Aug. 19, 2022 – The Wisconsin Court of Appeals has ruled that a circuit court erred by granting an injunction to a man seeking to force a hospital to administer ivermectin to his uncle.
In Gahl v. Aurora Health Care, Inc., 2021 AP1787 (May 25, 2022), the Court of Appeals District II held that the man failed to show a reasonable likelihood of success on the merits of his claim for declaratory judgment.
Judge Lori Kornblum wrote the majority opinion, joined by Judge Lisa Neubauer. Judge Shelley Grogan dissented.
ICU, Then Ventilator
John Zingsheim tested positive for COVID-19 on Sept. 16, 2021. He was admitted to a hospital owned by Aurora Health Care, Inc. (Aurora) on Sept. 19 and transferred to the ICU.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
On Oct. 13, hospital staff intubated Zingsheim and placed him on a ventilator. Zingsheim’s condition deteriorated rapidly.
Zingsheim’s nephew, Allen Gahl held the health care power of attorney for him. Gahl began to lose hope that his uncle would survive and searched for alternate treatments.
Gahl learned about ivermectin, a medicine approved by the FDA to treat parasitic roundworm infections. The consensus in the medical profession is that ivermectin is not effective for treatment of COVID-19 but a small number of doctors disagree.
Gahl obtained a prescription for ivermectin from Dr. Edward Hagen, M.D., a physician licensed in Wisconsin but not credentialed at Aurora.
Gahl filled the prescription and was ready to deliver it to his uncle but staff at the hospital refused because they concluded that administering ivermectin to Zingsheim would fall below the standard of care.
Court Compels Hospital
On Oct. 7, 2021, Gahl filed a petition for declaratory and injunctive relief in Waukesha County Circuit Court. Gahl sought to force Aurora to administer ivermectin to his uncle.
In its response to Gahl’s petition, Aurora argued that under Wisconsin law, there was no legal authority that would allow a court to order a licensed health care provider to provide treatment that fell below the standard of care in light of the provider’s education, training, and experience.
On Oc. 12, the circuit court issued an order that compelled Aurora to administer ivermectin to Zingsheim. Aurora petitioned the court of appeals for leave to appeal a non-final order.
After holding a show-cause hearing on Oct. 13, the circuit court modified the order. Gahl was to identify a doctor for the hospital to review and put through the credentialing process. Once the doctor was credentialed, he or she would have permission to administer the ivermectin to the Zingsheim.
The court of appeals granted Aurora’s petition for leave to appeal a non-final order. On Oct. 21, Gahl filed an emergency petition to bypass the court of appeals but the Wisconsin Supreme Court denied the petition by a 4-3 vote.
‘We are not Doctors’
In her opinion for the majority, Judge Kornblum explained that to obtain a temporary injunction, a petitioner must show the following: 1) likelihood of irreparable harm if the injunction is not issued; 2) lack of any other adequate remedy at law; 3) that the injunction is necessary to preserve the status quo; and 4) that the petitioner has a reasonable probability of success on the merits.
Kornblum concluded that the circuit court abused its discretion by granting Gahl a temporary injunction because Gahl had not shown a reasonable likelihood on the merits.
The rights Gahl was seeking to vindicate by filing for declaratory relief “are difficult to identify and not well developed,” Kornblum wrote.
“In failing to identify a viable legal claim supporting a declaratory judgment and setting forth reasoned analysis as to why Gahl had a reasonable probability of success, the court erred by plowing ahead and granting temporary relief on the basis of these pleadings,” Judge Kornblum wrote.
Additionally, Kornblum pointed out, Gahl presented no affidavit from a health care provider that administering ivermectin to Zingsheim would meet the accepted standard of care.
“At most, the information he presents suggests that the court should adopt a standard of care different from that which is described by Aurora,” Judge Kornblum wrote. “We do not decide the medical question of what the standard of care should be. We are not doctors.”
Equitable Authority Not Implicated
Gahl argued that the circuit court’s authority to grant a declaratory judgment and issue the temporary injunction was based on Wis. Stat. section 155.30(1), the health care power of attorney statute; 2) a contractual duty implied from the wording of the Hippocratic Oath; and 3) the equitable power to order a licensed health care provider to administer treatment.
But Kornblum explained that nothing section 155.30(1) gives a court the power to compel a health care provider to administer treatment that falls below the level of care.
As for the Hippocratic Oath, Judge Kornblum wrote that “[n]o Wisconsin court has held that the Hippocratic Oath creates an implied contract between a doctor and a patient in this context, and Gahl points to no legal authority for this argument.”
And nothing in Gahl’s petition implicated a court’s inherent powers of equity, Kornblum explained.
“The power to compel a health care provider to provide a requested treatment … is not necessary to prevent impairment of a court’s power or efficacy,” Judge Kornblum wrote. “It is not related to the regulation of the bench or bar. And it is not necessary to ensure that our courts function efficiently and effectively.”
Dissent: Circuit Court Didn’t Err
In her dissent, Judge Grogan argued that the circuit court had not erroneously exercised its discretion by issuing the temporary injunction.
“Notably, the circuit court described the required injunction factors in detail and explained that those factors provided the framework in which it was required to make its decision,” Grogan wrote.
“The circuit court further recognized that Zingsheim’s medical condition, which undoubtedly relates to multiple injunction factors, created an urgent, if not dire, situation.”
Judge Grogan also argued that Wisconsin law recognizes a patient’s right to ask for and receive medically viable alternative treatments.