Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized.
The case: Allen Gahl v. Aurora Health Care Inc.
Majority: Justice Ann Walsh Bradley (13 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, Jill J. Karofsky, Patience D. Roggensack, and Annette K. Ziegler
Dissent: Justice Rebecca Grassl Bradley (41 pages, plus a 25-page appendix)
The petitioner, Allen Gahl, who holds power of attorney for his uncle, John Zingsheim, seeks review of a published decision of the court of appeals reversing the circuit court's issuance of an injunction. That injunction compelled Aurora Health Care, Inc., to administer a certain medical treatment to Zingsheim. The court of appeals determined that Gahl's claim must fail because he did not identify a source of law that (1) would give a patient or a patient's agent the right to force a health care provider to administer a treatment the health care provider concludes is below the standard of care, or (2) could compel Aurora to put an outside provider that would provide such care through its credentialing process.
We conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. Accordingly, we affirm the decision of the court of appeals.
WJI has covered this topic before. First, when the Court of Appeals decision came down, and again in advance of the SCOW arguments.
Gahl holds health care power of attorney for his uncle, Zingsheim. At the time this case was filed, on October 7, 2021, Zingsheim was a patient in Aurora's care after testing positive for COVID-19. Zingsheim eventually recovered and was released.
Through personal research, Gahl became aware of a drug called ivermectin, which had been used as a purported treatment for COVID-19. He received a prescription for ivermectin from Dr. Edward Hagen, a retired OB/GYN, who asserted that he "wrote the prescription based on a detailed discussion of Mr. Zingsheim's condition with Mr. Gahl," but never met with Zingsheim.
Aurora declined to effectuate Dr. Hagen's prescription for several reasons. According to Aurora's Chief Medical Officer, ivermectin is "primarily used as an anti-parasitic in farm animals or administered to humans for treatment of certain parasites and scabies" and is not approved by the Food and Drug Administration as a treatment for COVID-19. The Chief Medical Officer further averred that a high dose of ivermectin, such as that prescribed by Dr. Hagen, "can be dangerous to humans and cause hypotension, ataxia, seizures, coma, and even death," and that accordingly "the use of ivermectin in the treatment of John Zingsheim's COVID-19 symptoms does not meet the standard of care for treatment."
Gahl subsequently filed a complaint in the circuit court, seeking declaratory and injunctive relief. Specifically, he sought an order requiring Aurora to administer ivermectin to Zingsheim as prescribed by Dr. Hagen. Aurora opposed the requested relief.
Based on the supplemental information submitted, the circuit court (Waukesha County Circuit Judge Lloyd Carter) acted quickly, and later in the day on October 12, signed an order to show cause Gahl had drafted and submitted. The order compelled Aurora to "immediately enforce Dr. Hagen's order and prescription to administer ivermectin to their mutual patient, Mr. Zingsheim, and thereafter as further ordered by Mr. Gahl." There was no statutory basis or other legal foundation for the order set forth in its text.
Almost immediately after the order issued, Aurora objected. Aurora referred to the circuit court's order as "extremely problematic." Specifically, it observed the following alleged shortcomings:
I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for ivermectin 66mg to be taken once daily. The prescription does not indicate from where the ivermectin 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 ivermectin "as further ordered by Mr. Gahl." Mr. Gahl is not a healthcare provider. ...
The next day, on October 13, 2021, Aurora filed a petition for leave to appeal a nonfinal order with the court of appeals. Additionally on that date, the circuit court held another hearing. At this hearing, the discussion revolved largely around Zingsheim's medical condition and the advantages and disadvantages of ivermectin. After hearing from both sides, the circuit court maintained, but modified its previous order of the day before such that rather than ordering Aurora to administer the treatment, Gahl could identify a physician who could then be credentialed by Aurora. ...
Accordingly, the circuit court indicated its intent to clarify its previous order, agreeing that Gahl "is to supply or identify a physician that Aurora can then review and pass through its credentialing process. And once credentialed, that physician . . . will have permission to enter upon the premises and administer the ivermection as ordered by Dr. Hagen[.]"
In a published opinion, the court of appeals reversed the circuit court's order. It determined that "[Gahl] 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." ... The court of appeals further concluded that the circuit court "had no legal authority to compel Aurora to credential an outside provider to provide care that is below the standard of care." Gahl petitioned for this court's review.
A circuit court may issue a temporary injunction if four criteria are fulfilled: (1) the movant is likely to suffer irreparable harm if an injunction is not issued, (2) the movant has no other adequate remedy at law, (3) an injunction is necessary to preserve the status quo, and (4) the movant has a reasonable probability of success on the merits. ...
We begin by observing the limited nature of our review and emphasize that this case is not about the efficacy of ivermectin as a treatment for COVID-19. Rather, it is about whether the circuit court erroneously exercised its discretion by issuing the subject temporary injunction.
