Allen Gahl v. Aurora Health Care, Inc. ( 2023 )

2023 WI 35SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1787-FT
COMPLETE TITLE: Allen Gahl Attorney in fact, on behalf of his
principal, John J. Zingsheim,
Petitioner-Respondent-Petitioner,
v.
Aurora Health Care, Inc. d/b/a Aurora Medical
Center - Summit,
Respondent-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 403 Wis. 2d 539, 977 N.W.2d 756PDC No: 2022 WI App 29 - Published
OPINION FILED: May 2, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 17, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Lloyd Carter
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., ROGGENSACK, DALLET, HAGEDORN, and
KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-respondent-petitioner, there were briefs
filed by Karen L. Mueller and Amos Center for Justice & Liberty,
Chippewa Falls. There was an oral argument by Karen L. Mueller.
For the respondent-appellant, there was a brief filed by
Michael L. Johnson, Jason J. Franckowiak, Randall R. Guse, and
Otjen Law Firm, S.C., Waukesha. There was an oral argument by
Jason J. Franckowiak.
An amicus curiae brief was filed by Ben Seel, Maher
Mahmood, Patricia Epstein Putney, Melita M. Mullen, and
Democracy Forward Foundation, Washington D.C., and Bell, Moore &
Richter, S.C., Madison, for the American Medical Association and
Wisconsin Medical Society.
An amicus curiae brief was filed by Joseph W. Voiland and
Veterans Liberty Law, Cedarburg, for the Front Line COVID-19
Critical Care Alliance.
An amicus curiae brief was filed by Andrew L. Schlafly,
Rory E. O’Sullivan, and Rodli, Beskar, Neuhaus, Murray &
Pletcher, S.C., River Falls, for the Association of American
Physicians and Surgeons.
2
2023 WI 35NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1787-FT
(L.C. No. 2021CV1469)
STATE OF WISCONSIN : IN SUPREME COURT
Allen Gahl Attorney in fact, on behalf of his
principal, John J. Zingsheim,
Petitioner-Respondent-Petitioner,
FILED
v.
MAY 2, 2023
Aurora Health Care, Inc. d/b/a Aurora Medical
Center - Summit, Sheila T. Reiff
Clerk of Supreme Court
Respondent-Appellant.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., ROGGENSACK, DALLET, HAGEDORN, and
KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, Allen Gahl,
who holds power of attorney for his uncle, John Zingsheim, seeks
review of a published decision of the court of appeals reversing
the circuit court's issuance of an injunction. That injunction
compelled Aurora Health Care, Inc., to administer a certain
No. 2021AP1787-FT
medical treatment to Zingsheim.1 The court of appeals determined
that Gahl's claim must fail because he did not identify a source
of law that (1) would give a patient or a patient's agent the
right to force a health care provider to administer a treatment
the health care provider concludes is below the standard of
care, or (2) could compel Aurora to put an outside provider that
would provide such care through its credentialing process.
¶2 Gahl contends that the court of appeals erred in
reversing the circuit court's order. Specifically, he asserts
that the circuit court has the authority to issue an injunction
in the present circumstances, and that the injunction the
circuit court issued was a proper exercise of its discretion.
¶3 Aurora disagrees. It argues that neither Gahl nor the
circuit court identified a source of law that gives the circuit
court the authority 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, such that Gahl would have a
reasonable probability of success on the merits of his claim.
¶4 We conclude that the circuit court erroneously
exercised its discretion by issuing an injunction without
referencing any basis demonstrating that Gahl had a reasonable
probability of success on the merits of some type of legal
1Gahl ex rel. Zingsheim v. Aurora Health Care, Inc., 2022
WI App 29, 403 Wis. 2d 539, 977 N.W.2d 756 (reversing order of
the circuit court for Waukesha County, Lloyd V. Carter, Judge).
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claim. Accordingly, we affirm the decision of the court of
appeals.
I
¶5 Gahl holds health care power of attorney for his
uncle, Zingsheim. At the time this case was filed, on October
7, 2021, Zingsheim was a patient in Aurora's care after testing
positive for COVID-19.2
¶6 Through personal research, Gahl became aware of a drug
called Ivermectin, which had been used as a purported treatment
for COVID-19. He received a prescription for Ivermectin from
Dr. Edward Hagen, a retired OB/GYN, who asserted that he "wrote
the prescription based on a detailed discussion of Mr.
Zingsheim's condition with Mr. Gahl," but never met with
Zingsheim.
¶7 Aurora declined to effectuate Dr. Hagen's prescription
for several reasons. According to Aurora's Chief Medical
Officer, Ivermectin is "primarily used as an anti-parasitic in
farm animals or administered to humans for treatment of certain
parasites and scabies" and is not approved by the Food and Drug
Administration as a treatment for COVID-19. The Chief Medical
Officer further averred that a high dose of Ivermectin, such as
2According to the briefing, Zingsheim has recovered from
his COVID-19 infection and was discharged by Aurora. No party
makes any argument regarding mootness, and we will not develop
any such argument for the parties. See Serv. Emps. Int'l Union,
Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35(explaining that "[w]e do not step out of our neutral role to
develop or construct arguments for parties; it is up to them to
make their case").
