977 N.W.2d 756
Wis. Ct. App.2022Background
- Patient John J. Zingsheim, represented by his HCPOA Allen Gahl, was hospitalized and intubated with COVID-19 at Aurora Medical Center—Summit.
- Gahl procured a prescription for ivermectin from Dr. Edward Hagen (who had not examined the patient or reviewed his records) and sought a court order compelling Aurora to administer it.
- Aurora’s treating physicians submitted affidavits that ivermectin was not within accepted COVID-19 standard of care and could cause serious harm; Aurora refused to provide it or to credential Hagen.
- The circuit court issued a temporary injunction ordering Aurora to administer the treatment (later clarified to require credentialing of an outside physician); Aurora appealed and this court stayed the order.
- The Court of Appeals reversed: it held Gahl failed to identify any Wisconsin law or viable claim that would authorize forcing a private provider to administer treatment it deems below the standard of care; the injunction was an erroneous exercise of discretion. A separate dissent would have affirmed.
Issues
| Issue | Plaintiff's Argument (Gahl) | Defendant's Argument (Aurora) | Held |
|---|---|---|---|
| Whether a court may compel a private healthcare provider to administer a treatment the provider deems below the standard of care | HCPOA statute language and form, declaratory/injunctive relief, equitable power permit enforcement of patient/agent treatment requests | No statute, contract, or recognized cause of action allows courts to force private providers to give care that providers conclude falls below the standard of care | Reversed — no legal authority to compel a private provider to administer treatment below its standard of care |
| Whether petitioner showed a reasonable probability of success on the merits (prereq. for temporary injunction) | Evidence and expert declarations (Hagen, Kory) allegedly support efficacy and likelihood of success; HCPOA rights | No viable legal claim alleged; no treating provider supporting the treatment; petitioner failed to identify legal basis to compel care | Reversed — petitioner failed to plead/identify a viable legal claim and so cannot show likelihood of success |
| Whether irreparable harm and preservation of status quo supported the mandatory injunction | Patient’s dire condition and imminent risk of death justified immediate injunctive relief | Patient was reported improving; treatment might cause serious harm; forcing below-standard care risks licensing, malpractice, and broader harms | Court of Appeals: circuit court made no adequate findings; injunction altered status quo and risks irreparable harm and legal consequences for Aurora |
| Whether court could compel Aurora to credential an outside physician to administer the requested treatment | Court may order credentialing to facilitate administration of requested (authorized) treatment | Credentialing is hospital prerogative; court may not force credentialing to effectuate a below-standard treatment | Reversed — no authority to force credentialing to deliver care that is below the standard of care |
Key Cases Cited
- Milwaukee Deputy Sheriffs’ Ass’n v. Milwaukee County, 370 Wis. 2d 644, 883 N.W.2d 154 (2016) (sets four-factor test for temporary injunctions)
- School Dist. of Slinger v. Wisconsin Interscholastic Athletic Ass’n, 210 Wis. 2d 365, 563 N.W.2d 585 (1997) (temporary injunction must be based on a viable legal claim)
- Breier v. E.C., 130 Wis. 2d 376, 387 N.W.2d 72 (1986) (limits and purposes of courts’ inherent/equitable authority)
- Phelps v. Physicians Ins. Co. of Wis., 282 Wis. 2d 69, 698 N.W.2d 643 (2005) (definition/role of medical standard of care)
- Abigail All. for Better Access to Dev. Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007) (no fundamental due process right to access experimental drugs)
- Texas Health Huguley, Inc. v. Jones, 637 S.W.3d 202 (Tex. App. 2021) (courts lack authority to force hospitals to provide treatment they deem below standard of care)
- Mitchell v. Clayton, 995 F.2d 772 (7th Cir. 1993) (no constitutional right to a particular treatment when government reasonably prohibits it)