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  • May 09, 2023

    Nephew Failed to Show Likelihood of Success on Ivermectin Injunction

    A circuit court erred by issuing an injunction ordering a hospital to credential a physician who would administer ivermectin to a COVID-19 patient because it did not cite a legal basis for the injunction, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    A Nurse In A Faceshield, Hood, and Surgical Mask Holding Out To The Camera a Pill Man

    May 9, 2023 – A circuit court erred by issuing an injunction ordering a hospital to credential a physician who would administer ivermectin to a COVID-19 patient because it did not cite a legal basis for the injunction, the Wisconsin Supreme Court has ruled.

    In Gahl v. Aurora Health Care, Inc., 2023 WI 35 (May 2, 2023), the supreme court also held (6-1) that the circuit court failed to reference any basis for determining that the party seeking the injunction had demonstrated a probability of success on the merits.

    Justice Ann Walsh Bradley wrote the opinion for the majority, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, Justice Rebecca Dallet, Justice Brian Hagedorn, and Justice Jill Karofsky. Justice Rebecca Bradley 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 Intensive Care Unit (ICU).

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, 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 given the provider’s education, training, and experience.

    On Oct. 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 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.

    The court of appeals reversed the circuit court. Gahl appealed.

    Circuit Court Failed to Support its Decision

    Before the supreme court, Gahl argued that three bases existed for the circuit court’s authority to issue the injunction:

    • the power of attorney statute (Wis. Stat. section 155.30(1));

    • the circuit court’s inherent authority; and

    • a theory of implied contract, between Zingsheim and Aurora.

    But Justice A.W. Bradley explained the supreme court would not take up any of those arguments, because the circuit court failed to cite any law in its oral ruling or its written order.

    “This in itself constitutes an erroneous exercise of discretion,” A.W. Bradley wrote.

    Justice A.W. Bradley acknowledged that the circuit court discussed the four factors, including whether the moving party had shown a reasonable probability of success on the merits, required before an injunction may be granted. But that was not enough, she explained.

    “From a review of the circuit court’s order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance,” A.W. Bradley wrote.

    “Without identifying the legal basis it accepted, the circuit court cannot support the conclusion that Gahl has demonstrated a reasonable probability of success on the merits.”  

    A circuit court is not required to cite any “magic words” when exercising its discretion, Justice A.W. Bradley pointed out.

    “But the record must make clear that the circuit court examined the relevant facts, applied a proper standard of law, and using a demonstrated rational process, reached a conclusion that a reasonable judge could reach,” A.W. Bradley wrote.

    Dissent: Majority Ignores Standard of Review

    In her a dissent, Justice R.G. Bradley acknowledged that the circuit court’s ruling was not as clear as it could have been.

    But she argued that the majority opinion cut against the principle that when reviewing a circuit court’s exercise of discretion, an appellate court should employ a highly deferential standard of review.

    “Although the [circuit] court’s analysis could have been more meticulous, this court has never required the detailed explanation the majority now demands,” R.G. Bradley wrote.

    Justice R.G. Bradley argued that no judge on the court of appeals had suggested that Zingsheim had an alternate, adequate remedy at law.

    “Death is irreversible,” R.G. Bradley wrote. “There is no remedy at law or otherwise.”

    She also argued that, contrary to the majority’s assertion, Gahl had stated a claim by asserting a legal basis for his motion: Article I, Section 1 of the Wisconsin Constitution and the state’s informed consent statute.

    “As a matter of natural law, people have a right ‘to make their own health care decisions,’” Justice R.G. Bradley wrote. “This right to self-determination is protected by Article I, Section 1 of the Wisconsin Constitution, which this court has held protects an ‘independent right to liberty include[ing] an individual’s choice of whether or not to accept medical treatment.’”

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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