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No. 2021AP1787-FT
that prescribed by Dr. Hagen, "can be dangerous to humans and
cause hypotension, ataxia, seizures, coma, and even death," and
that accordingly "the use of ivermectin in the treatment of John
Zingsheim's COVID-19 symptoms does not meet the standard of care
for treatment."
¶8 Gahl subsequently filed a complaint in the circuit
court, seeking declaratory and injunctive relief. Specifically,
he sought an order requiring Aurora to administer Ivermectin to
Zingsheim as prescribed by Dr. Hagen. Aurora opposed the
requested relief.
¶9 The circuit court held an initial hearing on Gahl's
petition on October 12, 2021. It heard arguments from both
parties, but did not reach a decision. Instead, it sought
additional information, stating:
I feel that I do need more information[.] . . . This
is not a decision that a Court makes based on emotion.
That's not appropriate. So I need evidence,
and . . . want more evidence from the treating doctors
as to what is Mr. Zingsheim's current medical
situation, what is his prognosis, . . . what is
proposed to move forward. Is there something proposed
to move forward, or is this a wait-and-see situation
with no other alternatives?
And I'd like some more information . . . to create
that connection between this Dr. Hagen prescription
and Mr. Zingsheim, because what I'm seeing here is
just – there's a prescription written by somebody who
really has very limited information about Mr.
Zingsheim. . . . Other than Mr. Gahl, averring that he
has communicated what the hospital has told him,
again, there's no details of that. . . . It's Mr.
Gahl's interpretation of what the hospital told him.
And I don't know where that information comes from, so
I don't know the viability of that information.
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No. 2021AP1787-FT
But, you know, the ask here is for this Court to give
a directive to some treating licensed medical doctors
that they are telling me is contravening their
responsibility to their patient. I mean, the
divergent positions here couldn't be more extreme.
And the consequences of action and nonaction are
significant as well.
Accordingly, the circuit court gave the parties the opportunity
to supplement the record.
¶10 Gahl and Aurora each submitted supplemental materials.
Those filed by Gahl consisted of affidavits from Gahl himself,
Dr. Hagen, and Dr. Pierre Kory.3 Dr. Kory's affidavit was
accompanied by a document indicating that it was Dr. Kory's
testimony before the Homeland Security Committee regarding early
treatment approaches to COVID-19.
¶11 Aurora filed a supplemental affidavit from its Chief
Medical Officer. This supplemental affidavit updated the
circuit court on Zingsheim's medical condition and the plan for
his care and treatment.
¶12 Based on the supplemental information submitted, the
circuit court acted quickly, and later in the day on October 12,
signed an order to show cause Gahl had drafted and submitted.
The order compelled Aurora to "immediately enforce Dr. Hagen's[]
order and prescription to administer Ivermectin to their mutual
patient, Mr. Zingsheim, and thereafter as further ordered by Mr.
Gahl." There was no statutory basis or other legal foundation
for the order set forth in its text.
3 Dr. Kory's affidavit was neither dated nor notarized.
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No. 2021AP1787-FT
¶13 Almost immediately after the order issued, Aurora
objected. Aurora referred to the circuit court's order as
"extremely problematic." Specifically, it observed the
following alleged shortcomings:
I am not aware of any orders written by Dr. Hagen, but
am aware of a prescription written by Dr. Hagen for
Ivermectin 66mg to be taken once daily. The
prescription does not indicate from where the
Ivermectin is to be obtained or how the tablets are to
be administered to a patient who is intubated and
sedated. Finally, the Order provides that Aurora is
to administer Ivermectin "as further ordered by Mr.
Gahl." Mr. Gahl is not a healthcare provider.
For the reasons above, it is my position as counsel
for Aurora that my client is unable to comply with the
terms of the Order as drafted.
¶14 The next day, on October 13, 2021, Aurora filed a
petition for leave to appeal a nonfinal order with the court of
appeals.4 Additionally on that date, the circuit court held
another hearing. At this hearing, the discussion revolved
largely around Zingsheim's medical condition and the advantages
and disadvantages of Ivermectin. After hearing from both sides,
the circuit court maintained, but modified its previous order of
the day before such that rather than ordering Aurora to
administer the treatment, Gahl could identify a physician who
could then be credentialed by Aurora:
As it stands right now, this Court entered an order
that is subject to a petition for leave to appeal to
4 See Wis. Stat. § 808.03(2) (2019-20).
All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
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No. 2021AP1787-FT
the Court of Appeals, who have not weighed in on it.
My intention is to maintain that order, but I am not
going to engage in directing the hospital or
individuals at the hospital . . . to administer this
medication to Mr. Zingsheim. I think it's incumbent
on the petitioner to supply a medical professional
that's approved by the hospital for purposes of
assisting this patient. But I don't think it's
appropriate for this Court to engage in further orders
to the hospital as to how this drug is administered.
They have, they being the hospital, have their rules
of whom they admit to practice medicine there and how
they do it, and I don't think – The Court is taking a
significant step in this case by the order that's been
entered. I think it's the petitioner's responsibility
for not only supplying the prescription but supplying
an individual that meets the approval of the hospital
for administration. If Dr. Hagen doesn't pass muster,
then the petitioner has to find somebody else. But I
don't think this Court – This Court does not feel
comfortable in making any further directives or orders
to the hospital as to how that's to occur. I think
that's a responsibility of the petitioner here and
it's – That's how the Court views it.
