ALLEN GAHL ATTORNEY IN FACT, ON BEHALF OF HIS PRINCIPAL, JOHN J. ZINGSHEIM v. AURORA HEALTH CARE, INC. D/B/A AURORA MEDICAL CENTER - SUMMIT
2021AP1787-FT
COURT OF APPEALS OF WISCONSIN
May 25, 2022
2022 WI APP 29
Neubauer, Grogan and Kornblum, JJ.
†Petition for Review filed; Cir. Ct. No. 2021CV1469
Opinion Filed: May 25, 2022
Submitted on Briefs: January 25, 2022
Oral Argument:
JUDGES: Neubauer, Grogan and Kornblum, JJ.
Concurred:
Dissented: Grogan, J.
Appellant ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the briefs of Jason J. Franckowiak of Otjen Law Firm, S.C., Waukesha.
Respondent ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the brief of Karen L. Mueller of Amos Center for Justice & Liberty, Chippewa Falls.
COURT OF APPEALS DECISION DATED AND FILED May 25, 2022
Sheila T. Reiff Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
STATE OF WISCONSIN IN COURT OF APPEALS
ALLEN GAHL ATTORNEY IN FACT, ON BEHALF OF HIS PRINCIPAL, JOHN J. ZINGSHEIM, PETITIONER-RESPONDENT,
v.
AURORA HEALTH CARE, INC. D/B/A AURORA MEDICAL CENTER - SUMMIT, RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Waukesha County: LLOYD CARTER, Judge. Reversed.
Before Neubauer, Grogan and Kornblum, JJ.
FACTUAL AND PROCEDURAL BACKGROUND3
Gahl‘s Petition for Emergency Declaratory and Injunctive Relief
¶2 Gahl holds the health care power of attorney (HCPOA) for his uncle, John Zingsheim (the patient), who is a patient in the Aurora hospital system. The patient had tested positive for COVID-19. Gahl filed what is titled a “Complaint for Emergency Declaratory and Injunctive Relief” on October 7, 2021.4
¶4 Gahl‘s petition alleges the following information. The patient was in the intensive care unit (ICU) at Aurora Medical Center—Summit (the hospital). According to the petition, the patient “came down with COVID-19 on September 16, 2021.”6 He was admitted to the hospital on September 19, 2021, and was transferred to the ICU. On October 3, 2021, he was intubated and placed on a ventilator. The patient‘s condition then “deteriorated quickly.” The patient was offered and received other treatments, agreed to some, but declined to continue others.7
¶5 Gahl, “losing hope for [the patient‘s] survival,” searched for “an alternative treatment” and became aware of the proposed treatment.8 Gahl supplied information about the proposed treatment, which he contended would save the patient, in exhibits to the petition.9
¶7 Gahl also filed a proposed order to show cause, with an affidavit averring the benefits of the proposed treatment.10 Gahl‘s affidavit makes several claims about these benefits,11 based on newspaper articles and other information, purportedly from medical research, stating that patients who received the proposed treatment recovered.
¶8 None of the information Gahl included with his petition or with his first affidavit came directly from a medical professional. Gahl‘s affidavit also discusses Hagen and his purported professional medical training. He states that Hagen gained all of the information about the patient from discussions with Gahl, confirming that Hagen never met the patient or conferred with the patient‘s treating doctors prior to writing the prescription for the proposed treatment. The affidavit is silent on whether Hagen reviewed the patient‘s medical records. Importantly, Gahl initially did not submit an affidavit from Hagen or any other licensed medical professional with the petition explaining why the proposed treatment was necessary for this patient or within the standard of care.12
¶9 Aurora opposed Gahl‘s petition, arguing that “[t]here is no legal authority in Wisconsin that would authorize a court to compel a licensed health care provider to render treatment or to administer a medication that the provider reasonably believes would be below the standard of care in light of the provider‘s medical education, training and experience.” Further, Aurora argued that Gahl‘s submission and accompanying materials were insufficient to establish the criteria necessary to support a claim for temporary injunctive relief.
¶10 Aurora also observed that Hagen “was never a treating physician for” the patient, he “never periodically saw or examined the patient,” and he “did not even have access to the patient‘s medical records.” Further, there was no evidence presented that the dosage of the medication ordered by Hagen was “appropriate, therapeutic or even ... safe for the patient to take” “under his present circumstances.” Hagen was also “not credentialed” and “not privileged to treat patients at Aurora.” In fact, Aurora raised its concern to the court that the Wisconsin State Licensing Board had previously disciplined Hagen for prescribing medications to a person who was not his patient and whom he had not examined.
Aurora asked the circuit court to deny Gahl‘s request for emergency injunctive and declaratory relief.
¶11 In support of its position, Aurora filed affidavits from the patient‘s treatment providers. The affidavit of David Letzer, D.O., states that he is part of the patient‘s treatment team. He summarizes the scientific information about the proposed treatment and concludes that the opinion of the medical treatment team for the patient is that the proposed treatment is not appropriate and administering the proposed treatment would violate the standard of care. He asserts that neither he nor anyone else on the team is ethically obligated to provide a treatment that violates the standard of care. In addition, the proposed treatment may have adverse effects on the patient, including heart damage, liver damage, stroke, and kidney damage.
¶12 Likewise, the affidavit of James Holmberg, M.D., Chief Medical Officer of Aurora Medical Center—Summit, states that he is familiar with the patient, his condition, and the proposed treatment. He explained that the proposed treatment “can be dangerous to humans and cause hypotension, ataxia, seizures, coma, and even death.” He avers that the proposed treatment is not part of any treatment protocols at Aurora and could cause heart, liver, and kidney damage as well as stroke. He also explained that guidance at that time from the medical community, including the U.S. Centers for Disease Control (CDC), the Food and Drug Administration (FDA), the American Medical Association (AMA), American Pharmacists Association, and American Society of Health-System Pharmacists, warned against the use of the proposed treatment to treat COVID-19. Thus, in his expert medical opinion, administering the proposed treatment “would be neither safe nor effective medical care and would deviate from the standard of care.” In fact, providing the treatment would violate the standard of care. He too observed that neither he nor any member of the staff is ethically obligated to provide treatment that deviates from the standard of care, and he expressed “distress” that a court would consider ordering a hospital to
October 12, 2021 Hearing
¶13 The circuit court held a hearing on the petition on October 12, 2021. At the hearing, the court stated that it presumed the parties were “proceeding under [WIS. STAT. ch.] 813 the injunction—injunctive relief statute in Wisconsin.” The court heard extensive arguments regarding the proposed treatment, acknowledged the requirements for temporary injunctive relief, and ultimately determined that it did not have sufficient information to make a final decision:
I feel that I do need more information .... This is not a decision that a Court makes based on emotion. That‘s not appropriate. So I need evidence, and I—I want more evidence from the treating doctors as to what is [the patient‘s] current medical situation, what is his prognosis, what—what is proposed to move forward. Is there something proposed to move forward, or is this a wait-and-see situation with no other alternatives?
And I‘d like some more information to—to create that connection between this Dr. Hagen prescription and [the patient], because what I‘m seeing here is just—there‘s a prescription written by somebody who really has very limited information about [the patient] .... Other than Mr. Gahl, averring that he has communicated what the hospital has told him, again, there‘s no details of that .... It‘s Mr. Gahl‘s interpretation of what the hospital told him. And I don‘t know where that information comes from, so I don‘t know the viability of that information.
But, you know, the ask here is for this Court to give a directive to some treating licensed medical doctors that they are telling me is contravening their responsibility to their patient. I mean, the divergent positions here couldn‘t be
more extreme. And the consequences of action and nonaction are significant as well.
