May 15, 2023 at 4:28 p.m.
Supreme Court: Hospital didn't have to allow patient choice in treatment
Bradley dissent: Constitution protects people's right 'to make their own health care decisions'
The decision was 6-1, with justice Rebecca Grassl Bradley dissenting.
The issue involved the controversial drug ivermectin for the treatment of Covid-19. The ruling upheld an appeals court decision that overturned a circuit court order requiring Aurora Health Care to allow patient John Zingsheim to take the drug, after the hospital's own protocol had failed to improve Zingsheim's condition.
At the time Zingsheim was comatose, ventilated, and could not be moved to another medical facility, and Aurora refused to allow the drug to be administered, despite the insistence of Allen Gahl, the holder of Zingsheim's power of attorney (HCPOA).
The high court's ruling was based on a purported discretionary error by the circuit court judge, whom the appeals court says failed to properly document the legal theory and reasoning for his order. Thus, according to the Amos Center for Justice, which represented Gahl, the narrow drawing of the ruling means the impact on similar pending cases should be minimal.
Ivermectin is an FDA approved anti-parasitic drug that can be lethal if misused, which most often happens when it is used without a physician's oversight. When used under a physician's care, complications are rare, and multiple studies show it is highly effective in ameliorating the worst symptoms of Covid-19; other studies show it to be ineffective in that application.
In this case, Zingsheim's nephew, Allen Gahl, had been authorized to make medical decisions on behalf of his uncle and asked the hospital to use ivermectin. Gaul had researched the drug after the hospital's treatment, which included a regimen of Remdesivir, had failed.
Gahl obtained a prescription for ivermectin from a licensed doctor. The hospital refused to administer it, saying "the use of ivermectin in the treatment of John Zingsheim's Covid-19 symptoms does not meet the standard of care for treatment."
Gahl went to circuit court, which ordered the hospital to administer the drug. After the hospital expressed concerns, the court modified the order, saying Gahl would have to provide the drug and find a doctor to administer it.
An appeals court then overturned the circuit court, determining that the hospital could not be forced to allow a treatment it considered to be substandard care. The Supreme Court decision upheld the court of appeals, agreeing that the circuit court had not identified "a source of law" for its decision requiring the hospital to allow the ivermectin treatment.
Specifically, the court found that no source of law was identified either to compel a health care provider to administer a treatment that it believes is below the standard of care or to compel a hospital to put a doctor that will do so through its credentialing process.
"The circuit court's written order granting Gahl relief does not cite any statute, case, or other source of law as a foundation allowing for its issuance," the majority decision, written by justice Ann Walsh Bradley, stated. "Although the circuit court later clarified its intent in oral comments, those oral comments likewise did not identify any law on which the order was premised. Absent any citation to law establishing a legal basis for the order, we cannot determine that the circuit court employed the reasoning process our precedent demands."
In exercising its discretion, the majority opined, there were no "magic words" the circuit court had to 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 decision stated. "Here, the record is lacking in this respect."
To be sure, Ann Walsh Bradley wrote, the circuit court heard legal arguments and at one point stated that is "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 majority concluded. "The circuit court did not tie such 'respect' to any legal analysis."
Bradley's dissent: medical freedom
As she is wont to do, justice Rebecca Grassl Bradley delivered a withering dissent, saying the majority had ignored the most important source of law of all, namely, the Wisconsin state constitution.
"The first operative provision of the Wisconsin constitution recognizes '[a]ll people' have certain 'inherent rights' and the state of Wisconsin was founded by the people for the sole purpose of securing these rights," Bradley wrote. "Under the Wisconsin Constitution, the 'just powers' of the government derive 'from the consent of the governed,' a consent explicitly premised on the state using these powers to secure the people's rights (Wis. Const. art. I, ยง 1). The Wisconsin constitution exists not only to protect the people from an overreaching government but to empower the people's government to protect their individual freedom from non-state actors."
In this case, Bradley argued, the circuit court used its equitable power to craft a narrow remedy, ensuring that 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.
"He became so sick that he lay comatose in a privately-owned hospital, Aurora Medical Center-Summit - his life sustained by a feeding tube and ventilator," she wrote. "In a sense, he was a prisoner of circumstance: unable to be safely moved, he had no practical ability to exercise his natural right to seek treatment elsewhere. Rather than allow Aurora to dictate treatment, the court temporarily enjoined Aurora."