Accordingly, the circuit court indicated its intent to clarify
its previous order, agreeing that Gahl "is to supply or identify
a physician that Aurora can then review and pass through its
credentialing process. And once credentialed, that
physician . . . will have permission to enter upon the premises
and administer the Ivermection as ordered by Dr. Hagen[.]"
¶15 The day after this hearing, the court of appeals
granted Aurora's petition for leave to appeal a nonfinal order.
It additionally stayed the circuit court's order and all circuit
court proceedings pending appeal. Gahl sought to bypass the
court of appeals, which this court denied.5
5 Gahl v. Aurora Health Care, Inc., No. 2021AP1787-FT,
unpublished order (Wis. S. Ct. Oct. 25, 2021).
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No. 2021AP1787-FT
¶16 In a published opinion, the court of appeals reversed
the circuit court's order. Gahl ex rel. Zingsheim v. Aurora
Health Care, Inc., 2022 WI App 29, 403 Wis. 2d 539, 977
N.W.2d 756. It determined that "[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." Id., ¶1.
Accordingly, "[b]ecause Gahl has failed to identify any law,
claim, or recognized cause of action under Wisconsin law by
which a patient may compel a health care professional to
administer a course of treatment contrary to that medical
professional's judgment, the court erroneously exercised its
discretion in granting Gahl injunctive relief." Id. The court
of appeals further concluded that the circuit court "had no
legal authority to compel Aurora to credential an outside
provider to provide care that is below the standard of care."
Id., ¶64. Gahl petitioned for this court's review.
II
¶17 We are called upon to review the court of appeals'
determination that the circuit court erroneously exercised its
discretion in the issuance of a temporary injunction. A circuit
court may issue a temporary injunction if four criteria are
fulfilled: (1) the movant is likely to suffer irreparable harm
if an injunction is not issued, (2) the movant has no other
adequate remedy at law, (3) an injunction is necessary to
preserve the status quo, and (4) the movant has a reasonable
8
No. 2021AP1787-FT
probability of success on the merits. Serv. Emps. Int'l Union,
Loc. 1 v. Vos, 2020 WI 67, ¶93, 393 Wis. 2d 38, 946 N.W.2d 35.
¶18 The issuance of a temporary injunction is reviewed for
an erroneous exercise of discretion. Id. We will sustain a
discretionary decision as long as the circuit court examines the
relevant facts, applies a proper standard of law, and, using a
demonstrated rational process, reaches a conclusion that a
reasonable judge could reach. Indus. Roofing Servs., Inc. v.
Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726 N.W.2d 898.
III
¶19 We begin by observing the limited nature of our review
and emphasize that this case is not about the efficacy of
Ivermectin as a treatment for COVID-19. Rather, it is about
whether the circuit court erroneously exercised its discretion
by issuing the subject temporary injunction.
¶20 Gahl raises three arguments in this court in an
attempt to demonstrate that the court of appeals erred and that
in fact the circuit court had the authority to issue a temporary
injunction. First, he contends that the power of attorney
statute, Wis. Stat. § 155.30(1), provides authority to issue the
subject injunction. Second, Gahl asserts that the circuit court
has inherent authority to issue such an injunction. Finally, he
advances that the circuit court may issue the injunction in
question under a theory of implied contract between Zingsheim
and Aurora. Aurora disputes each of these bases.
¶21 We need not address in depth any of Gahl's arguments
because we do not know on what basis the circuit court issued
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No. 2021AP1787-FT
the injunction.6 The circuit court cited no law in either its
written order or its oral ruling, as Gahl conceded at oral
argument before this court.7 This in itself constitutes an
erroneous exercise of discretion.
¶22 "Discretion is not synonymous with decision-making."
McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971).
Instead, "[d]iscretion contemplates a process of reasoning with
6 We additionally observe that Gahl did not clearly raise
these three arguments before the circuit court. Because we do
not reach the merits of these arguments, we need not determine
whether they are forfeited. See State v. Wilson, 2017 WI 63,
¶51 n.7, 376 Wis. 2d 92, 896 N.W.2d 682 (explaining that
"[g]enerally, issues not raised or considered by the circuit
court will not be considered for the first time on appeal"). At
oral argument before this court, Gahl's counsel asserted the
belief that the circuit court based its order on its inherent
authority, but there is nothing in the record to support such an
assertion, and no inherent authority argument was clearly
articulated before the circuit court.
7 At oral argument before this court, Gahl's counsel engaged
in the following colloquy with the court:
THE COURT: One of the requirements in order to issue
a temporary injunction needs to be a reasonable
likelihood of success on the merits. The merits has
to be some legal authority for a court to intervene
and issue an order mandating some action. The trial
court, in my reading, did not cite any actual law to
support its order. . . . The court of appeals rested
its decision largely on that grounds. Even the
dissent didn't point to any actual law that was
cited . . . or at least relied upon to show why there
is a reasonable likelihood of success on the merits.
So just on the reasonable likelihood of success on the
merits, what law was cited by the trial court to give
it authority for it to issue this order?
COUNSEL: The trial court did not identify a specific
law.
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No. 2021AP1787-FT
a rational and explainable basis." State ex rel. Payton v.
Kolb, 135 Wis. 2d 202, 205-06, 400 N.W.2d 285 (Ct. App. 1986).
