The Wisconsin Supreme Court heard oral arguments January 17 in a case that will decide whether a circuit court judge exceeded judicial authority in ordering a hospital to provide Ivermectin to a COVID-19 patient despite that treatment falling below the standard of medical care.
The Wisconsin Medical Society and the American Medical Association filed an amicus brief in the case, Gahl v. Aurora Health Care, asking the supreme court to affirm the state court of appeals’ reversal of the circuit court order. Failure to do so, the brief warns, would force physicians to provide treatments that the medical consensus finds substandard. “That outcome forces Wisconsin’s physicians to choose between the law and their ethical duties, potentially exposing patients to harm and physicians to liability,” the brief says.
The case involved a patient with COVID-19 admitted to an Aurora hospital and transferred to its ICU. The patient’s nephew, Allen Gahl, held medical power of attorney and requested that his uncle receive Ivermectin – a request the hospital’s physicians declined due to such action being below the standard of care. The nephew filed a petition in Waukesha County Circuit Court asking the court to compel treatment with Ivermectin and to “honor Petitioner’s wishes under the power of attorney” for the patient’s care. Aurora argued that no state law authorizes a court to compel a physician to provide treatment that is reasonably believed to be below the standard of care. Aurora’s physicians also pointed out that “the proposed treatment may have adverse effects on the patient, including heart damage, liver damage, stroke, and kidney damage.” Despite these warnings, the circuit court compelled Aurora to comply with the request.
The court of appeals quickly reversed the circuit court before any Ivermectin was provided, finding that the nephew failed to identify any law or other claim that could allow a patient to compel treatment counter to a physician’s medical professional judgment, and therefore the lower court “erroneously exercised its discretion” in making its order. The nephew appealed to the supreme court, which accepted the case. The patient recovered and is no longer hospitalized.
It is a dangerous game to predict a court’s ultimate ruling based on oral arguments. That said, many court observers listened with interest to Supreme Court Justice Brian Hagedorn during the oral arguments. A conservative jurist who has occasionally joined with the court’s three liberal justices in 4-3 opinions, Justice Hagedorn’s jurisprudence often centers on the plain meaning of statutes and whether that meaning has been followed appropriately.
Very early in the arguments, Justice Hagedorn expressed concern over whether the circuit court action was proper due to its failure to cite a law supporting the power to make such an order. Later, after issues such as complying with a power of attorney or the state’s “right to try” law were raised, Hagedorn again returned to what he may consider the more fundamental issue at hand: does the circuit court’s failure to cite an authorizing statute for the order make any other issues moot?
“We’re reviewing a trial court’s decision,” Hagedorn said. “We don’t normally after the fact, when you’re talking about whether the trial court made a reasoned application of the law, find a totally new law that the trial court didn’t actually consider in the first place...It’s a very odd posture for us to be in, just sort of spit-balling different theories that come up after the fact that weren’t even there before the trial court.
“What are we as a reviewing court supposed to do when the trial court doesn’t actually engage in an analysis on the merits at all – doesn’t actually cite any legal authority?” Justice Hagedorn asked.
The court will issue its opinion sometime this term, which runs through late spring. You can listen to an audio recording of the oral arguments on the Supreme Court’s website.
Contact WisMed’s Mark Grapentine, JD with any questions.
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