Bradley argued that the circuit court was cautious in crafting its temporary injunction not to favor Zingsheim's natural right at Aurora's expense.
"The court merely ordered that Gahl could propose a doctor and that Aurora had to put this doctor through its credentialing process without undue delay," she wrote. "The court clarified the proposed doctor was not entitled to any special treatment. If the proposed doctor satisfied Aurora's standard criteria, Aurora was required to credential him but only for the limited purpose of administering ivermectin to Zingsheim."
The court also required Gahl to sign a hold-harmless agreement to limit Aurora's exposure to liability, Bradley observed: "With this remedy, the court ensured no one would have to violate the dictates of his conscience."
In sum, Bradley concluded, the circuit court properly exercised its discretion in entering an order granting temporary injunctive relief by considering the relevant facts and applying the correct legal standard, ultimately reaching a reasonable conclusion.
Bradley concluded that the circuit court could have more clearly articulated its factual findings and legal conclusions.
"However, when we review discretionary decisions, we do not require a perfectly polished transcript or magic words," she wrote. "Rather we 'look for reasons to sustain the . . . [circuit] court's discretionary decision,' reversing 'if and only if the record does not reflect a reasonable basis for the determination or a statement of the relevant facts or reasons motivating the determination is not carefully delineated in the record.'"
One step in
In her dissent, Bradley observed that Zingsheim was "on death's doorstep."
Aurora administered a cocktail of drugs including steroids, blood thinners, antibiotics, and sedatives, none of which improved his condition, Bradley wrote, as well as the hospital's preferred treatment, the drug Remdesivir, which she emphasized was also controversial but which the FDA had approved for treating Covid-19.
"After two days on remdesivir, Zingsheim's family demanded Aurora stop administering it, worried it may cause severe side effects," she wrote. "Aurora responded that only palliative care was available. As the circuit court seemed to characterize the situation, Aurora adopted a 'wait-and-see' approach - wait and see if Zingsheim died or got better."
That's when Gahl researched ivermectin. Bradley noted that ivermectin is approved by the FDA to treat humans suffering from parasitic infections and that some doctors prescribed it to treat Covid-19, though the FDA has not approved it for that specific purpose, which means, Bradley wrote, that they were prescribing ivermectin for an "off-label" use.
"One amicus brief notes about 20 percent of all prescriptions are for an off-label use," she wrote. "The majority omits this context from its opinion while emphasizing ivermectin is 'not approved by the . . . [FDA] as a treatment for Covid-19.'"
Gahl located a doctor unaffiliated with Aurora, Dr. Edward Hagen, who had experience with ivermectin, who reviewed "detailed information" about Zingsheim's condition, as well as an eight-page medical history. Hagen then prescribed ivermectin for Zingsheim.
Gahl requested that Aurora administer ivermectin as Hagen had prescribed, but Aurora refused "per system policy," Bradley wrote, and Zingsheim's effective captivity left him with no reasonable way to obtain the family's preferred treatment.
"Consequently, Aurora's conduct was depriving Gahl of his 'undisputed right under well-established law to make reasonable and lawful medical decisions' because he could not go elsewhere to receive treatment," she wrote. "As noted in the petition: '[W]hat dramatically changes the normal analysis of patient choice is the fact that the patient is essentially in hospital 'prison' due to his poor medical condition. He cannot go out into the medical marketplace to fulfill his preferences which is otherwise his right under state law[.]'"
Gahl cited Zingsheim's "right to self-determination" under, among other legal sources, Article I, Section 1 of the Wisconsin Constitution, the informed consent statute, and the common law, Bradley emphasized.
"Among other theories, Gahl also argued that withholding ivermectin violated the patient-physician contract, the Hippocratic Oath, and Gahl's statutory right as the holder of the HCPOA (health care power of attorney)," she wrote. "Gahl also argued that administering ivermectin was within the standard of care, noting, 'the evidence in favor of . . . [ivermectin] is considerable, and the counterarguments against its use and efficacy are weak.'"
Bradley said the majority opinion overlooked a number of crucial facts, and misled on others.
"The majority inaccurately suggests Gahl may have forfeited several legal arguments by not advancing them before the circuit court," she wrote. "Specifically, the majority claims Gahl did not argue a contract theory or a HCPOA theory, but these assertions are untrue - even the court of appeals majority acknowledged these arguments were made."
