On May 2, 2023, the Wisconsin Supreme Court upheld the reversal of a trial court order compelling a hospital to administer Ivermectin to a patient suffering from COVID-19. In what had the potential to be a knock-out case addressing appropriate standards of care, patient rights and doctor shopping, the Supreme Court instead affirmed the reversal of the trial court’s order because it simply failed to articulate a proper standard of law or rational thought process to justify the injunction.
The controversy in Gahl v. Aurora Health Care, Inc. began back in 2021 when a patient presented to the hospital suffering from COVID-19. The patient’s nephew, who was the patient’s appointed health care power of attorney (“POA”), obtained a prescription for Ivermectin on behalf of his uncle from a retired OB/GYN who was not employed by the hospital. After the hospital refused to administer the medication to the intubated patient, the patient’s POA filed suit, seeking to compel the hospital to administer the medication.
The trial court acted quickly and heard arguments from both the patient representative and the hospital within five days after the suit was filed. At the hearing and in supplemental affidavits submitted later that same day, the hospital presented medical expert testimony that the administration of Ivermectin fell below the appropriate standards of care and argued that the hospital should not be compelled to practice medicine in a substandard manner. The patient’s representative submitted affidavits from other physicians with data showing that Ivermectin is an effective COVID-19 treatment and argued that the hospital should be required to honor his decision made as the health care POA. The trial court issued an order that afternoon, compelling the hospital to comply with the petitioner’s wishes.
The very next day, upon the hospital’s objection that it could not administer a drug ordered by an uncredentialed physician, the court held another hearing and orally modified its order, clarifying that the patient’s representative was allowed to identify a doctor that would administer the drug as ordered and instructing the hospital to credential the physician without undue delay if he or she satisfied the hospital’s standard credentialing criteria. The credentialing decision was to be for the limited purpose of administering this drug to this patient. The hospital appealed the order the same day it was issued on grounds that no legal basis exists for a court to compel a hospital to credential an outside physician to provide treatment the hospital deems substandard. Indeed, the trial court cited no supporting law in its order—an omission that ultimately became the sole issue on appeal.
The Wisconsin Court of Appeals reversed the trial court order, holding that the court abused its discretion when it failed to identify any viable claim upon which temporary injunctive relief could be granted. The Wisconsin Supreme Court agreed, finding that the trial court’s failure to cite any supporting law “in itself constitutes an erroneous exercise of discretion,” such that the Court was not required to address any arguments in support of the injunction.
In issuing its order, the Supreme Court explicitly sidestepped any discussion of whether Ivermectin is an effective treatment for COVID-19. It also successfully avoided the broader critical question: when a patient on life support is immobile and cannot seek alternative treatment elsewhere, can a hospital that objects to such treatment be compelled to credential the patient’s chosen physician to provide that alternative treatment at the hospital’s facility?
While this mundane decision addressing the elements of an injunction may seem anti-climactic in light of the political and scientific issues presented in the underlying dispute, it does provide Wisconsin hospitals with some practical takeaways:
- The question remains open whether hospitals can be compelled to allow objectionable treatment to be provided by an outside physician at their facility. If a patient or patient representative wants the patient to be treated by a physician not credentialed at the hospital, appropriate arrangements should be made to transfer the patient.
- Temporary injunctions, like the one applied for in this case, require quick action. The hospital’s immediate response to the complaint helped preserve the relevant arguments that lead to a favorable outcome in this case. Contact counsel immediately if you are served with such a petition.
If you have any questions, please contact:
- Matthew Schappa at (310 429-3604 or mschappa@hallrender.com;
- David Honig at (317) 977-1447 or dhonig@hallrender.com;
- Sara MacCarthy at (414) 721-0478 or smaccarthy@hallrender.com;
- Heather Mogden and (414) 721-0457 or hmogden@hallrender.com; or
- Your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