The court then allowed the parties additional time—until that afternoon—to supplement the record.
Supplementing the Record
¶14 Both Aurora and Gahl submitted supplemental affidavits to the circuit court. Gahl submitted three documents: a second affidavit from himself; an affidavit from Hagen; and a declaration from Pierre Kory, M.D., which was not dated or notarized. In his own affidavit, Gahl affirmed that Hagen never reviewed the patient‘s medical records. Hagen‘s information came solely from Gahl and his wife based on their observations of the patient.13 According to Gahl, he and his wife completed a questionnaire “on an app,” a print-out of which was included as an exhibit to Hagen‘s affidavit.
¶15 Hagen‘s affidavit confirmed that the medical history of the patient was based solely on the statements of Gahl‘s wife, and he wrote the prescription for the proposed treatment based on this information. Hagen gave a medical opinion, based on this third-party history without ever examining the patient, that “based on the patient‘s history ... the administration of [the proposed treatment] at the dosage indicated, gave the patient a realistic chance for improvement while presenting a low risk of side effects.” He stated that he has prescribed the proposed treatment “in about
¶16 Gahl also submitted a “declaration” from Kory. The “declaration” is an unsworn document explaining his support for the use of the proposed treatment for COVID-19 patients. The declaration is conspicuously devoid of any discussion of the patient in this case.14 Kory‘s declaration states that he is “generally considered the foremost expert on [the proposed treatment] in the treatment of COVID-19 in the world” and that the proposed treatment “is extremely beneficial in treating COVID-19 and can substantially reduce the risks associated with COVID-19 and further substantially reduce the deaths patients face from being on a ventilator for a prolonged period of time.”
¶17 In addition to Kory‘s declaration, Gahl also filed what is labeled “sworn” testimony of Kory from a homeland security committee meeting, where Kory discussed the benefits of the proposed treatment for COVID-19. However, like the declaration, nothing in the document indicates that it is sworn “testimony” nor is it attached to an affidavit attesting to its authenticity.
¶18 None of the documents Gahl filed relating to Kory establish that Kory ever examined this patient or spoke with this patient‘s treating medical providers. The documents also do not establish what the appropriate dosage of the proposed treatment is for a patient in this patient‘s condition. At no time did Gahl submit any medical information from any health care professional who had actually examined this patient, reviewed this patient‘s records, or who could give a medical opinion to a reasonable degree of medical probability about the benefits of the proposed treatment on this patient at this time.
¶19 Aurora filed a supplemental affidavit from Holmberg, discussing, in detail, the treatment history and current treatment plan for the patient as of October 11, 2021. According to Holmberg‘s affidavit, to a “reasonable degree of medical probability,” administration of the proposed treatment would have “no beneficial effect” for the patient. Holmberg continued to object to the hospital being forced to provide treatment that fell below the standard of care.
Circuit Court‘s Order
¶20 The circuit court acted on the parties’ supplemental information immediately and signed an order the same day, on October 12, 2021, compelling Aurora to
that pending further order of this Court, [Aurora], their agents, and assigns, and any third parties acting on its behalf, upon receipt of this Order to Show Cause and its supporting papers, shall immediately enforce Dr. Hagen‘s[] order and prescription to administer [the proposed treatment] to [the patient] and thereafter as further ordered by Mr. Gahl.
While the court cited the criteria for granting a temporary injunction at the hearing, the court never applied those criteria to the facts of the case on the record or in the order. The court failed to identify which, if any, legal claim asserted by Gahl in the petition provided a basis for the injunctive relief requested, much less the legal authority supporting such a claim. The order also scheduled a show-cause hearing for October 13, 2021, directing Aurora to demonstrate why the order should not go into effect.
¶21 Later in the day on October 12, 2021, after the circuit court issued its order, Aurora filed a letter objecting to the order. Aurora‘s counsel explained that
[t]he content of the signed Order is extremely problematic. I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for [the proposed treatment] 66mg to be taken once daily. The prescription does not indicate from where [the proposed treatment] is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer [the proposed treatment] “as further ordered by Mr. Gahl.” Mr. Gahl is not a healthcare provider.
For the reasons above, it is my position as counsel for Aurora that my client is unable to comply with the terms of the Order as drafted.
Aurora also immediately petitioned this court for leave to appeal a nonfinal order.
October 13, 2021 Hearing
¶22 At the show-cause hearing on October 13, 2021,15 the discussion focused on the current medical status of the patient and the advantages and disadvantages of the proposed treatment. Aurora advised the circuit court that the
patient had tested negative for COVID-19 and provided information indicating that the patient was improving:16
[The patient] has been weaned off pressors, his parotitis has improved, his transaminitis is better, TPN has been discontinued, and he‘s on a feeding tube, he‘s gone from three chest tubes to one, his acute blood loss anemia is now stable. We provided Your Honor with a list of the medications and therapies that [the patient] is receiving.
Aurora pointed out that Holmberg had submitted a second affidavit showing the patient was improving and questioned why Gahl had not submitted any contradictory affidavits showing the patient was not improving.17 Aurora was concerned that the
¶23 For his part, Gahl‘s counsel put forth a number of anecdotal cases from other states, indicating that circuit courts had approved use of the proposed
treatment. The circuit court did not view these anecdotes as persuasive, noting that they were “interesting” but were not material to the issues before the court. The court focused on the issues regarding this patient, whether to continue the order from the previous day, and if so, how to administer the treatment in practical terms.
¶24 After considering arguments and the entire record, the circuit court summarized its conclusions:
As it stands right now, this Court entered an order that is subject to a petition for leave to appeal to the Court of Appeals, who have not weighed in on it. My intention is to maintain that order, but I am not going to engage in directing the hospital or individuals at the hospital of an individual to administer this medication to [the patient]. I think it‘s incumbent on [Gahl] to supply a medical professional that‘s approved by the hospital for purposes of assisting this patient. But I don‘t think it‘s appropriate for this Court to engage in further orders to the hospital as to how this drug is administered.
They have, they being the hospital, have their rules of whom they admit to practice medicine there and how they do it, and I don‘t think—The Court is taking a significant step in this case by the order that‘s been entered. I think it‘s [Gahl‘s] responsibility for not only supplying the prescription but supplying an individual that meets the approval of the hospital for administration. If Dr. Hagen doesn‘t pass muster, then the petitioner has to find somebody else. But I don‘t think this Court—This Court does not feel comfortable in making any further directives or orders to the hospital as to how that‘s to occur. I think that‘s a responsibility of [Gahl] here and it‘s—That‘s how the Court views it.
The court did agree to a “clarification” of its previous order: Gahl was to “supply or identify a physician that [the hospital] can then review and pass through its credentialing process. And once credentialed, that physician ... will have permission to enter upon [the hospital] and administer the [proposed treatment] as ordered by Dr. Hagen.” At no point did the court issue an oral or written order explaining whether or how Gahl had established the four criteria for injunctive relief. The court also did not identify any claim set forth in Gahl‘s petition which supported the request for relief, much less the legal authority supporting the claim.