And Gahl was not trying to force Aurora to administer the ivermectin, Bradley clarified.
"The majority suggests Gahl sought an order requiring Aurora to administer [i]vermectin, which is partly true, but ultimately Gahl simply wanted ivermectin administered; he did not care by whom," she wrote. "Gahl explained in the petition for relief that he was willing to sign a hold-harmless agreement. The majority omits this fact among many others that do not fit its narrative."
Contrary to the insinuation of the court of appeals majority, Bradley continued, the circuit court did not require Aurora to credential any particular doctor.
"The court specifically declared it was 'not going to start dictating to the hospital and start to change their policies of how they make their determination of who's appropriate to come into their facility and administer medication,' considering such action 'an overreach,'" she wrote.
In particular, the circuit court emphasized that Aurora need not credential Dr. Hagen specifically but could, if he failed credentialing, direct Gahl to find someone else.
What's more, Bradley wrote, the appeals court decision presupposed that the administration of ivermectin actually fell below the standard of care, and she quoted a dissenting judge, Shelley Grogan, in that decision: "By redefining 'standard of care' to mean what the treating physician believes it to be, the majority effectively requires all courts going forward to simply accept the health care provider's belief as to the standard of care where a patient seeks an injunction based on a disagreement with the provider's course of action in providing care."
Irreparable harm
Then, too, Bradley wrote, the court of appeals' discussion of who might suffer irreparable harm from the court's decision - a key element to be considered in such court proceedings - focused on the wrong party.
"That majority discussed 'several concerns' raised by Aurora about the 'irreparable harm' Aurora could experience from the temporary injunction," she wrote. "Aurora claimed providing treatment below what it perceived to be the standard of care could impact the licensing of its doctors and nurses and expose Aurora to civil liability despite the hold-harmless agreement."
But analyzing the potential harm to Aurora was improper, Bradley asserted.
"As indicated by the plain language of [the statute], the irreparable harm requirement concerns injury to 'the party asking for relief,'" she wrote. "Accordingly, the court of appeals majority should have evaluated whether Aurora's conduct would 'violate a right . . . and injure [Zingsheim]' in a way that Zingsheim's injury would be 'irreparable.'"
Another element in considering an injunction is whether the injunction is necessary to preserve the status quo, Bradley wrote, which she argued is closely related to the irreparable harm requirement.
"In the context of this case, during which Zingsheim's survival hung in the balance, the preservation of the status quo reasonably meant the preservation of the opportunity for Zingsheim to obtain his ultimate requested relief: access to ivermectin," she wrote. "The status quo was life. Had Zingsheim died, obviously access to ivermectin would have been rendered futile."
Quite clearly, Bradley continued, the circuit court viewed the status quo as maintaining Zingsheim's life and well-being, not Aurora's denial of ivermectin, which the court of appeals viewed as the status quo.
"The circuit court also repeatedly voiced its concerns for the 'dire' situation," she wrote. "The court considered and rejected the view later maintained by the court of appeals majority regarding the status quo - no ivermectin - which it was entitled (if not required) to do."
Indeed, Bradley said no member of the supreme court or the court of appeals suggested that Zingsheim had a different and adequate remedy available at law.
"Death is irreversible," she wrote. "There is no remedy at law or otherwise."
As for not identifying a source of law, Bradley argued, at no point did the majority examine Article I, Section 1 of the Wisconsin Constitution, the informed consent statute, or the common law, even though all were referenced in Gahl's petition for relief.
"As a matter of natural law, people have a right 'to make their own health care decisions,'" Bradley wrote. "This right to self-determination is protected by Article I, Section 1 of the Wisconsin Constitution, which this court has held protects an 'independent right to liberty includ[ing] an individual's choice of whether or not to accept medical treatment.' But for his incapacitation, in a free market Zingsheim could have exercised this right by leaving the hospital; his condition precluded that option."
The right to self-determination is also protected by the informed consent statute, Bradley asserted.
"The circuit court received evidence sufficient to reasonably find that ivermectin was a viable medical treatment; Dr. Hagen's affidavit alone was a sufficient basis on which to make this finding," Bradley concluded. "The circuit court therefore had authority to ensure Zingsheim had access to ivermectin. The majority errs in treating this politically controversial case differently than other cases involving similar decisions."
Richard Moore is the author of "Dark State" and may be reached at richardd3d.substack.com.
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