It is "more than a choice between alternatives without giving
the rationale or reason behind the choice." Reidinger v.
Optometry Examining Bd., 81 Wis. 2d 292, 297, 260 N.W.2d 270(1977). "This process must depend on facts that are of record
or that are reasonably derived by inference from the record and
a conclusion based on a logical rationale founded upon proper
legal standards." McCleary, 49 Wis. 2d at 277.
¶23 A circuit court erroneously exercises its discretion
in the context of a temporary injunction when it "fails to
consider and make a record of the factors relevant to its
determination." Sch. Dist. of Slinger v. Wis. Interscholastic
Athletic Ass'n, 210 Wis. 2d 365, 370, 563 N.W.2d 585 (Ct. App.
1997). Further, whether the party seeking an injunction has a
reasonable probability of success on the merits in part turns on
whether the moving party has stated a claim entitling it to
relief. Id. at 374; see Wis. Stat. § 813.02(1)(a).
¶24 Although the circuit court acknowledged the four
factors that must be fulfilled in order for a temporary
injunction to be granted, it did not engage in any analysis of
those factors. We base our determination here on its lack of
analysis of Gahl's reasonable probability of success on the
merits. Indeed, from a review of the circuit court's order, we
do not know upon what legal basis it premised its authority to
issue the injunction in the first instance. In other words, we
do not know what viable legal claim the circuit court thought
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Gahl had presented. Without identifying the legal basis it
accepted, the circuit court cannot support the conclusion that
Gahl has demonstrated a reasonable probability of success on the
merits.
¶25 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. 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.
¶26 In exercising its discretion, there are no "magic
words" the circuit court must 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. See Indus. Roofing Servs., 299 Wis. 2d 81, ¶41. Here,
the record is lacking in this respect.
¶27 The circuit court heard legal argument 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
circuit court did not tie such "respect" to any legal analysis
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No. 2021AP1787-FT
or indicate how it could serve as a basis for the declaratory
and injunctive relief Gahl sought.
¶28 We therefore conclude that the circuit court
erroneously exercised its discretion by issuing an injunction
without referencing any basis demonstrating that Gahl had a
reasonable probability of success on the merits of some type of
legal claim. Accordingly, we affirm the decision of the court
of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2021AP1787-FT.rgb
¶29 REBECCA GRASSL BRADLEY, J. (dissenting).
The right of liberty is a natural right and it resides
in the person, because he is a person. It is his
self-determination with regard to fulfilling his
natural final goal without interference. . . . It
follows then that for the fulfillment of his destiny,
man must be free and it is the duty of the State to
secure and protect that freedom to enable the person
to achieve his destiny.
Thomas J. Brogan, The Natural Law and the Right to Liberty, in 4
University of Notre Dame Natural Law Institute Proceedings 23,
29 (1951).
¶30 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. See Wis. Const. art.
I, § 1. See generally Porter v. State, 2018 WI 79, ¶52, 382
Wis. 2d 697, 913 N.W.2d 842 (Rebecca Grassl Bradley & Kelly,
JJ., dissenting) (explaining "[t]oo much dignity cannot well be
given" to this provision (quoting State v. Redmon, 134 Wis. 89,
101, 114 N.W.2d 137 (1907))). 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,
§ 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. See generally Jacobs v. Major, 139
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No. 2021AP1787-FT.rgb
Wis. 2d 492, 535, 407 N.W.2d 832 (1987) (Abrahamson, J.,
concurring/dissenting).
¶31 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.1 See Immanuel
Kant, Groundwork for the Metaphysics of Morals 34 (Jonathan
Bennett ed., amend. 2008) (1785) (calling decision-making
autonomy "the basis for the dignity of human nature"). John
Zingsheim contracted COVID-19——a serious virus that has
threatened the world.2 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. 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. See, e.g., Martin ex rel. Scoptur v.
Richards, 192 Wis. 2d 156, 172, 531 N.W.2d 70 (1995) (noting
"every human being has a right to make his . . . own medical
decisions"); 1 T. Rutherforth, Institutes of Natural Law 146
(1754) ("By liberty we mean the power, which a man has to act as
1The Honorable Lloyd V. Carter, Waukesha County Circuit
Court, presided.
2As of mid-April 2023, the Wisconsin Department of Health
Services has confirmed 16,523 people in this state have died
while sick or probably sick with COVID-19. COVID-19: Wisconsin
Deaths, Wis. Dep't Health Servs. (last updated Apr. 14, 2023),
https://dhs.wisconsin.gov/covid-19/deaths.htm#number%20deaths.
The World Health Organization (WHO) estimates nearly 7 million
people have died of COVID-19. WHO Coronavirus (COVID-19)
Dashboard, WHO (last updated Apr. 12, 2023),
https://covid19.who.int/.
2
No. 2021AP1787-FT.rgb
he thinks fit, where no law restrains him; it may therefore be
called a man[']s right over his own actions."). Rather than
allow Aurora to dictate Zingsheim's treatment, the court
temporarily enjoined Aurora.
¶32 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. 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. With this remedy, the
court ensured no one would have to violate the dictates of his
conscience. See generally City of Milwaukee v. Burnette, 2001
WI App 258, ¶10, 248 Wis. 2d 820, 637 N.W.2d 447 ("An injunction
may be no more broad than is 'equitably necessary.'" (quoting
State v. Seigel, 163 Wis. 2d 871, 890, 472 N.W.2d 584 (Ct. App.
