Court order sought requiring pharmacies to fill controversial COVID-19 prescriptions

by Clark Kauffman, Iowa Capital Dispatch
October 16, 2023

An Iowa physician is seeking a court order that would require pharmacies to fill prescriptions for hydroxychloroquine and ivermectin for the treatment of COVID-19.

The order is being sought as part of a civil lawsuit brought by Dr. David Hartsuch, an emergency medicine physician from Bettendorf, against the Iowa Board of Medicine and Iowa Board of Pharmacy in Scott County District Court.

Hartsuch, a former Republican state senator, alleges the two licensing boards have attempted to discourage patients from receiving “certain lawful prescription drugs” – his lawsuit references ivermectin and hydroxychloroquine — to treat COVID-19.

Two weeks ago, the Journal of the American Medical Association published a study that found roughly one out of 20 U.S. adults report using ivermectin or hydroxychloroquine to treat COVID-19, although neither drug is FDA-approved for that use.

Ivermectin is used in humans to treat infections caused by parasitic worms. In 2020, hydroxychloroquine was briefly authorized by the FDA to treat COVID-19, but the agency reversed itself when clinical studies found the drug was unlikely to be effective and had potentially serious side-effects.

Hartsuch’s dispute with the two state licensing boards dates back to March 26, 2020, when the two panels sent all state-licensed physicians and pharmacists an email with a statement discouraging the use of hydroxychloroquine and azithromycin to treat COVID-19. Hartsuch claims he successfully petitioned the Board of Medicine to reconsider the issue and that on Sept. 11, 2020, the two boards issued a revised statement that said physicians could prescribe the drugs without facing disciplinary action.

In October 2021, one of Hartsuch’s patients filed a complaint with the Board of Pharmacy alleging Hartsuch had prescribed him ivermectin, but an eastern Iowa pharmacy then refused to fill the prescription. The complainant said he asked the pharmacist to sign a form verifying the refusal. After the pharmacist refused, the complainant contacted Hartsuch who called the pharmacy and inquired about the matter.

No public action was taken as a result of the complaint, but a few months later, in January 2022, the Iowa Board of Medicine initiated an investigation of Hartsuch.

Cedar Rapids man denied ivermectin by pharmacy

Court records show that the investigation of Hartsuch focused on three allegations: that he had acted in an unprofessional manner when dealing with a Walgreen’s pharmacist; that he spread misleading information about COVID-19 and its treatment; and that he was prescribing drugs for off-label uses not approved by the FDA to treat COVID-19.

In October 2022, the Board of Medicine wrapped up its investigation and sent a confidential warning letter to Hartsuch reprimanding him for raising his voice to a pharmacist. Two months later, Hartsuch initiated court action against the board, asking a judge to order the board to expunge the warning letter.

In his lawsuit, Hartsuch has claimed the warning letter infringes on his right to free speech and places him “in fear of communicating with any pharmacist at all.” He also alleges he hasn’t worked in emergency medicine since July 2022 and that the letter has prevented him from securing malpractice insurance and returning to work.

The lawsuit claims that only with court intervention will Hartsuch be able to explain to prospective employers that the gap in his work history is attributable entirely to “a rogue Board of Medicine operating outside of their jurisdiction.”

Injunction would force pharmacies to fill prescriptions

As part of his lawsuit, Hartsuch has asked the court to expunge the warning from his “otherwise spotless record” and have the board close the case permanently so he can “resume the practice of medicine without a cloud of impropriety.”

The lawsuit also seeks an injunction that would require Iowa pharmacies to “fill prescriptions for hydroxychloroquine and ivermectin like all other prescription drugs.”

Hartsuch told the Iowa Capital Dispatch on Monday that his lawsuit is intended to force the board to “stop threatening doctors and allow doctors to prescribe off-label drugs – and that’s all I’m asking for.”

As part of the litigation, the Board of Medicine has refused Hartsuch’s request for access to its investigative file on him, arguing that a confidential letter of warning isn’t a disciplinary action that would subject such records to disclosure. The court recently rejected that argument, stating the board cannot “evade judicial review by placing disciplinary action within a confidential letter of warning that purports to close the investigation without initiating a disciplinary proceeding.”

While the Board of Medicine sought to resolve some aspects of the dispute on July 18, 2023, by removing the phrase “Warning Letter” from its October 2022 letter to him – potentially erasing the disciplinary nature of it – Hartsuch has told the court that the board’s initial action has left him with a gap in his work history that “leaves his professional reputation severely damaged.” He claims the warning letter is “the professional equivalent of a scarlet letter to publicly embarrass” him.

In speaking to the Capital Dispatch, Hartsuch noted that the Iowa Board of Medicine has publicly acknowledged investigating at least 17 Iowa doctors over allegations of COVID-related misinformation. He contrasted Iowa’s stance on such matters with that of the licensing board in neighboring Nebraska.

“The attorney general in Nebraska actually came out with a statement that said, ‘Doctors have a right to treat and to prescribe off-label drugs and the board of medicine cannot intervene,” Hartsuch said. “In that state, doctors treated COVID. And the result was that here in Iowa our case fatality rate was 37% higher than in Nebraska. Very similar states, similar populations and yet in our state if you came down with COVID you were 37% more likely to die as a result. And that’s because the board here has been engaged in something that’s illegal and it’s unconstitutional and it’s unlawful.”

In October 2021, Nebraska Attorney General Douglas Peterson issued an opinion that stated “the mere fact of prescribing ivermectin or hydroxychloroquine for COVID-19 will not result in our office filing disciplinary actions.”

According to federal data collected by the Centers for Disease Control and assembled by Worldometer, Iowa has had 1,058,274 cases of COVID-19, and 10,797 deaths. Nebraska has had 574,399 cases of COVID-19, and 5,063 deaths.

Those numbers suggest that of the Nebraskans infected so far, just under 1% have died. Of the Iowans who have been infected, slightly more than 1% have died.

Hartsuch served as a state senator from Bettendorf from 2007-2010 and ran unsuccessfully for U.S. House in 2008.

Chariton doctor reports ‘sham’ investigation

In July, another Iowa physician who has advocated for the use of ivermectin, Dr. Mollie James of Chariton, stated in a post to X, the successor to Twitter: “18 months of a sham board investigation before I was cleared. No accusation of wrongdoing — just holding the threat over my head to silence me. For helping patients who were very sick and hospitalized with covid.”

She also posted, “After 18 long months… Marked safe from Medical board investigations today.”

Since the outbreak of COVID-19, James has gained national attention in some conservative circles for her promotion of ivermectin and hydroxychloroquine in treating the virus, and for her public condemnations of Dr. Anthony Fauci, the Biden administration and much of the medical establishment in general.

Earlier this year, the Lancet published what was billed as the most comprehensive state-by-state analysis of the impact of COVID-19 in various states. The study found a disproportionate number of COVID-19 cases in states that voted heavily Republican in the 2020 presidential election, and indicated the states that imposed more vaccine mandates and mask mandates experienced lower infection rates.

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.