Aurora‘s Appeal
¶25 On October 14, 2021, we granted Aurora‘s petition for leave to appeal a nonfinal order prior to Aurora‘s compliance
¶26 Six days later, on October 20, 2021, Gahl filed an emergency petition to bypass the court of appeals. After allowing time for Aurora to respond, our supreme court denied the petition for bypass on October 25, 2021.19
DISCUSSION
¶27 The question before us is whether the circuit court had the legal authority to issue an injunction compelling Aurora, a private healthcare provider, to administer treatment that, in its professional judgment, is below the standard of care or to compel Aurora to credential a non-Aurora medical provider to administer the treatment.20
I. Standard of Review
¶28 A circuit court may issue a temporary injunction if the movant establishes four criteria: “(1) the movant is likely to suffer irreparable harm if a temporary injunction is not issued; (2) the movant has no other adequate remedy at law; (3) a temporary injunction is necessary to preserve the status quo; and (4) the movant has a reasonable probability of success on the merits.” Milwaukee Deputy Sheriffs’ Ass‘n v. Milwaukee County, 2016 WI App 56, ¶20, 370 Wis. 2d 644, 883 N.W.2d 154. Whether to grant or deny injunctive relief is a matter of discretion for the circuit court. Id. (citing State v. C. Spielvogel & Sons Excavating, Inc., 193 Wis. 2d 464, 479, 535 N.W.2d 28 (Ct. App. 1995)).
¶29 A circuit court‘s exercise of discretion will be upheld if it “examined the relevant facts, applied a proper standard of law, and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach.” Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788. “[W]hen the contention is that the [circuit] court erroneously exercised its discretion
because it applied an incorrect legal standard, we review that issue of law de novo.” Hughes v. Hughes, 223 Wis. 2d 111, 120, 588 N.W.2d 346 (Ct. App. 1998). A circuit
II. Reasonable Probability of Success on the Merits
¶30 We first discuss whether Gahl has a reasonable probability of success on the merits. See Milwaukee Deputy Sheriffs’ Ass‘n, 370 Wis. 2d 644, ¶20. A complaint stating at least one viable legal claim is required as an underlying basis for an injunction. School Dist. of Slinger, 210 Wis. 2d at 374. In other words, there must be a viable or protectable legal claim (or right) upon which Gahl would have a reasonable probability of success. A request for a temporary injunction is not a claim in and of itself, but a vehicle to prevent harm while litigation is pending on the underlying claim(s). A temporary injunction is available
[w]hen it appears from a party‘s pleading that the party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure the party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.
¶31 We look to Gahl‘s petition to find at least one viable legal claim, or protectable legal right, that would entitle him to a judgment in the litigation. See School Dist. of Slinger, 210 Wis. 2d at 374. In his petition, Gahl includes two sections that he terms “causes of action.” One is for injunctive relief; the other is for declaratory judgment. Wisconsin‘s declaratory judgment statute allows courts “to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”
¶32 The “rights” upon which Gahl seeks declaratory relief (and which allegedly support the request for temporary injunctive relief pending litigation on the merits) are difficult to identify and not well developed. Nevertheless, Gahl posits a few sparsely identified potential legal theories, or rights, supporting his request for a declaratory judgment at various places within the petition. But the circuit court never addressed any of these legal theories in any written order or at the October 12 and October 13 hearings. 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 on it, the court erred by plowing ahead and granting temporary relief on the basis of these pleadings.
¶33 Both parties agree that the issue presented is whether the circuit court had authority to compel Aurora to administer a treatment that, in its professional judgment, is below the standard of care. Gahl contends that the circuit court had such authority. Aurora disagrees. Aurora presented affidavits and accompanying exhibits demonstrating that the proposed treatment is below the standard of care for this patient. Nowhere does Gahl present affidavits from health care providers showing that the proposed treatment is within the accepted standard of care for COVID-19.
COVID-19. He admits that using the proposed treatment for COVID-19 is not approved by the FDA, as it is an “off-label use of the drug.”21
¶34 Instead, Gahl attacks the standard of care as politically and financially motivated, “a ‘one-size fits all’ Covid-19 Protocol encouraged by the National Institute of Health (NIH) and the Centers for Medicare and Medicaid (CMS) through an intense propaganda campaign and the use of financial incentives/rewards for using some select drugs and by prohibiting the use of other drugs such as [the proposed treatment].” Gahl presents no evidence to support these assertions. He presents no affidavits from medical doctors saying that the proposed treatment is within the accepted standard of care for COVID-19. At most, the information he presents suggests that the court should adopt a standard of care different from that which is described by Aurora. We do not decide the medical question of what the standard of care should be. We are not doctors. We decide the legal question, as both Aurora and Gahl agree, of whether the court has the authority to order Aurora to provide treatment that is below the currently accepted standard of care for COVID-19. In other words, we must determine whether Gahl has identified any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional‘s judgment.
¶35 Before the circuit court, Gahl raised several potential legal bases for the declaratory relief (and consequently, a temporary injunction).22 On appeal, Gahl abandons
Smith Corp. v. Allstate Ins., Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the [circuit] court, but not raised on appeal, is deemed abandoned.“).
¶36 On appeal, Gahl argues that the court‘s authority to grant declaratory judgment (and issue an injunction pending litigation on the merits) was based on one or more of the following: (1) authority derived from a statute concerning HCPOAs,
¶37 We consider the first three arguments but not the fourth because Gahl raised that argument for the first time on appeal. See State v. Bustamante, 201 Wis. 2d 562, 571, 549 N.W.2d 746 (Ct. App. 1996).
A. Health Care Power of Attorney: WIS. STAT. § 155.30(1)
¶38 Gahl argues that the HCPOA provides legal authority for the circuit court‘s ruling. Before the circuit court, he relied on the HCPOA form itself. On appeal, he expands his argument to include a statute in
¶39
NOTICE TO PERSON MAKING THIS DOCUMENT
YOU HAVE THE RIGHT TO MAKE DECISIONS ABOUT YOUR HEALTH CARE. NO HEALTH CARE MAY BE GIVEN TO YOU OVER YOUR OBJECTION, AND NECESSARY HEALTH CARE MAY NOT BE STOPPED OR WITHHELD IF YOU OBJECT.
According to Gahl, the plain meaning of “necessary health care may not be stopped or withheld if you object” is that the patient has “a right to have necessary treatments or drugs such as [the proposed treatment] administered.” He argues that
[t]he language found in the HCPOA form makes it clear that the person executing the HCPOA document has the power under the statute to receive the medical treatment that they request. Implicit in this statement due to the nature of the document being created, is that the Principal not only can expect their “NECESSARY” treatment requests to be honored by medical professionals, but also that this power is transferred to their attorney-in-fact for health care.
¶40 Gahl cites no legal authority for his position, either regarding the form itself or the statute. He asserts that the phrase “necessary health care may not be stopped or withheld if you object” is “clear and unambiguous,” and “[t]he necessity of [the proposed treatment] is ‘inescapable.‘” Further, according to Gahl, “[t]here is no good reason for ‘withholding’ the [proposed treatment] from [the patient] and
¶41 We reject Gahl‘s reading of this statutory language.
