Two weeks ago, the Wisconsin Supreme Court heard oral arguments (listen here) in Allen Gahl v. Aurora Health Care Inc. (No. 2021AP1787-FT).
The court is reviewing a Wisconsin Court of Appeals, decision that reversed the Waukesha County Circuit Court that granted an injunction compelling Aurora Health Care to administer ivermectin.
Allen Gahl holds health care power of attorney for his uncle, John Zingsheim. In 2021, Zingsheim was a patient in the Aurora hospital system and had tested positive for COVID-19. Gahl conducted internet research which led him to conclude that Ivermectin would be an effective treatment.
Gahl filed a “Complaint for Emergency Declaratory and Injunctive Relief” in circuit court seeking to compel Aurora to administer Ivermectin to Zingsheim. Gahl stated that he had received a prescription for Ivermectin from Dr. Edward Hagen, who wrote the prescription based on a detailed discussion of Zingsheim’s condition with Gahl. But the hospital staff refused to administer Ivermectin based on their conclusion that providing the medication would be below their standard of care.
Gahl’s complaint sought: (1) preliminary and permanent injunctive relief requiring Aurora to administer the proposed treatment to the patient; (2) a declaration that Aurora “will honor Petitioner’s wishes under the power of attorney respecting the medical treatment” of Zingsheim; and (3) an order requiring Aurora “to honor Mr. Gahl’s request for the immediate utilization of” the proposed treatment. None of the information Gahl provided came directly from a medical professional. Gahl filed an affidavit which stated that Dr. Hagen had gained all of the information about Zingsheim from discussions with Gahl and Dr. Hagen never met Zingsheim or conferred with his treating physicians before writing the prescription for Ivermectin.
Aurora opposed Gahl’s petition, stating “[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.” Aurora also noted that the Wisconsin State Licensing Board had previously disciplined Dr. Hagen for prescribing medications to a person who was not his patient and whom he had not examined. For these reasons, Aurora asked the circuit court to deny Gahl’s request for emergency injunctive and declaratory relief.
The circuit court issued an order compelling Aurora to administer the proposed treatment. The circuit court also scheduled a show-cause hearing for the following day, October 13, directing Aurora to demonstrate why the order should not go into effect. Aurora filed a petition for leave to appeal a non-final order with the Court of Appeals.
Aurora contended there is no legal authority for the circuit court’s order compelling a private healthcare provider to administer a treatment that the provider, in its professional judgment, has determined to be below the standard of care. Aurora further contended that the court erred in compelling administration of the treatment when Gahl failed to show that he was entitled to a temporary injunction.
The Court of Appeals agreed, and reversed the circuit court’s order. The Court of Appeals concluded that requests for injunctive relief must be premised on the existence of a viable legal claim upon which the petitioner can show a reasonable likelihood of success. The Court of Appeals concluded that Gahl failed to meet this foundational requirement and failed to identify any source of Wisconsin law that gives a patient or a patient’s agent the right to force a private health care provider to administer a particular treatment that the health care provider concludes is below the standard of care. The Court of Appeals concluded the circuit court erroneously exercised its discretion in granting Gahl injunctive relief.
Gahl petitioned the Wisconsin Supreme Court to review the Court of Appeals’ decision. The issues for the court to decide are:
1. Whether the “plain-meaning” of the Health Care Power of Attorney which was created statutorily by Wis. Stat. § 155.30(1) gave the circuit court the authority to grant declaratory and injunctive relief to John Zingsheim or other patients.
2. Whether a violation of the Hippocratic Oath or Aurora’s contractual duty of “good faith and fair dealing” breach an implied contract between the patient and Aurora Hospital.
3. Whether the circuit court has the inherent authority to provide equitable remedy for the patient.
4. Whether the Circuit Court has the authority under Wis. Stat. § 448.30 to provide declaratory and injunctive relieve to the patient
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