1991))).
¶33 On review, this court is presented with a single
issue: Whether the circuit court properly exercised its
discretion in entering an order granting temporary injunctive
relief. See Gahl ex rel. Zingsheim v. Aurora Health Care, Inc.,
2022 WI App 29, ¶66, 403 Wis. 2d 539, 977 N.W.2d 756 (Grogan,
J., dissenting). It did.
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¶34 The resolution of this issue is governed by the
"highly deferential" standard of review. See Prince Corp. v.
Vandenberg, 2016 WI 49, ¶16, 369 Wis. 2d 387, 882 N.W.2d 371(quoting Klawitter v. Klawitter, 2001 WI App 16, ¶8, 240
Wis. 2d 685, 623 N.W.2d 169). The circuit court properly
exercised its discretion by considering the relevant facts and
applying the correct legal standard, ultimately reaching a
reasonable conclusion. Gahl, 403 Wis. 2d 539, ¶90. Although
the court's analysis could have been more meticulous, this court
has never required the detailed explanation the majority now
demands. Additionally, "[r]egardless of the extent of
the . . . [circuit] court's reasoning, [a reviewing court] will
uphold a discretionary decision if there are facts in the record
which would support the . . . court's decision had it fully
exercised its discretion." State v. Hurley, 2015 WI 35, ¶29,
361 Wis. 2d 529, 861 N.W.2d 174 (quoting State v. Hunt, 2003
WI 81, ¶52, 263 Wis. 2d 1, 666 N.W.2d 771) (third modification
in the original).
¶35 As three justices in the majority lamented in a case
last term:
Could the circuit court have more clearly articulated
its factual findings and legal conclusions? Sure.
However, when we review discretionary decisions, we do
not require a perfectly polished transcript or magic
words. 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."
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State v. X.S., 2022 WI 49, ¶91, 402 Wis. 2d 481, 976 N.W.2d 425(Hagedorn, J., dissenting) (quoting J.A.L. v. State, 162
Wis. 2d 940, 961, 471 N.W.2d 493 (1991)).
¶36 If the majority applied the correct standard of
review, it would be forced to uphold the circuit court's
decision. As Judge Shelley A. Grogan, who was on the panel at
the court of appeals, wrote in dissent, "it is clear
the . . . decision was reasoned and based on the record and
applicable law." Gahl, 403 Wis. 2d 539, ¶83 (citing Diamondback
Funding, LLC v. Chili's of Wis., Inc., 2004 WI App 161, ¶6, 276
Wis. 2d 81, 687 N.W.2d 89). Because the majority raises the
review standard and now deems the expression of the substance of
law insufficient to sustain a discretionary decision, I dissent.
I. BACKGROUND
¶37 The majority opinion provides a scant statement of the
facts, which misleads through omission. For that reason, I
provide a thorough overview of the case. See generally Becker
v. Dane County, 2022 WI 63, ¶89, 403 Wis. 2d 424, 977 N.W.2d 390(Rebecca Grassl Bradley, J., dissenting) ("It is . . . customary
for any judicial opinion to relay the facts of the case[.]"),
recons. mot. filed.
¶38 This tragedy started when Zingsheim contracted COVID-
19 in September 2021. His condition deteriorated rapidly.
Zingsheim began receiving treatment at an Aurora hospital where
his condition worsened. He was placed in the intensive care
unit. He was then transferred to Aurora Summit and was on "full
intubation ventilation," which the petition for relief describes
5
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as "ventilation treatment that requires full sedation and
restraints and which involves an extreme risk of decline and
death." While such ventilation can be life-sustaining, it can
also damage the lungs. In fact, counsel for Zingsheim's adult
nephew, Allen Gahl, who held the health care power of attorney
(HCPOA), informed the circuit court the "pressure" that
ventilation places on the lungs is "unnatural[.]" The high
pressure setting on which Zingsheim was placed could cause semi-
permanent damage by "blow[ing] holes in . . . lungs" and
"scar[ring] the tissues[.]" While at Aurora Summit, Zingsheim
developed "perforated lungs," which, according to Gahl's
counsel, caused bleeding. According to Aurora, Zingsheim had
"[a]cute respiratory failure with hypoxia" among other sobering
health concerns at that point. In summary, Zingsheim, a sixty-
year-old man, was on death's doorstep.
¶39 Aurora administered to Zingsheim a cocktail of drugs
including steroids, blood thinners, antibiotics, and sedatives,
none of which improved his condition. Remdesivir was the only
drug Aurora provided Zingsheim that was specifically for
treating COVID-19, as opposed to his symptoms. Remdesivir was
approved by the Food & Drug Administration (FDA) for treating
COVID-19, but its use was controversial.3 After two days on
Gahl argued before the circuit court that WHO "recommends
3
against the use of [r]emdesivir because it has severe
effect[s]. . . . It has severe effect[s] on people's kidneys."