¶42 Nothing in the plain language of the statute or the definition of a “health care decision” requires a health care provider to act on the HCPOA‘s requests or demands for specific treatment that is below the standard of care.24 See
B. Breach of Contractual Duty based on Hippocratic Oath
¶43 Gahl‘s second argument is that Aurora breached its contractual duty of “good faith and fair dealing” to the patient “by
¶44 To find a breach of a contractual duty, we need either an express or an implied contract. Gahl has not identified any express contract, and none is present in the record. An implied contract requires evidence that the parties had a meeting of the minds, or a mutual intention to contract with each other. See Kramer v. City of Hayward, 57 Wis. 2d 302, 306-07, 203 N.W.2d 871 (1973) (“A contract implied in fact may arise from an agreement circumstantially proved, but even an implied contract must arise under circumstances which show a mutual intention to contract. The minds of the parties must meet on the same thing.“). Gahl points to no evidence in the record from which we could deduce the existence, nature, or terms of any implied contract between Aurora and the patient that Aurora will provide a treatment that does not meet the standard of care.25
¶45 Instead, Gahl posits that the Hippocratic Oath created an implied contract. According to Stedman‘s Medical Dictionary, the Hippocratic Oath is “[a]n oath taken by physicians usually on receiving the doctoral degree, whereby they promise to observe ethical principles in the practice of medicine.” Hippocratic Oath, STEDMAN‘S MEDICAL DICTIONARY (28th ed. 2006). No Wisconsin court has held that the Hippocratic Oath creates an implied contract between a doctor and a patient in this context,26 and Gahl points to no legal authority for this argument. Usually we do not consider arguments that are unsupported by references to legal authority. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). However, in this case, we write further to emphasize the absurdity of Gahl‘s argument. First, we do not know that this patient‘s healthcare providers even took the oath. Most medical school graduates “appear to regard the exercise as a mere formality or a bow to tradition rather than a legally or morally binding covenant.” Hippocratic Oath, STEDMAN‘S MEDICAL DICTIONARY (28th ed. 2006). Second, if Gahl wants us to find a contract based on the Hippocratic Oath, he has not provided us with any version of the oath that supports what he says.27
C. Circuit Court‘s Inherent Authority
¶47 Finally, Gahl asserts that the circuit court has “equitable authority” to force Aurora to give the proposed treatment. We construe Gahl‘s request for the court to exercise “equitable” power as invoking the court‘s “inherent” authority. See Breier v. E.C., 130 Wis. 2d 376, 388, 387 N.W.2d 72 (1986) (“The issue of equitable authority is a variant of the inherent authority doctrine. It permits a court to grant equitable remedies to private litigants in situations in which there is no explicit statutory authority or in which the available legal remedy is inadequate to do complete justice.“).
¶48 While “circuit courts have ‘inherent, implied and incidental powers,‘” the “powers are those that are necessary to enable courts to accomplish their constitutionally and legislatively mandated functions.” State v. Henley, 2010 WI 97, ¶ 73, 328 Wis. 2d 544, 787 N.W.2d 350 (citation omitted). These powers have been exercised in three areas: “(1) to guard against actions that would impair the powers or efficacy of the courts or judicial system; (2) to regulate the bench and bar; and (3) to ensure the efficient and effective functioning of the court, and to fairly administer justice.” Id. In other words, “inherent powers” are those powers “needed to maintain [the courts‘] dignity, transact their business, [and] accomplish the purposes
¶49 Nothing in this case involves a court‘s inherent powers. The power to compel a health care provider to provide a requested treatment, especially one that the provider deems below the standard of care, does not clearly fall within any of the three areas in which inherent authority has been exercised. It is not necessary to prevent impairment of the court‘s power or efficacy. 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.
¶50 Further, while we agree that circuit courts have “authority to grant equitable relief, even in the absence of a statutory right,” that relief “must be in response to the invasion of legally protected rights.... Obviously, not every perceived injustice is actionable.” Breier, 130 Wis. 2d at 388-89. Again, Gahl has not identified any source of Wisconsin law that gives him or the patient a right to compel a health care professional to administer a course of treatment contrary to that medical professional‘s judgment.
D. Substantive Due Process
¶51 Though not developed in Gahl‘s brief, any contention that the patient has a substantive due process right to receive a particular type of treatment at a private facility is not supported in law. Courts in Wisconsin and other jurisdictions have concluded that a patient does not have a substantive due process right to receive a particular medical treatment. The right to substantive due process derives from the
¶52 Even in cases meeting the threshold determination of state action, courts in this and other jurisdictions have not recognized a substantive due process right to receive whatever treatment a patient demands. See, e.g., Disability Rights Wis. v. University of Wis. Hosp. & Clinics, No. 2014AP135, unpublished slip op. ¶¶ 1, 3 (WI App Dec. 11, 2014) (finding no violation of substantive due process rights of patients treated at a publicly funded hospital where “doctors did not provide potentially life-extending medical treatments to two developmentally disabled patients“)29; Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 697 (D.C. Cir. 2007) (en banc) (finding terminally ill patients do not have a fundamental due process right to access experimental drugs); Mitchell v. Clayton, 995 F.2d 772, 775-76 (7th Cir. 1993) (collecting cases and noting that “most federal courts have held that a patient does not have a constitutional right to obtain a particular type of treatment or to obtain treatment from a particular provider if the government has reasonably prohibited that type of treatment or provider“); Rutherford v. United States, 616 F.2d 455, 457 (10th Cir. 1980)
E. Decisions of courts in other jurisdictions are consistent with our decision
¶53 At the hearing, Gahl‘s attorney argued that he has been successful in persuading other courts to adopt his views about compelling private medical facilities to provide the proposed treatment, noting that he could “provide a dozen or more court orders from judges all around this country who have agreed in terms of equity to provide the patient” with the proposed treatment. (Emphasis added.) No such orders appear in the record. Gahl‘s attorney provided no published opinions, did not provide an affidavit, and did not testify under oath.30
¶54 Courts in eight different states that have considered this issue have reached the same conclusion that we do here: that a court lacks the legal authority to force a private medical facility to provide treatment that it concludes is below the standard of care.31 See Texas Health Huguley, Inc. v. Jones, 637 S.W.3d 202, 214 (Tex. App. 2021) (“The judiciary is called upon to serve in black robes, not white coats. And it must be vigilant to stay in its lane and remember its role. Even if we disagree with a hospital‘s decision, we cannot interfere with its lawful exercise of discretion without a valid legal basis.“); DeMarco v. Christiana Care Health Servs. Inc., 263 A.3d 423, 426 (Del. Ch. 2021); Abbinanti v. Presence Cent. & Suburban Hosps. Network, 2021 IL App (2d) 210763, ¶¶ 18-23 (“Every published appellate decision involving a request by a patient to force a hospital or doctor to administer Ivermectin to treat COVID-19 has rejected that request.“); Frey v. Trinity Health-Michigan, No. 359446, 2021 Mich. App. LEXIS 6988, at *13 (Mich. Ct. App. Dec. 10, 2021) (“Patients, even gravely ill ones, do not have a right to a particular treatment, and medical providers’ duty to treat is coterminous with their standard of care. This court will wield its equitable powers only to enforce a right or duty; in their absence, relief is not available.” (citation omitted)); D.J.C. v. Staten Island Univ. Hosp.-Northwell Health, 157 N.Y.S.3d 667 (N.Y. App. Div. 2021); Pisano v. Mayo Clinic Fla., 333 So. 3d 782 (Fla. Dist. Ct. App. 2022) (“The question here is not about whether Mr. Pisano (or his proxies) may ‘choose life‘; it is whether Mr. Pisano has identified a legal right to compel Mayo Clinic and its physicians to administer a treatment they do not wish to provide. The answer is no.” (footnote omitted)); see also Marik v. Sentara Healthcare, No. CL21-13852, 2021 Va. Cir. LEXIS 219, at *10-12 (Va. Cir. Ct. Nov. 23, 2021); Smith v. West Chester Hosp., LLC, No. CV 2021 08 1206, 2021 Ohio Misc. LEXIS 103 (Ohio C.P. Sept. 6, 2021).
¶55 We too must conclude that Gahl has not identified any Wisconsin law that gives rise to a right upon which he seeks to obtain a declaratory judgment in this case.32 The circuit court erroneously exercised its discretion by granting temporary injunctive relief on the basis of a pleading that fails to state a viable legal claim, and consequently, a claim upon which Gahl could show a reasonable likelihood of success. Although our discussion of the likelihood of success factor is sufficient to support our decision, for the sake of completeness we discuss two of the other preliminary injunction factors below because a review of these factors demonstrates the consequences of ordering injunctive relief when there is no underlying viable claim.
