U.S. Health and Human Services Secretary Robert F. Kennedy Jr. — swear by them as treatments for the disease or a prophylactic against infection.

Republican Rep. Brandei Schaefbauer of Aberdeen is one such devotee. 

Bill protecting doctors who prescribe unproven COVID treatments heads to SD House for a vote

She told her fellow lawmakers she takes ivermectin during each legislative session. She forgot it at home this week, she said, and has “been sick these past few days” without it.

To get the drugs for her off-label purchase, Schaefbauer said she signs a liability waiver, promising not to sue her doctor or pharmacist if something goes wrong. 

Fort Pierre Republican Rep. Will Mortenson pointed to Schaefbauer’s comments more than once during his remarks in opposition. 

People like “the good representative from Aberdeen” who want prescriptions for off-label uses ought to decide for themselves to waive their right to sue over complications, he said, and lawmakers ought to stay out of it.

“We did not get sent here by our people to sign their rights away, and that’s what we’re doing,” said Mortenson, who called the bill a “COVID hangover.”

Rep. Leslie Heinemann, R-Flandreau, didn’t use that term, but he did draw a line from the pandemic to the debate on the House floor.

Some patients with willing doctors were denied the drugs in the early days of COVID-19, which Heinemann said eroded doctor-patient relationships and contributed to the spread of mistrust in a medical establishment that’s yet to endorse them.

“I personally know physicians during that time period that were told by pharmacists through phone calls that they could not fill their ivermectin script or they would be under review by their own board of pharmacy,” the retired dentist said.

The blanket liability protection drew persistent opposition, however. The “in good faith” standard for determining if a doctor or pharmacist deserves a shield from legal consequence is too low a bar, argued Rep. John Hughes, R-Sioux Falls.

Hughes, an attorney, said he remembers when a law school professor described “good faith” as “a pure heart and an empty head.”

“What doctor or pharmacist doesn’t have a pure heart” as they work to care for patients, he asked. 

A doctor who acts in good faith can still be negligent, he said, for failing to adhere to a high standard of care. Under the bill, a doctor’s negligence wouldn’t be enough for a wronged patient to win a legal case. 

“I’d love to support this bill,” said Hughes, who said he sympathizes with those who struggled to get the medicines. “I really appreciate and respect the sponsor, but I’m going to have to vote no.”