The 2nd U.S. Circuit Court of Appeals is considering whether plaintiffs in two separate lawsuits can continue with challenges to New York State Department of Health (NYSDOH) guidance that physicians should consider whether a COVID-19 patient is of a nonwhite race or Hispanic or Latino ethnicity when assessing risk of severe illness and deciding whether to prescribe scarce oral antiviral treatments.
Lower-court judges in different parts of the state earlier this year dismissed the lawsuits. A Northern District of New York judge dismissed Jacobson v. Bassett, ruling there was a lack of subject-matter jurisdiction. An Eastern District of New York judge dismissed Roberts v. Bassett saying the plaintiff didn’t have standing to bring their claims against the city and state.
But plaintiffs in the two cases are asking the appellate court to reconsider those decisions and allow the lawsuits to go forward.
Physicians say the cases shouldn’t proceed.
The Litigation Center of the American Medical Association and State Medical Societies and the Medical Society of the State of New York (MSSNY) joined about a half dozen other organizations in filing amicus briefs urging the 2nd Circuit to uphold each of the lower court decisions that dismissed the lawsuits. The briefs, similar to their briefs filed in the lower court proceedings, explain the importance of physicians considering rac …