III. Likelihood of Irreparable Harm
¶56 To obtain temporary injunctive relief, Gahl must also show he is likely to suffer irreparable harm if a temporary injunction is not issued. See Milwaukee Deputy Sheriffs’ Ass‘n, 2016 WI App 56, ¶ 20. The circuit court made no findings as to this requirement, and our review of the facts suggests that Gahl cannot show irreparable harm. Gahl argues that irreparable harm would befall the patient due to his health condition. Yet, by the time of the hearing on October 13, the patient had tested negative for COVID-19 and was reported to be improving.
¶57 On the other side of the ledger, Aurora raised several concerns about the likelihood of the mandatory injunction causing irreparable harm not only to the patient but to Aurora‘s own licensing status and that of its doctors when there is no viable legal claim, and in fact, the order requires Aurora to operate outside the boundaries of the law—below the standard of care. Regarding the patient, Aurora‘s affidavits show that the treatment providers were concerned that the proposed treatment itself could cause harm to the patient, including damaging his heart, liver, and kidney, and increasing the risk of
¶58 Aurora also raised concerns that it could suffer irreparable harm in the form of exposure to civil liability for acting, albeit under court order, below the standard of care. Again, the circuit court did not make any findings about this issue other than to authorize Aurora to draft, and Gahl to sign, a release of liability. The court order did not absolve Aurora of liability or resolve how the parties were to address the scope of the release, much less the implications when other patients demand treatments that health care providers determine are below the standard of care. See, e.g., Frey, No. 359446, 2021 Mich. App. LEXIS 6988, at *13 (Although the plaintiff had offered to sign a release, “the potential harm to defendants is broader than this one case, because a court directive in this matter could open the door for a flood of similar suits from other patients with COVID-19, not to mention other conditions, suing to obtain care that is contrary to hospital policies.“). Ultimately, whether a release would shield Aurora and its health care professionals from liability could remain uncertain until decided in future litigation.34
¶59 Aurora raised further concerns, which the circuit court failed to address, about Aurora‘s medical licensing status and those of its doctors and nurses who would be required to violate their duty of care. According to Aurora, it is licensed to provide care under federal regulations governing Medicare, which require a hospital to adhere to minimum standards of care. See
IV. Preservation of the Status Quo
¶60 Finally, the third criterion for temporary injunctive relief pertains to maintaining the status quo between the parties until the litigation ends. Milwaukee Deputy Sheriffs’ Ass‘n, 370 Wis. 2d 644, ¶ 20. As noted above, usually “[t]he purpose of a temporary injunction or restraining order is to maintain the status quo and not to change the position of the parties or compel the doing of acts
¶61 The circuit court did not address this factor directly, but it is of paramount importance given the concerns Aurora provided to the court and the affirmative relief ordered. The status quo before the litigation was that Aurora was able to exercise its medical judgment as to patients in the hospital within the bounds of its standard of care. The court‘s order clearly exceeded the limited purpose of a mandatory injunction because it changed the position of the parties and compelled the acts which constituted all or part of the ultimate relief sought—requiring Aurora to operate outside the boundaries of the law—below the standard of care.
CONCLUSION
¶62 In sum, the circuit court erroneously exercised its discretion in granting Gahl‘s requested relief. The court failed to identify any viable claim upon which the temporary injunctive relief was granted, and as such, Gahl did not show a reasonable likelihood of success on the merits. While the lack of a viable claim is dispositive in and of itself, the court also failed to explain how granting Gahl‘s requested relief was necessary to avoid irreparable harm—given that there was no legal authority to compel Aurora to provide treatment below the standard of care. Finally, the court‘s order neither preserved nor restored the status quo between the parties, but instead altered the status quo and granted much, if not all, of the relief Gahl ultimately seeks in this case.
¶63 Recognizing that he has failed to identify any legal basis for the circuit court‘s action, Gahl urges us to ignore the law based on his assertions that the treatment protocols for COVID-19 are wrong, as we discussed above. These criticisms do not empower us to order a private health care provider to administer a proposed treatment that does not fall within its standard of care when there is no legal authority upon which to do so. Our role is to interpret and apply the law as written. We are bound by the law, and the law in this case does not provide a basis for judicial intervention.
¶64 For the foregoing reasons, we hold that the circuit court had no legal authority to compel Aurora, a private healthcare provider, to provide care that is below its standard of care. We further hold that the court had no legal authority to compel Aurora to credential an outside provider to provide care that is below the standard of care. Accordingly, we reverse the circuit court‘s order granting Gahl‘s petition for a temporary injunction.
By the Court.—Order reversed.
No. 2021AP1787-FT(D)
¶66 The specific legal question presented is: Whether the circuit court, after reviewing the filings, hearing arguments, and considering the evidence presented, erroneously exercised its discretion in entering an order granting the requested temporary injunctive relief.1 Because I conclude the circuit court did not erroneously exercise its discretion, I would affirm the circuit court‘s order. Accordingly, I dissent.
I
¶67 John J. Zingsheim is a sixty-year-old man currently in Aurora Summit‘s Intensive Care Unit (ICU). Zingsheim was admitted to the ICU immediately upon his transfer from Aurora Hartford where he was receiving treatment for COVID-19. Zingsheim arrived at Aurora Summit on September 19, 2021, and was placed on a ventilator on October 3, 2021. Allen Gahl, the adult nephew and power of attorney for Zingsheim, saw his uncle‘s condition continue to decline as the course of treatment Aurora pursued failed to work. In an attempt to reverse the decline, Gahl obtained a prescription for ivermectin for Zingsheim from Dr. Edward Hagen, M.D., a physician who is licensed in Wisconsin but who is not affiliated with Aurora, and requested that Aurora administer ivermectin to Zingsheim. Aurora refused.
¶68 Gahl sought injunctive relief in the Waukesha County Circuit Court, indicating he would “sign a release, pursuant to informed consent principles, thereby releasing the Hospital[,] its agents, assigns, and any third parties acting on its behalf, and any doctors acting on behalf of the Hospital, from any and all liability in administering the Treatment to Mr. Zingsheim.”
¶69 The circuit court held a hearing on October 12, 2021, and heard arguments, reviewed the filings, and ordered supplemental materials be filed updating the court as to Zingsheim‘s condition and current treatment. Later the same day, the court ordered Aurora to administer the ivermectin prescribed by Dr. Hagen to
¶70 On October 13, 2021, the circuit court held a second hearing and addressed Aurora‘s concerns. The circuit court orally modified its previous order, and instead of requiring Aurora to administer the ivermectin, the circuit court clarified it was ordering Aurora to allow a physician identified by Gahl to be credentialed by Aurora and given permission to go to Aurora and administer the ivermectin to Zingsheim.3 Before a written order to that effect could be produced, this court granted Aurora‘s petition to appeal the nonfinal order the circuit court had entered on October 12. This court granted the order without a response from Gahl. It also decided sua sponte—that is, without a request from Aurora asking it to do so—to stay the circuit court order and all circuit court proceedings. Thus, despite the circuit court‘s order allowing Zingsheim to receive ivermectin, the medication could not be given because of this court‘s stay order.
¶71 On October 20, 2021, Gahl filed an emergency petition to bypass the court of appeals. In a 4-3 decision, the Wisconsin Supreme Court denied that petition on October 25, 2021, and the circuit court proceedings remained stayed pursuant to this court‘s order. Justice Rebecca Grassl Bradley dissented, joined by Chief Justice Annette Kingsland Ziegler and Justice Patience Drake Roggensack, and noted:
In this case, the family of John Zingsheim, who is on a ventilator and in a drug-induced coma battling COVID-19, asked the circuit court to order potentially life-saving treatment Mr. Zingsheim‘s doctor prescribed—[i]vermectin—but Aurora Medical Center-Summit declined to administer it. After reviewing evidence, hearing testimony, and considering arguments, the circuit court ordered Aurora to administer the treatment. While Aurora‘s interlocutory appeal was pending, the parties agreed that Aurora would grant temporary privileges to a doctor—chosen by the family—to administer the medication, while the family would release Aurora from any liability arising from it. The circuit court modified its order to reflect the agreement. The court of appeals stayed the circuit court order and proceedings, without knowledge of the substance of the modification, even though Aurora did not ask the court of appeals for such relief.