Expanding on this point, an amicus curiae notes that WHO had
issued a conditional recommendation against the use of
remdesivir. WHO Recommends Against the Use of Remdesivir in
COVID-19 Patients, WHO (Nov. 20, 2020),
https://www.who.int/news-room/feature-stories/detail/who-
recommends-against-the-use-of-remdesivir-in-covid-19-patients#:-
6
No. 2021AP1787-FT.rgb
remdesivir, Zingsheim's family demanded Aurora stop
administering it, worried it may cause severe side effects.
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.
¶40 Gahl became "fear[ful]" that Zingsheim would "not
survive." He averred, "[i]t is . . . now common knowledge
that . . . [COVID-19] patients on full ventilation and under
heavy sedation and restraints have a poor prognosis"——a point
the medical community later acknowledged to be true.
¶41 Gahl's fear caused him to begin researching COVID-19
treatments and specifically a drug called ivermectin. A summary
of ivermectin clinical trials, attached as an exhibit to the
petition for relief, explains that ivermectin "inhibits the
replication of many viruses, including . . . [COVID-19]," much
like remdesivir. A report in the record also notes ivermectin
"protects against organ damage in animal models," having "potent
anti-inflammatory and immune-modulating properties[.]"
According to Gahl's counsel, before Zingsheim became comatose,
:text=WHO%20has%20issued%20a%20conditional. The recommendation
was stated in quite strong terms: WHO recommended "against the
use of remdesivir in hospitalized patients, regardless of
disease severity, as there [wa]s . . . no evidence that
remdesivir improve[d] survival and other outcomes in these
patients." Id. In April 2022, well after the circuit court's
decision, WHO began to "suggest[] the use of remdesivir in mild
or moderate COVID-19 patients who are at high risk of
hospitalization." Id.7
No. 2021AP1787-FT.rgb
he "told his two children and his nephew, . . . Gahl, that he
wanted to take [ivermectin] so that he could live."
¶42 Like remdesivir, ivermectin is controversial. See
generally Gahl v. Aurora Health Care, Inc., No. 2021AP1787-FT,
unpublished order, at 2–3 (Wis. Oct. 25, 2022, as amended Oct.
28, 2022) (Roggensack, J., dissenting) ("I have concerns that
Gahl is being treated differently because underlying the current
motion is his effort to obtain treatment with [i]vermectin
for . . . Zingsheim[.]").4 Exactly why is unclear and beyond the
scope of this writing. Ivermectin is approved by the FDA to
treat humans suffering from parasitic infections. Some doctors
have also prescribed it to treat COVID-19, although the FDA has
not approved it for that specific purpose. In medical parlance,
these doctors are prescribing ivermectin for an "off-label" use.
The FDA explains "off-label" as follows:
Unapproved use of an approved drug is often called
"off-label" use. This term can mean that the drug is:
• Used for a disease or medical condition that it
is not approved to treat, such as when a
chemotherapy is approved to treat one type of
cancer, but healthcare providers use it to
treat a different type of cancer.
• Given in a different way, such as when a drug
is approved as a capsule, but it is given
instead in an oral solution.
• Given in a different dose, such as when a drug
is approved at a dose of one tablet every day,
but a patient is told by their healthcare
provider to take two tablets every day.
4 Four unpublished orders of this court are cited in this
writing. For transparency, a copy of each is provided in the
appendix.
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No. 2021AP1787-FT.rgb
If you and your healthcare provider decide to use an
approved drug for an unapproved use to treat your
disease or medical condition, remember that FDA has
not determined that the drug is safe and effective for
the unapproved use.
FDA, Understanding Unapproved Use Of Approved Drugs "Off Label"
(Feb. 5, 2018), https://www.fda.gov/patients/learn-about-
expanded-access-and-other-treatment-options/understanding-
unapproved-use-approved-drugs-label#:~:text=Unapproved%20use%
20of%20an%20approved,a%20different%20type%20of%20cancer. Off-
label use might sound scary, but it is actually quite common.
As Gahl explains in his opening brief, "[t]housands of 'off-
label' prescription drugs are prescribed every day for use that
the FDA has not 'approved' of in the United States." One amicus
brief notes about 20 percent of all prescriptions are for an
off-label use. The majority omits this context from its opinion
while emphasizing ivermectin is "not approved by the . . . [FDA]
as a treatment for COVID-19." Majority op., ¶7. Apparently for
dramatic rhetorical effect, the majority even notes that
ivermectin, which, to reiterate, is approved for humans, is also
used to treat animals.5 Id.¶43 Gahl's research led him to conclude ivermectin could
be an effective treatment for COVID-19. Various studies Gahl
5 Even more absurdly, the court of appeals majority equated
Gahl's concession that treating COVID-19 with ivermectin is an
"off-label" use with an admission that ivermectin is below the
standard of care. Gahl ex rel. Zingsheim v. Aurora Health Care,
Inc., 2022 WI App 29, ¶33, 403 Wis. 2d 539, 977 N.W.2d 756("[T]hroughout his brief, Gahl effectively acknowledges that the
proposed treatment is not within the accepted standard of care
for COVID-19. He admits that using the proposed treatment for
COVID-19 is not approved by the FDA, as it is an 'off-label use
of the drug.'").
9
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read strongly indicated ivermectin could help his uncle. For
example, one study presented to the circuit court found COVID-19
patients in severe condition had a substantially lower chance of
dying when treated with ivermectin.
