by Henry Redman, Wisconsin Examiner
January 18, 2023
The Wisconsin Supreme Court heard oral arguments Tuesday in a case over a COVID-19 patient’s legal right to force a hospital to ignore its own protocols and provide a widely discredited and ineffective treatment.
On Sept 19, 2021, Waukesha County resident John Zingsheim was admitted to Aurora Medical Center-Summit after being diagnosed with COVID-19 three days before. Two weeks later, on Oct. 3, he was intubated and put on a ventilator. At the hospital, Zingsheim was treated with a steroid and three other drugs, while he declined the antiviral drug remdesivir, according to the appellate court opinion.
Zingsheim’s nephew, Allen Gahl, holds a power of attorney for health care for his uncle. According to the appellate court ruling, Gahl read about the use of ivermectin for COVID-19 through an internet search. Gahl spoke with a Wisconsin physician who recommended ivermectin. The doctor wrote a prescription for Zingsheim without having met him, based on information from Gahl.
Aurora doctors refused the request for ivermectin, saying it would be “below the standard of care” for COVID-19 patients, the appeals court opinion states.
Gahl filed a petition in Waukesha County Circuit Court on Oct. 7, asking a judge to order the hospital to honor the ivermectin prescription. After a hearing on Oct. 12, Judge Lloyd Carter issued an order directing the hospital to administer the prescription. In a follow-up hearing the next day, the judge modified the order, stating that it would be up to Gahl to supply the ivermectin and to supply a doctor “that meets the approval of the hospital” to administer the prescription.
The hospital appealed the circuit court decision, which in a 2-1 opinion reversed Carter’s order.
On Tuesday, the court was considering whether Carter’s initial order was correct, not whether ivermectin is an appropriate treatment for COVID-19.
Gahl’s attorney, Karen Mueller, argued that state law provides patients and anyone acting as a patient’s power of attorney to request and be given any treatment they desire.
“You have the right to make decisions about your health care,” said Mueller, who finished third in last year’s Republican primary for attorney general after running on an anti-vaccine platform. “No health care may be given to you over your objection, and necessary health care may not be stopped or withheld if you object. Withheld, of course, being the key word here.”
But a number of the justices questioned where the line would be drawn if that was the law in Wisconsin, asking if under this interpretation, a patient would be able to demand and be given treatment such as a leeching.
“Where does this line get drawn?” Justice Rebecca Dallet said. “What if someone comes into the hospital and says, ‘I want bloodletting’ … And what if someone comes in and says ‘they are withholding treatment from me.’ Because that’s how you’re reading this, because they won’t give me the treatment that I wanted. Where does this line get drawn? And how would we ever, as a court, be able to draw these kinds of distinctions that you’re asking us to be able to draw?”
Justice Brian Hagedorn, a conservative who frequently acts as the court’s deciding swing vote, pointed out that the trial judge didn’t cite any laws in his original decision and that should be the deciding factor for the Supreme Court.
“If [the trial court] didn’t cite any actual law, then they erroneously exercised their discretion, and that’s the end of the case,” Hagedorn said.
Mueller argued that Wisconsin statute 155, which governs medical power of attorney, gives people the right to make health care decisions — which she said includes demanding a certain treatment.
Liberal leaning Justice Ann Walsh Bradley pointed out that in that statute, the phrase “health care decision” is specifically defined as “an informed decision in the exercise of the right to accept, maintain, discontinue or refuse health care,” and therefore doesn’t include the ability to request or demand anything.
Jason Franckowiak, the attorney for Aurora, argued that the trial court’s initial decision wasn’t based upon any Wisconsin state laws, that the court’s order took away the hospital’s power to decide which doctors are able to work there and that no other appellate court in the country has interpreted the law as allowing patients to demand treatment with ivermectin.
Franckowiak said that Carter’s second order stated that Gahl had to find a physician who would administer the ivermectin to Zingsheim and was approved by the hospital. This, Franckowiak said, violated the hospital’s legal responsibility to credential all the doctors treating patients at Aurora.
“The trial court attempted to to set up a system whereby the hospital wouldn’t need to take responsibility for any bad outcome that might occur as a result of ivermectin,” Franckowiak said. “They were still required to emergently credential a physician who was going to be chosen for no reason other, no criteria other than that that physician was willing to issue a treatment to a non-patient sight unseen.”
“They were required to credential that individual, which of course, you’re taking away the decision-making power of the hospital on a very important issue,” he continued. “One of the reasons you might choose not to credential a physician is because that physician is willing to prescribe a medication that is not to [his own] patient and is prescribed sight unseen. That’s improper conduct. That could be medical malpractice. A doctor who’s willing to do that is perhaps a doctor that you might not want to credential for the safety of your patients.”
When trial courts in Wisconsin issue an injunction such as the one issued by Carter in this case, one of the required criteria is that it maintains the status quo. Franckowiak said that the status quo in this case was the treatment plan already put in place by the team of doctors working with Zingsheim. Conservative Justice Rebecca Bradley asked if the status quo was actually Zingsheim being alive.
“That’s disrupting the status quo for Aurora,” Bradley said. “But it’s not disrupting the status quo for Mr. Zingsheim, who was trying to live, right? The status quo for him was he was alive, and they’re trying to keep him alive.”
By the time the appeal in the case was heard, Zingsheim had recovered from COVID-19, but Franckowiak said the outcome of the case was important because it would determine if state law puts the court system between patients and their doctors.
“The trial court did abuse its discretion, it did not indicate the factors it was considering, it did not identify any law upon which he was basing his decision and the trial judge was put in a very difficult position, which illustrates the problem and the concern of putting the judiciary in the way between the doctor and the patient,” Franckowiak said. “He’s being asked to parse evidence and make medical decisions that are going to actively affect the treatment, and is going to overrule the treatment decisions by an independent, educated professional.”
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