¶72 This case was placed on this court‘s expedited calendar and briefing was completed on January 12, 2022.4 Additional facts will be developed as necessary.
¶73 A temporary injunction is “not to be issued lightly” and should be issued only where the cause is “substantial.” Werner v. A. L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977). To grant a request for injunctive relief, the circuit court must find that: (1) the person requesting relief is “likely to suffer irreparable harm if a temporary injunction is not issued“; (2) there is “no other adequate remedy at law“; (3) “a temporary injunction is necessary to preserve the status quo“; and (4) the requestor “has a reasonable probability of success on the merits.” Milwaukee Deputy Sheriffs’ Ass‘n v. Milwaukee County, 2016 WI App 56, ¶20, 370 Wis. 2d 644, 883 N.W.2d 154. “Injunctive relief is to be tailored to the necessities of the particular case.” State v. Seigel, 163 Wis. 2d 871, 890, 472 N.W.2d 584 (Ct. App. 1991). “An injunction may be no more broad than is ‘equitably necessary.‘” City of Milwaukee v. Burnette, 2001 WI App 258, ¶10, 248 Wis. 2d 820, 637 N.W.2d 447 (citation omitted).
¶74 “Whether to grant or deny an injunction is vested in the trial court‘s reasoned discretion.” Diamondback Funding, LLC v. Chili‘s of Wis., Inc., 2004 WI App 161, ¶6, 276 Wis. 2d 81, 687 N.W.2d 89. The test on appeal “is not whether the appellate court would grant the injunction but whether there was an [erroneous exercise] of discretion on the part of the trial court.” Wisconsin Ass‘n of Food Dealers v. City of Madison, 97 Wis. 2d 426, 429, 293 N.W.2d 540 (1980) (emphasis added); see also Hoffmann v. Wisconsin Elec. Power Co., 2003 WI 64, ¶10, 262 Wis. 2d 264, 664 N.W.2d 55 (review on appeal is limited to whether the circuit court erroneously exercised its discretion in granting injunctive relief). “A discretionary determination will be sustained where it is demonstrably made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law.” Diamondback Funding, LLC, 276 Wis. 2d 81, ¶6 (citation omitted).
¶75 Aurora‘s primary argument is that a circuit court cannot order it to provide treatment it believes falls below the standard of care.5 Aurora‘s argument is unavailing, however, because Aurora fails to meaningfully connect that argument—or any of the other arguments it raises—to the legal question at issue here: Whether the circuit court erroneously exercised its discretion in granting the injunction. See School Dist. of Slinger v. Wisconsin Interscholastic Athletic Ass‘n, 210 Wis. 2d 365, 371, 563 N.W.2d 585 (Ct. App. 1997) (“The merits of the case are not before this court in the instant appeal; the only question is whether the circuit court erroneously exercised its discretion.“).
¶76 Having reviewed the record, which I describe in detail below, I conclude the circuit court did not erroneously exercise
¶77 During the October 12 hearing, the parties presented arguments regarding the four injunction factors in the context of this case. The circuit court heard numerous details regarding the decline in Zingsheim‘s condition, treatments Aurora had administered, how and why Gahl obtained a prescription for ivermectin, and Aurora‘s objection that administering ivermectin would fall below what it believed to be the proper standard of care. Gahl also presented information pertaining to purportedly successful uses of ivermectin in treating COVID-19 patients and pointed out that he had requested administration of ivermectin only after Aurora had exhausted its standard treatment protocol.
¶78 Throughout the October 12 hearing, the circuit court repeatedly questioned the parties to elicit additional information and greater detail. For example, the circuit court asked questions regarding the Food and Drug Administration‘s (FDA) position regarding ivermectin as a COVID-19 treatment, the extent of Hagen‘s treatment of Zingsheim and whether Hagen had ever met with Zingsheim or reviewed his medical records, and the nature of the treatment Zingsheim was receiving from Aurora (if any) at the time of the hearing.
¶79 Having heard from the parties, the circuit court specifically identified the factors it was required to consider in ruling on Gahl‘s request for injunctive relief, stating those factors provide “the basis and the background legally that the Court has to utilize as a framework and in assessing the circumstances of this case.” The circuit court acknowledged this matter is “of extremely serious concern and potential consequences” because Zingsheim‘s medical condition could be described as “dire.” In referencing the ivermectin prescription, the circuit court acknowledged it “has no level of medical expertise or experience” and that it was “relying on the record that‘s been generated here today to make the evaluation and exercise the Court‘s discretion on the request.” At that point, however, the circuit court noted the record was lacking in some respects—for example, there was no assertion from a medical professional regarding Zingsheim‘s chances for survival with or without the requested treatment, there was nothing in the affidavits from Aurora‘s physicians identifying the current treatment protocol for Zingsheim, and no medical experts had opined as to the validity of the various ivermectin studies Gahl presented.
¶80 In the absence of such information, the circuit court was reluctant to rule on Gahl‘s request, particularly given the “polar opposite[]” positions the parties had taken in regard to ivermectin, and it further acknowledged that without such additional information, “it‘s very difficult... to assess what, in fact, we‘re dealing with other than relying on anecdotal representations today that [are] otherwise unsupported
information about Mr. Zingsheim.” The circuit court also noted that “the consequences of action and nonaction are significant,” confirmed it wanted to make a decision that day because it was concerned about “[d]elaying this and putting this out further[,]” and reminded the parties that “[t]his is not a decision that a Court makes based on emotion.”
¶81 The record reflects that the parties submitted the requested materials, and the circuit court, having reviewed them, ultimately signed the October 12 order granting the requested injunctive relief. The record further reflects that the following information, at least some of which came from the supplemental filings, was before the circuit court at the time it issued its order:
- An affidavit from Dr. Edward Hagen, a Wisconsin-licensed physician, who averred that: (1) administration of the prescribed ivermectin “gave the patient a realistic chance for improvement while presenting a low risk of side effects[;]” and (2) he has “prescribed [i]vermectin in about 300 other cases with generally favorable results and no serious cases of side effects from the drug.”
- The “Declaration of [Dr.] Pierre Kory, M.D.[,]” who is licensed to practice medicine in Wisconsin. According to that Declaration, Dr. Kory is a pulmonary and critical care doctor and is board certified in Internal Medicine, Pulmonary Diseases, and Critical Care, and he was “an attending physician providing critical care medicine, inpatient pulmonary consultation, and outpatient pulmonary consultation services at Mount Sinai Beth Israel Medical Center in New York City” for many years.
- Dr. Kory also served “as the Medical Director of the main medical-surgical Intensive Care Unit called the Trauma and Life Support Center” at the University of Wisconsin.
- Dr. Kory has “worked in numerous ‘hot spots’ around the country” since the onset of COVID-19, including New York City, South Carolina, and Milwaukee, and he is “considered an expert in the pathophysiology and management of COVID-19, having published ten increasingly cited papers on the disease and its clinical management.”
- Dr. Kory joined with others from “critical care medicine” and “formed the Frontline Covid-19 Critical Care Alliance in March of 2020 with the sole intent of developing the most effective treatment protocols for COVID-19.”