¶44 In an effort to save his uncle, Gahl sought medical
advice from a doctor unaffiliated with Aurora, Dr. Edward Hagen,
M.D., who had experience with ivermectin. According to
Dr. Hagen, he spoke with Gahl who conveyed to him "detailed
information about his [u]ncle's condition." Dr. Hagen also
averred he reviewed Zingsheim's eight-page medical history,
which was in the record before the circuit court. Dr. Hagen
then prescribed Zingsheim ivermectin.
¶45 Gahl requested that Aurora administer ivermectin as
Dr. Hagen had prescribed, but Aurora refused. Curiously,
Dr. James Holmberg, M.D., Aurora's Chief Medical Officer,
averred, "[i]vermectin was requested by family" but not
administered "per system policy." Gahl alleges corporate
executives——not doctors——were making broad policies without
knowledge about individual patients.
¶46 Gahl averred he could not "give up" on his uncle even
if Aurora had. As Gahl explained, "[a]t this point, there [wa]s
nothing . . . [Aurora could] do, or [was] will[ing to] do, for
my uncle that [wa]s likely to improve his condition." Gahl sued
Aurora on Zingsheim's behalf.
¶47 Gahl posited a number of legal theories in the
petition for relief. Most pertinently, Gahl emphasized, "the
hospital . . . has sole custody of the patient due to his poor
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medical condition[.]" 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. As noted in the
petition: "[W]hat dramatically changes the normal analysis of
patient choice is that 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[.]"
¶48 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.6 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. 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."
6 Gahl cited the wrong informed consent statute, Wis. Stat.
§ 51.61(1)(fm) (2019–20). His point still stands. Compare
§ 51.61(1)(fm) (explaining a "patient," which is defined as a
person receiving certain mental health or substance abuse
treatment, has "the right to be informed of his . . . treatment
and care and to participate in the planning of
his . . . treatment and care"), with Wis. Stat. § 448.30 ("Any
physician who treats a patient shall inform the patient about
the availability of reasonable alternate medical modes of
treatment and about the benefits and risks of these
treatments.").
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¶49 The majority inaccurately suggests Gahl may have
forfeited several legal arguments by not advancing them before
the circuit court. 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. Compare id., ¶21 n.6,
with Gahl, 403 Wis. 2d 539, ¶¶36–37 (majority op.) (noting Gahl
did not forfeit his argument that Aurora had violated "an
implied contractual duty based on the Hippocratic Oath" or his
argument that Aurora violated the "statute concerning HCPOAs"),
and ¶35 n.22 ("We have carefully scrutinized the petition [for
relief] to discern Gahl's probable arguments supporting his
claim that the court has authority to act in this case. The
arguments Gahl set forth in his original petition are as
follows: (1) failure to provide the treatment violated the
'Hippocratic Oath'; . . . (3) withholding treatment violates the
HCPOA held by Gahl[.]"). The court of appeals majority also
seemed to conclude that Gahl did not forfeit his argument that
the circuit court had "legal and equitable authority"——which
that majority labeled as "inherent power"——to impose the relief
it did. Gahl, 403 Wis. 2d 539, ¶¶36–37, 47–48.
¶50 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. See Majority op., ¶8. Gahl noted in the
petition for relief that if the circuit court was not willing to
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order Aurora to administer the drug, "other" or "different"
relief would be acceptable.
¶51 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. The
court of appeals majority speculated an agreement might not
"shield Aurora and its health care professionals from liability"
in "future litigation." Gahl, 403 Wis. 2d 539, ¶58. Strangely,
the court of appeals majority also complained that an agreement
in this case would not resolve how other disputes, involving
different patients, might be handled. Id. ("Although the
plaintiff had offered to sign a release, 'the potential harm to
defendants is broader than this one case, because a court
directive in this matter could open the door for a flood of
similar suits from other patients with COVID-19, not to mention
other conditions, suing to obtain care that is contrary to
hospital policies.'" (quoting Frey v. Trinity Health-Mich.,
No. 359446, unpublished slip op., 2021 WL 5871744 at *5 (Mich.
Ct. App. Dec. 10, 2021) (per curiam))).
¶52 The circuit court initially rejected the petition for
relief out-of-hand because it was filed without the exhibits
mentioned in the petition. The court explained, "I think it
highly inappropriate for this [c]ourt to set aside its
obligations under the law and act in a vacuum without proper
basis or knowledge." After the missing materials were filed,
the court held a hearing on what its characterized as an
"emergency medical injunctive relief petition." The court
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emphasized the urgency presented by Gahl's assertions. It
considered the situation "dire" and "felt it incumbent on the
[c]ourt . . . to get this in as soon as possible to address [the
issue.]" Nonetheless, the court recognized "there ha[d] to be a
legal basis" for its decision, stating that it would "not [be]
appropriate" to base its decision "on emotion" instead of
evidence. The court also recognized it was a "layperson" in
relation to medicine and accordingly was "relying on the
record . . . generated . . . to make the evaluation and exercise
the [c]ourt's discretion on the request." At the hearing, the
circuit court heard lengthy arguments involving many exhibits.
The transcript of the hearing spans 70 pages.
¶53 On the one hand, Gahl's counsel contended ivermectin
was a viable treatment that could improve Zingsheim's condition.
