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Family who took Baylor Scott & White to court over treatment differences hopes to help others avoid their experience

The Carroll family cited the Right to Try Act in an effort to administer a different treatment plan for their wife and mother Carolyn battling COVID-19
Published: Aug. 19, 2021 at 11:28 PM CDT
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COLLEGE STATION, Texas (KBTX) - When it comes to healthcare, especially COVID-19, doctors, patients, and their families aren’t always in lockstep about treatment, and a Milam County family recently faced this challenge and eventually went to court.

Carolyn Carroll is described by her daughter Jodi as both sweet and savvy, and a woman who had a radar for loving service. The mother of three and grandmother of six started feeling sick at the end of June. Carolyn tested positive for COVID-19 and was eventually admitted to Baylor Scott & White Hospital in College Station.

“As we began to form relationships with the nurses and doctors, we understood that they were going to take a cautious wait-and-see approach, rather than a proactive, aggressive approach to treatment,” Carroll said. “That was concerning as you can imagine. We disagreed philosophically from the beginning.”

Jodi says her mom began declining rapidly, so they sought a second opinion from outside doctors and experts who had treated COVID survivors in Carolyn’s demographic and age range. From those consultations, the Carroll family asked to administer an alternative treatment strategy.

“Eventually, we asked an attorney to draft us a Right to Try letter, and finally we ended up in court, unfortunately, asking for a temporary restraining order and a temporary mandatory injunction to have the medication administered,” Carroll said. “We wanted an outside proxy doctor really so that the judge nor the hospital would have to take responsibility for any deleterious outcomes that may result. My mother by every account qualified for the Right to Try, in my opinion.”

The Right to Try Act is a relatively new federal law that was signed in 2018. Gaines West is a local attorney who has been practicing the law for almost 50 years, and he says the act attempts to provide an avenue of relief for patients who have exhausted almost all other treatment options.

“The idea is to allow that family to petition the court or the hospital first to attempt to get an approval for a new drug trial on an investigational drug that is not FDA approved,” West said.

West says the Right to Try Act can’t force a hospital to do anything, as they can review their processes and still decide the alternative treatment is not appropriate for the patient. There is judicial review for those kinds of decisions, he says.

The Right to Try Act is also unable to force drug companies to administer their medications, West says.

“This has to be a joint process with the drug company to want to come in and provide this treatment,” West said. “The drug company cannot make a profit off the use of the drug, either. They can recover costs for administering the drug if it all works out, but they can’t recover a profit.”

West says it is going to take time for the law’s application to develop.

“This is such a new act that it’s going to take several years, if not a decade or more sometimes, to get case law development to really understand how the courts are really going to apply the language in the act,” West said. “I’m glad we have the Right to Try Act because now we have a way that may not be tested yet - it’s not a tried-and-true way - but we do have a way for families and individuals to come in and say, ‘Hey, there is an option here, and we’ve run out of other options, so let’s try this.’”

Carolyn passed away on August 1, just a few days after the family’s request was denied by a judge in a seven-hour hearing.

“We did appeal on the basis of compassion, ethics, science and law,” Carroll said. “But ultimately, we were outwitted and outsmarted by a very professional and savvy legal and medical team of Baylor Scott & White. They were able to bring forth many arguments that unfortunately we were simply not able to combat.”

The whole thing has been a learning experience for everyone involved, and it’s why the family wanted to share their story. Jodi says she wants to save lives and prevent other families from going through their experience.

“From our situation, I encourage everyone to inform yourself about the disease,” Carroll said. “Inform yourself about the early treatment options. Don’t wait to learn. There is early home treatment and preventative medications that can keep people out of the hospital setting.”

West says families can also look at medical negligence laws or reach out to organizations that take complaints if they are unsuccessful using the Right to Try Act.

We reached out to Baylor Scott & White about this case, but they said they do not comment on litigation or an individual’s care due to privacy laws.

Jodi welcomes other families to reach out to her at youcankeepit@protonmail.com for resources, encouragement, and education.

“We have a family saying that says, “Carrolls never quit,” Carroll said. “That is part of our legacy from our precious mother Carolyn who taught us Carrolls never quit, and that is going to apply to our healing and our forgiveness process.”

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