-
Dr. Kory is “generally considered the foremost expert on ivermectin in the treatment of COVID-19 in the world[,]”7 and based on his studies of COVID-19, concluded that “ivermectin should be immediately and systematically deployed in the prevention and treatment of COVID-19.” (Emphasis omitted.) - Dr. Kory testified about the efficacy of ivermectin before Congress at a December 8, 2020 Homeland Security Meeting, where he stated that “[i]vermectin is highly safe, widely available, and low cost[,]” that ivermectin is a Nobel Prize winning drug, that to date over twenty clinical studies showed “that ivermectin is effectively a ‘miracle drug’ against COVID-19[,]” and that “[t]here is now a wealth of studies reporting efficacy of ivermectin.”
¶82 After Aurora submitted a letter requesting clarification or modification of the circuit court‘s order, the circuit court held an additional hearing on October 13. During the October 13 hearing, the circuit court acknowledged its receipt of the supplemental materials it received the day before, heard additional arguments about continuing the order,8 and described the information from the supplemental materials it relied on in entering its October 12 order. It then orally modified its order to clarify that it was not requiring one of Aurora‘s physicians to administer the ivermectin, that Gahl was to provide the ivermectin, that it was Gahl‘s responsibility to identify a physician who was both willing to administer the ivermectin and who Aurora was willing to credential and grant privileges, and that it was not issuing directions to Aurora as to its credentialing process other than it was to credential an acceptable physician to administer the ivermectin “without undue delay.”9
¶83 Based on the record, it is clear the circuit court‘s decision was reasoned and based on the record and applicable law. See Diamondback Funding, LLC, 276 Wis. 2d 81, ¶6 (discretionary decisions are to be “‘sustained where it is demonstrably made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law.‘” (citation omitted)). 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. The circuit court further recognized that Zingsheim‘s medical condition, which undoubtedly relates to multiple injunction factors, created an urgent, if not dire, situation. Specifically, Zingsheim was in a precarious medical condition, which unquestionably pertains to maintaining the status quo (life) and irreparable harm (death). Additionally, given the urgency of Zingsheim‘s
¶84 The circuit court did not specifically explain why it concluded Gahl had established a likelihood of success on the merits. What is clear from the record, however, is that the circuit court understood that likelihood of success on the merits was a required factor, that it was honed in on the competing medical opinions presented by Aurora‘s and Gahl‘s supporting physicians as to what treatment would or would not be appropriate for Zingsheim under the circumstances, and that the medical information from the parties’ various physicians was central to its determination. Based on the information in the record, it was reasonable for the circuit court to conclude Gahl had established a likelihood of success on the merits as to the applicable standard of care or his ability to establish a legal right to choose ivermectin as a course of treatment after Aurora‘s treatment protocol failed to improve his COVID-19-related condition.
¶85 Despite Aurora‘s argument to the contrary, the circuit court did not place itself in the shoes of a treating physician or otherwise act as Zingsheim‘s doctor when it entered the order granting temporary injunctive relief. Rather, it was presented with evidence of Zingsheim‘s “dire” medical condition, the treatment Zingsheim had received and was currently receiving, and medical opinions from multiple physicians. The circuit court identified the relevant injunction factors, and in concluding Gahl had met his burden, reasonably determined that injunctive relief was appropriate. It then fashioned a narrow order wherein Zingsheim could receive the requested alternative treatment, which two licensed and presumably reasonable doctors had advised the circuit court would benefit the patient, without involving Aurora physicians at all.11
III
¶87 This appeal requires only that this court determine whether the circuit court erroneously exercised its discretion and does not involve the actual merits of this case. At this juncture, this court cannot and should not be deciding what the proper standard of care12 is, whether Aurora breached its statutory duty to provide Zingsheim with the information required by the informed consent statute,13 or any
other merits issues the parties raise. These are substantive issues decided by juries (or circuit courts if a jury trial is waived). See, e.g., Martin v. Richards, 192 Wis. 2d 156, 181, 531 N.W.2d 70 (1995)
(3) Risks apparent or known to the patient.
(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6) Information in cases where the patient is incapable of consenting.
(7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.
(Emphases added.)
one expert‘s opinion on the standard of care over another‘s“); Bubb v. Brusky, 2009 WI 91, ¶¶3, 73-74, 78, 321 Wis. 2d 1, 768 N.W.2d 903 (reversing the circuit court‘s decision removing the informed consent question from the jury and concluding “that [
¶88 To suggest, however, that a circuit court, presented with the evidence that was submitted here—where a patient-physician dispute regarding the proper standard of care or availability of a reasonable viable treatment arises in real-time—has no legal authority to issue injunctive relief under these circumstances is simply wrong. Patients have rights in Wisconsin, including, as material:
- The right “to make their own health care decisions“;14
- The right to informed consent—where physicians must “disclose what a reasonable person in the patient‘s position would want to know“;15
- The right to request and receive medically viable alternative treatments “and have that choice respected by her or his doctor.”16
Martin, 192 Wis. 2d at 171-72; Schreiber v. Physicians Ins. Co. of Wis., 217 Wis. 2d 94, 105, 579 N.W.2d 730 (Ct. App. 1998), aff‘d, 223 Wis. 2d 417, 588 N.W.2d 26 (1999);
¶89 Although Wisconsin law does not afford a patient the right to demand any treatment the patient desires, it does recognize a patient‘s right to request and
* * *
¶90 The circuit court here considered the pertinent facts and, based on the competing medical information provided, reached a reasonable determination. It determined based on the information before it that Gahl satisfied the necessary
injunction factors, and it fashioned a narrowly-tailored order. Because the circuit court did not erroneously exercise its discretion, I would affirm its order. I dissent.
Notes
The content of the signed Order is extremely problematic. I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for [i]vermectin 66mg to be taken once daily. The prescription does not indicate from where the [i]vermectin is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer [i]vermectin “as further ordered by Mr. Gahl.” Mr. Gahl is not a healthcare provider.
Above all, the majority‘s flawed premises led it to decide issues that we need not—and should not—decide. It decides the standard of care (although it claims it does not), usurping the role of the factfinder. It decides that the treatment requested on behalf of the patient falls below what the majority has declared to be the standard of care, usurping the role of the factfinder. This court, of course, does not decide credibility of witnesses or make factual findings. See Dickman v. Vollmer, 2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202; Kovalic v. DEC Int‘l, 186 Wis. 2d 162, 172, 519 N.W.2d 351 (Ct. App. 1994) (this court does not find facts). Additionally, the majority decides that the requested alternative treatment is not medically viable, contrary to both Hagen‘s affidavit and Kory‘s declaration. Based on the majority‘s determination that the requested treatment is not a medically viable alternative, it decides this patient has no legal right. By exceeding this court‘s role in reviewing the circuit court‘s final order, the majority decides unnecessary issues and creates new law that is in direct conflict with longstanding Wisconsin law.
Informed Consent. Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances. The physician‘s duty to inform the patient under this section does not require disclosure of:
(2) Detailed technical information that in all probability a patient would not understand.
Finally, the majority‘s opinion is at times misleading. For example, it says the patient was improving. But, the circuit court rejected Aurora‘s lawyer‘s suggestion to that effect. The circuit court said it could make no conclusions based on Aurora‘s affidavit about whether the patient was improving. The Aurora physician‘s affidavit did not say the patient was “improving.” The majority also discusses numerous cases where courts rejected patients’ requests for treatment, but declines to address
According to the FDA website,
Unapproved use of an approved drug is often called “off-label” use. This term can mean that the drug is:
- Used for a disease or medical condition that it is not approved to treat, such as when a chemotherapy is approved to treat one type of cancer, but healthcare providers use it to treat a different type of cancer.
