Oct. 11, 2022 – The Wisconsin Supreme Court has added five cases to its docket. In one case, Gahl v. Aurora, the court will consider whether a circuit court improperly ordered a hospital to allow ivermectin to be administered to a COVID-19 patient.
John Zingsheim tested positive for COVID-19 in Sept. 2021. He was admitted to a hospital owned by Aurora Health Care, Inc. (Aurora), transferred to the ICU, and placed on a ventilator.
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 obtained a prescription for ivermectin from Dr. Edward Hagen, M.D., a physician licensed in Wisconsin but not credentialed at Aurora.
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.
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 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.
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.
Aurora argued 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.
The circuit court issued an order under which 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 held that the circuit court erred by granting Gahl the injunction.
Gahl failed to show a reasonable likelihood of success on the merits, the court of appeals held, because he hadn’t demonstrated that administering ivermectin to his uncle would meet the acceptable standard of care.
State v. Hoyle
In 2018, a Chippewa County jury convicted Tomas Jaymitchell Hoyle on two counts of second-degree sexual assault and two counts of second-degree sexual assault of a child less than sixteen years of age.
Hoyle did not testify during the trial. The state’s main witness was Hannah, Hoyle’s alleged victim.
Hannah testified that Hoyle sexually assaulted her in the back seat of a car. When he took her home, Hannah said, Hoyle told her that “if anyone finds out about this, someone is going to end up dead.”
During his closing argument, the prosecutor argued repeatedly, over the objections of Hoyle’s lawyer, that Hannah’s testimony was “uncontroverted.” He also told the jury that they “heard no evidence disputing [Hannah’s] account of the sexual assault.”
The Court of Appeals District III reversed the circuit court. The Fifth Amendment bars a prosecutor from commenting on a defendant’s decision not to testify, the court of appeals explained.
Wisconsin Court of Appeals precedent establishes a three-factor test for determining whether a prosecutor’s remarks about a defendant’s failure to testify is constitutionally improper, Gill explained.
The remarks must reference the failure to testify, propose that that failure demonstrates guilt, and not be a fair response to an argument advanced by the defendant.
On appeal, Hoyle argued that because he and Hannah were the only witnesses to the alleged sexual assault, he was the only one who could controvert Hannah’s testimony.
That meant, Hoyle argued, that the only way the jury could accept the prosecutor’s suggestion that it draw a negative inference from the lack of testimony contradicting Hannah’s testimony was by drawing a negative inference about Hoyle’s decision – one protected by the Fifth Amendment – to not testify.
In reply, the state relied on State v. Bies, 53 Wis. 2d 322, 193 N.W.2d 46 (1972).
In that case, the Wisconsin Supreme Court held that the prosecutor did not violate the defendant’s right against self-incrimination when he stated that the evidence against the defendant was “uncontroverted.”
The court of appeals held that Hoyle met all three factors of the relevant test established under court of appeals precedent, and remanded the case to the circuit court for a new trial.
Rennick v. Teleflex
This case arises out of a product liability lawsuit filed in Milwaukee County Circuit Court in 2015 by Neil J. Rennick.
Rennick underwent surgery to remove a cancerous tumor from one of his kidneys. Clips placed on the kidney by the surgeon to bolster the sutures came loose and caused internal bleeding. Rennick’s symptoms improved after doctors removed the kidney.
Rennick sued the manufacturer of the clips, alleging common law negligence, strict product liability, strict liability misrepresentation, and misleading advertising.
The manufacturer filed a motion for summary judgment; it argued that the learned intermediary doctrine limited any duty it had to warn of risks associated with the clips.
Under the learned intermediary doctrine, a manufacturer of a medical product fulfills its duty to warn if it warns the prescribing doctor of the risk. In Rennick’s case, the manufacturer argued, the surgeon would not have behaved any differently if he had been warned about the risk of the clips migrating post-surgery.
Rennick argued that the manufacturer knew or should have known that there was risk the clips would migrate from where they were attached by the surgeon and should have included warnings about that risk. The circuit court granted summary judgment for the manufacturer.
The Court of Appeals District I pointed out that Wisconsin courts have not adopted the learned intermediary doctrine. In any case, the court of appeals held, the doctrine would not apply to Rennick’s case because the manufacturer hadn’t warned the surgeon.
The court of appeals also held that the circuit court erred by applying the learned intermediary doctrine to Rennick’s claims that were not based on alleged failure to warn.
Because there was a genuine issue of material fact about whether a warning from the manufacturer would have caused the surgeon to change his behavior, the court of appeals remanded the case to the circuit court.
State v. Anderson
In this case, the supreme court will consider whether a person was properly committed and ordered to take medication.
Wilson P. Anderson was involuntarily committed by a Milwaukee County Circuit court in March 2020 after being charged with misdemeanor battery and disorderly conduct. Anderson allegedly attacked a stranger on the street in Milwaukee and screamed profanity at her.
According to records compiled by the Milwaukee County Behavioral Health Division (MCBHD), Anderson had been admitted to inpatient facilities five times since 2011 and had been diagnosed with schizoaffective disorder.
Dr. Collins, a psychologist, examined Anderson and concluded that he was not competent to stand trial but the administration of medication was likely to render him competent to stand trial. The circuit court agreed with the psychologist and ruled that prosecuting Anderson would significantly further the state’s interest, given the nature of the charges filed against him.
Anderson argued that the circuit court failed to properly apply the four-factor test for the constitutionality of the involuntary administration of medication established by the U.S. Supreme Court. In particular, he argued that Dr. Collins was not qualified to provide expert testimony on the four factors because she was not a psychiatrist.
The Court of Appeals District I held that the circuit court properly applied the test. The court of appeals also held that the circuit court properly relied upon Dr. Collins’ testimony, given her 20 years of experience as a psychologist and her reliance on the records complied by MCBHD.
Walworth County v. M.R.M.
In this case, the supreme court will consider whether its decision in an involuntary commitment case issued last year – Waukesha County v. E.J.W., 2021 WI 85, 399 Wis. 2d 471, 966 N.W.2d 590 – applies retroactively or prospectively.
In EJ.W., the supreme court held that courts must use the date of the actual hearing – rather than the date of the originally scheduled hearing – when determining whether a person challenging an involuntary commitment has complied with a statute that requires a demand for a jury trial be made 48 hours before the date of the hearing.
In January 2021, a Walworth County Circuit Court involuntarily committed M.R.M. for six months. In July 2021, Walworth County filed a recommitment petition. The hearing on that petition was postponed to August 2021.
When M.R.M. demanded a jury trial on the petition in August, the circuit ruled that he should have made the demand 48 hours before the hearing’s originally scheduled date in July. The circuit court based its ruling on a Wisconsin Court of Appeals decision – later overruled in part by E.J.W. – that held that a person challenging an involuntary commitment must make a demand for a jury trial 48 hours before the date of the original scheduled hearing.
The circuit court then issued an order extending M.R.M.’s commitment for one year.
The county argued that the Court of Appeals District II should declare that E.J.W. applies only prospectively. M.R.M. argued that the circuit court lost competency to act on the petition for recommitment once his original commitment order expired in August 2021.
The court of appeals held that it was appropriate that the supreme court decide whether E.J.W. applies retroactively or prospectively, and certified the case to the supreme court.