MADISON, Wis. (Legal Newsline) - A judge was out of line when he ordered a Wisconsin hospital to provide a patient dying of Covid-19 with the controversial anti-parasite drug Ivermectin, the Wisconsin Supreme Court ruled, upholding an appellate decision reversing the order.
The decision by the state’s highest court drew a lengthy dissent from one of its most conservative justices, who said natural law and the right to self-determination required the court to uphold trial judge’s injunction.
Allen Gahl went to court after his uncle, John Zingsheim, fell critically ill from Covid 19 in 2021 and ended up on a ventilator at Aurora Medical Center-Summit. Doctors administered a cocktail of drugs including Remdesivir but Zingsheim’s condition didn’t improve. “Through personal research,” Gahl came across information about Ivermectin and found a doctor to prescribe it to his uncle. The doctor never saw Zingsheim, however, and didn’t have privileges at Aurora so the hospital refused to dispense the drug.
Gahl sued the hospital and in October 2021 Waukesha County Judge Lloyd Carter heard arguments from both sides. Gahl argued his uncle was dying and deserved a shot at recovery with a drug some doctors prescribed off-label even though the Food and Drug Administration hadn’t approved it for Covid. Aurora argued that would violate the standard of care.
During the hearing, a lawyer for Aurora compared ivermectin to bleach. The judge rejected the analogy, saying: "we're not talking about putting bleach in somebody's veins here." The judge then ordered Aurora to honor Zingsheim’s prescription immediately, without citing any statutory authority.
Aurora’s lawyer objected, saying the institution couldn’t legally comply with the order. The following day, the judge modified his order to allow Zingsheim to find a doctor that Aurora would then credential to prescribe the drug.
Aurora immediately appealed, and the appeals court stayed the judge’s order. It later issued a decision stating 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."
In a May 2 decision, the Wisconsin Supreme Court agreed.
“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 court said, calling Judge Carter’s ruling “an erroneous exercise of discretion.”
Justice Rebecca Grassl Bradley dissented in an opinion double the length of the majority opinion. She opened with a quote from the late Thomas J. Brogan on self-determination and natural law and went on to criticize the court for accusing Judge Carter of ignoring the law.
The trial judge properly addressed the requirements for an injunction, Justice Bradley wrote, including preserving the “status quo,” which she said was keeping Zingsheim alive. The majority incorrectly agreed with Aurora and the appeals court that the “status quo” was the hospital’s opinion on the standard of care, she wrote.
“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,” she wrote.