- Given in a different way, such as when a drug is approved as a capsule, but it is given instead in an oral solution.
- Given in a different dose, such as when a drug is approved at a dose of one tablet every day, but a patient is told by their healthcare provider to take two tablets every day.
If you and your healthcare provider decide to use an approved drug for an unapproved use to treat your disease or medical condition, remember that FDA has not determined that the drug is safe and effective for the unapproved use.
U.S. FOOD & DRUG ADMIN., UNDERSTANDING UNAPPROVED USE OF APPROVED DRUGS “OFF LABEL” (Feb. 5, 2018), https://www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/understanding-unapproved-use-approved-drugs-label#:~:text=Unapproved%20use%20of%20an%20approved,a%20different%20type%20of%20cancer.
In his petition, the only argument that Gahl made regarding “success on the merits” is that “the evidence in favor of the Treatment is considerable, and the counterarguments against its use and efficacy are weak. Because the risks associated with the use of the Treatment are extremely low compared to the risks of non-administration, Petitioner is likely to prevail at trial.” Success on the merits, for Gahl, is persuading the court to order the proposed treatment.
We have carefully scrutinized the petition to discern Gahl‘s probable arguments supporting his claim that the court has authority to act in this case. The arguments Gahl set forth in his original petition are as follows: (1) failure to provide the treatment violated the “Hippocratic Oath“; (2) withholding the proposed treatment violates the patient‘s right to self-determination under
Aurora argues that this argument is raised for the first time on appeal. However, because this argument was made in some form before the circuit court, and Aurora addressed it at the hearing, we will address it on appeal.
The language required to be included in the HCPOA form states only that “necessary health care” may not be withheld.
Courts in other jurisdictions that have recognized the existence of an implied contract between health care providers and patients have been careful to note that the provider‘s implied contractual obligation is to provide care that meets the applicable standard of care. See, e.g., Texas Health Huguley, Inc. v. Jones, 637 S.W.3d 202, 220 (Tex. App. 2021). A breach of the obligation could subject the provider to liability for malpractice.
Our review of Wisconsin law regarding the Hippocratic Oath indicates that it has generally been limited to discussions involving doctor-patient confidentiality. Even in the context of doctor-patient confidentiality, our supreme court has held that the oath did not create a binding obligation in all circumstances. For example, the oath “does not prohibit a plaintiff‘s treating physicians from communicating ex parte with each other or with defense counsel regarding nonconfidential information.” Steinberg v. Jensen, 194 Wis. 2d 439, 465-66, 534 N.W.2d 361 (1995).
One version, cited below, does not even contain the language that he posits:
I swear by Apollo the Physician, Asclepius, Hygeia, Panaceia, and all the gods and goddesses, making them my witnesses, that I will fulfill this oath and this covenant according to my ability and judgment: To regard him who teaches me the art of medicine as equal to my parents; to share my life with him and, if he is in need, my sustenance; to regard his children as my brothers and to teach them this art, if they wish to learn it, without fee or covenant; to give instruction, written, oral, and practical, to my sons and the sons of my teacher, as well as to any students who have signed a covenant and sworn an oath according to the canons of our profession, but to no others. I will apply therapeutic measures for the benefit of the sick according to my ability and judgment, and will abstain from harm and wrongdoing. I will not give a lethal drug to anyone requesting it, nor will I recommend the use of such. Likewise I will not give a woman an abortive drug. I will live my life and practice my art in purity and in holiness. I will not perform surgery, even on sufferers from stone, but will not interfere with those who engage in such work. Whatever houses I enter, I will do so for the benefit of the sick, refraining from all intentional wrongdoing and misconduct, particularly from sexual involvement with persons of either gender, whether free or slaves. I will not divulge anything of a private nature regarding people‘s personal lives that I see or hear, whether in the course of my professional activities or not, because I recognize the shamefulness of revealing such information. If I carry out this oath and do not break it, may I find satisfaction in life and the practice of my profession and may I deserve honor among men forever. If I violate it and swear falsely, may the opposite be my lot.
Hippocratic Oath, STEDMAN‘S MEDICAL DICTIONARY (28th ed. 2006).
Within his contract argument, Gahl makes a number of unsupported assertions. For example, he asserts that Aurora breached an implied duty when it adopted a protocol prohibiting the use of the proposed treatment but then administering other medications to its patients that he suggests “further endangers each of these patients.” Gahl points to nothing in the record suggesting that Aurora had an implied duty not to adopt the protocol.
Unpublished opinions authored by a member of a three-judge panel and issued on or after July 1, 2009, may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).
We conducted our own research to determine whether we could find any of the orders to which Gahl‘s attorney alluded. We could find none in any publicly accessible source.
In his response brief, Gahl referenced two decisions from courts in Illinois. Those decisions were not presented to the circuit court, especially considering that one of the orders was signed after the court entered its order in this case. We note that neither decision is precedential here. Moreover, we question whether those cases even represent current Illinois law. On December 29, 2021, the Illinois Appellate Court ruled against the position that Gahl advocates. See Abbinanti v. Presence Cent. & Suburban Hosps. Network, 2021 IL App (2d) 210763, ¶¶ 18-23 (affirming denial of request for injunctive relief ordering hospital to administer the proposed treatment to critically ill COVID-19 patients).
We reach our decision based on Wisconsin law, but look to these other courts for their persuasive value.
The only publicly available case that we found in which a trial court agreed with Gahl‘s theory was in Ohio, where the Court of Common Pleas of Ohio ordered the defendant hospital to administer Ivermectin on August 23, 2021. Smith v. West Chester Hosp., LLC, No. CV 2021 08 1206, 2021 WL 4316593, at *1 (Ohio C.P. Aug. 23, 2021). The plaintiff‘s attorney was the same attorney as in this case. Shortly after issuing its decision, the court modified its order on September 3, 2021, to allow the hospital “to cease administration of Ivermectin, at its discretion, if Mr. Smith‘s treating physician(s) at West Chester Hospital determine that Mr. Smith is experiencing any life threatening side effects due to the administration of Ivermectin.” Smith v. West Chester Hosp., LLC, No. CV 2021 08 1206, 2021 WL 4316594, at *1 (Ohio C.P. Sep. 3, 2021). However, three days later, on September 6, 2021, the court denied the injunction, holding that an injunction should not be granted “to force a hospital to honor the prescription of a doctor that has not seen a patient and has no privileges at said hospital thus forcing the hospital to give ivermectin to a patient when the hospital‘s doctors, the FDA, CDC, and the AMA do not believe ivermectin should be a recommended way to treat COVID-19.” Smith v. West Chester Hosp., LLC, No. CV 2021 08 1206, 2021 Ohio Misc. LEXIS 103, at *3, *7-12 (Ohio C.P. Sept. 6, 2021). Despite having lost that case, Gahl‘s attorney did not inform the circuit court in this case about this reversal.
Even if Gahl had identified other potential sources of patient “rights,” such as informed consent, he has failed to show that any other source provides a legal right to compel a provider to administer a treatment that is contrary to that provider‘s medical judgment, i.e., below the standard of care.
The court acknowledged Aurora‘s concerns about logistical issues, but it did not resolve them.
That the parties and the circuit court discussed a release of liability is further evidence that Gahl‘s requested relief would have forced Aurora to act outside the boundaries of the law and that his request was not grounded in any legal authority. In other words, the release of liability would be necessary because the court was ordering Aurora to, against its professional judgment, commit medical negligence. We are hard-pressed to envision other areas of the law in which a court could compel a private business and individuals to affirmatively act outside the boundaries of the law such that it could subject them to legal liability.