Gahl ex rel. Zingsheim v. Aurora Health Care, Inc.

• Decision Date: 25 May 2022
• Docket Number: Appeal No. 2021AP1787-FT
• Citation: 403 Wis.2d 539,977 N.W.2d 756,2022 WI App 29
• Parties: 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.
• Court: Wisconsin Court of Appeals

403 Wis.2d 539
977 N.W.2d 756
2022 WI App 29

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 No. 2021AP1787-FT

Court of Appeals of Wisconsin.

Submitted on Briefs: January 25, 2022
Opinion Filed: May 25, 2022

On behalf of the respondent-appellant, the cause was submitted on the briefs of Jason J. Franckowiak of Otjen Law Firm, S.C., Waukesha.

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.

Before Neubauer, Grogan and Kornblum, JJ.

KORNBLUM, J.

403 Wis.2d 545

¶1 Aurora Health Care, Inc. appeals from a circuit court order granting an injunction compelling Aurora to administer a treatment related to the COVID-19¹ pandemic.² The request for the injunction came from patient John Zingsheim's health care representative, Allen Gahl. Aurora contends that there is no legal authority for the court's order compelling a private health care provider to administer a treatment that the provider, in its professional judgment, has determined to be below the standard of care. Aurora further contends that the court erred in compelling administration of the treatment when Gahl failed to show that he was entitled to a temporary injunction. We agree. 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. Gahl fails to meet this foundational requirement. He has 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. Because Gahl has failed to identify 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, the court erroneously exercised its discretion in granting Gahl injunctive relief. We reverse.

403 Wis.2d 546

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

977 N.W.2d 760

¶3 Based on his internet research, Gahl sought to compel Aurora to administer a medication called Ivermectin⁵ (the proposed treatment) to the patient. Aurora filed its response on October 11, 2021. Both the

403 Wis.2d 547

petition and response included affidavits and exhibits, which will be discussed further below.

¶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

403 Wis.2d 548

¶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

977 N.W.2d 761

¶6 Gahl stated that he "received a prescription for [the proposed treatment] from Dr. Edward Hagen, M.D." who "wrote the prescription based on a detailed discussion of [the patient's] condition with Mr. Gahl." Gahl explained that "[t]he prescription for [the proposed treatment] was filled and Mr. Gahl is ready to deliver the Treatment to the Hospital." The hospital staff refused, based on their conclusion that providing

403 Wis.2d 549

the medication would be below the standard of care. Gahl then filed the petition seeking: (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 the patient; and (3) an order requiring Aurora "to honor Mr. Gahl's request for the immediate utilization of" the proposed treatment.

¶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

403 Wis.2d 550

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

977 N.W.2d 762

Aurora's Response

¶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

403 Wis.2d 551

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,

403 Wis.2d 552

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

977 N.W.2d 763

administer a treatment that is contrary to the FDA, CDC, and the patient's treatment team recommendations.

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.

403 Wis.2d...