Gahl raises three arguments in this court in an attempt to demonstrate that the court of appeals erred and that in fact the circuit court had the authority to issue a temporary injunction. First, he contends that the power of attorney statute, Wis. Stat. § 155.30(1), provides authority to issue the subject injunction. Second, Gahl asserts that the circuit court has inherent authority to issue such an injunction. Finally, he advances that the circuit court may issue the injunction in question under a theory of implied contract between Zingsheim and Aurora. Aurora disputes each of these bases.
We need not address in depth any of Gahl's arguments because we do not know on what basis the circuit court issued the injunction. The circuit court cited no law in either its written order or its oral ruling, as Gahl conceded at oral argument before this court. This in itself constitutes an erroneous exercise of discretion.
A circuit court erroneously exercises its discretion in the context of a temporary injunction when it "fails to consider and make a record of the factors relevant to its determination." Further, whether the party seeking an injunction has a reasonable probability of success on the merits in part turns on whether the moving party has stated a claim entitling it to relief.
Although the circuit court acknowledged the four factors that must be fulfilled in order for a temporary injunction to be granted, it did not engage in any analysis of those factors. We base our determination here on its lack of analysis of Gahl's reasonable probability of success on the merits. Indeed, from a review of the circuit court's order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance. In other words, we do not know what viable legal claim the circuit court thought Gahl had presented. Without identifying the legal basis it accepted, the circuit court cannot support the conclusion that Gahl has demonstrated a reasonable probability of success on the merits. ...
In exercising its discretion, there are no "magic words" the circuit court must utter or any precise level of specificity that is required. But the record must make clear that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.
The circuit court heard legal argument and at one point stated that is (sic) "has a significant respect for an individual's right to choose their treatment." However, such a stray reference does not equate to a legal analysis of the probability of success on the merits of Gahl's legal claim. The circuit court did not tie such "respect" to any legal analysis or indicate how it could serve as a basis for the declaratory and injunctive relief Gahl sought.
We therefore conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim.
In this case, the circuit court used its equitable power to craft a narrow remedy, ensuring a non-state actor could not override the decision-making autonomy of a Wisconsin citizen to whom the non-state actor owed a duty of care.
The circuit court properly exercised its discretion by considering the relevant facts and applying the correct legal standard, ultimately reaching a reasonable conclusion. ... Although the court's analysis could have been more meticulous, this court has never required the detailed explanation the majority now demands.
If the majority applied the correct standard of review, it would be forced to uphold the circuit court's decision. As Judge Shelley A. Grogan, who was on the panel at the court of appeals, wrote in dissent, "it is clear the . . . decision was reasoned and based on the record and applicable law."
In this case, the circuit court properly exercised its discretion. The majority seems to take issue with the circuit court's analysis regarding only one of the four prerequisites for injunctive relief: the reasonable probability of success. The majority, however, also states, "[the circuit court] did not engage in any analysis" of any requirement. Similarly, the court of appeals majority opinion, which the majority of this court affirms, seriously misunderstood the elements. A majority of this court leaves these errors uncorrected, and therefore they are likely to feature in future cases. Although the majority seems to affirm the decision on a narrow basis, it does not expressly – or even impliedly – signal the opinion below loses its precedential value. Consequently, the court of appeals will understand itself to be bound by that opinion.
Contradicting its rejection of a magic words standard, the majority repeatedly faults the circuit court for not citing a specific source of law. ...
Ironically, the majority does not cite any authority obligating the circuit court to provide a specific citation, wading into "the native land of the hypocrite."
Although the circuit court did not recite case precedent or statutory law, it explicitly espoused a "significant respect for an individual's right to choose and choose their treatment" clearly grounded in both. In light of the petition for relief and the record as a whole, this statement should be sufficient. After all, magic words are not required. The majority nevertheless claims "such a stray reference" is insufficient. It cites nothing to support this conclusion. ...
The majority errs in treating this politically controversial case differently than other cases involving similar decisions. ... Arguably, the majority must search the record for reasons to support the circuit court's decision. Altogether absent from the majority opinion is any attempt to read the record in a light favorable to the circuit court's discretionary decision. Alternatively, the majority could remand the case to the circuit court to better explain its decision. Outright reversal is a drastic remedy, not normally imposed unless the record is totally devoid of evidence supporting the circuit court's decision.
On a final note, the majority fails to appreciate the circumstances the circuit court faced when it made its decision. Zingsheim had COVID-19, and Aurora placed Zingsheim on a ventilator. Death was a realistic possibility. Time was of the essence. As the circuit court recognized, the situation was "dire." The circuit court, which was not a medical professional, was presented with "polar opposite" information as to whether ivermectin was likely to improve Zingsheim's condition. Under such fast-paced, high-stakes circumstances, the majority commits an especially egregious error by demanding a "polished transcript" from the circuit court.
The circuit court considered the relevant facts and applied the correct legal standard to reach a reasonable decision in light of the life-or-death circumstances presented. Like the majority of the court of appeals, a majority of this court fails to look for reasons to sustain the circuit court's discretionary decision as the law requires. Under our highly deferential standard of review, the circuit court properly exercised its discretion in entering an order granting temporary injunctive relief to a man near death.
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