Although the circuit court was receptive to Gahl's arguments, it
noted skepticism at times. For example, Gahl's counsel
referenced various cases across the nation in which courts had
ordered health care providers to administer ivermectin. Some of
these decisions were provided as exhibits. The court questioned
whether these decisions were factually on point. Specifically,
the court told Gahl's counsel:
The specific cases that you referenced by way of
example, and you submitted some documents regarding
those, my review, at least of the ones that were
identified specifically, you referenced the 80-year-
old woman, the Rochester, New York, situation. My
understanding from what I reviewed was that there had
already been administration of [i]vermectin, and those
cases were for either reinstitute [sic] it or
continuing it after a medical doctor who had a
relationship with the patient had made a decision to
prescribe it and then the hospital, for whatever
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reason, decided to either not continue it or to
terminate it. But those cases involved the situation
where a licensed medical doctor with a patient –– a
patient-doctor relationship with the individual had
already made a prescription decision, and it seems
facially different from what we have here.
The court ultimately viewed these cases as "anecdotal[.]"
¶54 On the other hand, Aurora argued that administering
ivermectin would fall below the standard of care. Repeatedly
during the hearing, Aurora analogized the administration of
ivermectin to the administration of bleach; however, the court
rejected the analogy: "we're not talking about putting bleach
in somebody's veins here." The court also pushed back on
Aurora's argument that Gahl was trying to change the "status
quo":
I have to interject a question here . . . . [W]e
don't have –– And that's what's missing in the two
doctors' affidavits. What is the ongoing medical
protocol and treatment that's being pursued. I mean,
if, in fact, . . . they're at the end of the line of
their available treatments for . . . Zingsheim and
they're saying, well, we put him on a ventilator and
we're just going to, you know, see if he can fight
this off without any further intervention, then the
status quo is then, well, we'll just cross our fingers
and hope for the best. And I don't mean to diminish
their medical opinions, but I don't have anything in
the record that says, well, what are we doing to treat
this gentleman other than put him on a ventilator and
hope for the best.
¶55 Toward the close of the hearing, the circuit court
recited the correct legal standard; the majority does not
dispute this. Specifically, the circuit court stated:
The parties have touched on the elements that are
before the [c]ourt on what amounts to a legal decision
when considering a temporary injunction/restraining
order. And it requires the moving party here, the
petitioner, demonstrate that the movant is likely to
15
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suffer irreparable harm if the temporary injunctive
relief is not issued; also, secondly, that the movant
has no other adequate remedy at law; thirdly, a
temporary injunction is necessary to preserve at
status quo; and, finally, the movant has a reasonable
probability of success on the merits. That issue with
those elements is put before the [c]ourt as a matter
of exercising its discretion. . . . So that's the
basis and the background legally that the [c]ourt has
to utilize as a framework and in assessing the
circumstances of this case.
This court has applied the same standard in numerous cases. See
e.g., Waste Mgmt., Inc. v. Wis. Solid Waste Recycling Auth., 84
Wis. 2d 462, 465, 267 N.W.2d 659 (1978) (quoting Werner v. A. L.
Grootemaat & Sons, Inc., 80 Wis. 2d 513, 519–20, 259 N.W.2d 310(1977)).
¶56 After articulating the correct legal standard, the
circuit court explained various factual considerations. It
mentioned Zingsheim's serious condition and the competing
evidence regarding whether ivermectin would be effective. It
was also concerned with preserving Zingsheim's life, noting,
"the petitioner has asserted that if this [c]ourt doesn't act,
act now, act today, . . . Zingsheim is going to die."
Critically, it also expressed "a significant respect for an
individual's right to choose and choose their treatment." Even
still, the court understood this right is not absolute——very few
rights are.
¶57 The circuit court then found it lacked sufficient
information to determine whether the temporary injunction
requirements had been satisfied. It wanted more information
about how Dr. Hagen had made his decision to prescribe
ivermectin. More generally, it recognized that both Zingsheim's
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condition and the viability of ivermectin as a treatment for
COVID-19 were key considerations. As the court explained,
without additional information on these matters, "it's very
difficult . . . to assess what, in fact, we're dealing with
other than relying on anecdotal representations today that [are]
otherwise unsupported by competent medical expertise." The
court ordered supplemental material be filed later that day.
¶58 While the circuit court was indicating it needed more
information, Gahl's counsel tried to pass the burden of proof
onto Aurora, arguing "respondents need to prove
that . . . [i]vermectin is dangerous and does not work. And
they can't do that." The court rejected such burden shifting,
making clear it viewed this case as a neutral arbiter should.
While Gahl had submitted some evidence, the court noted Aurora
had submitted:
two affidavits from treating physicians and doctors
licensed in the State of Wisconsin that assert to this
[c]ourt that . . . [ivermectin] is dangerous. That's
the problem. . . . I've read the other materials that
you submitted in support of the petition . . . . And
that's great, but now I have two other doctors
involved . . . say[ing] . . . Judge this is dangerous
and we believe . . . that the use of [i]vermectin is
more dangerous than efficacious.
The court continued, "we're in a court of law here today and
there has to be a legal basis for this [c]ourt to make a
determination."
¶59 The circuit court received dueling affidavits. Gahl
filed an affidavit by Dr. Hagen, who averred he had discussed
Zingsheim's condition with Gahl and reviewed Zinghseim's medical
history. He opined that "based on the patient's
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history, . . . the administration of [i]vermectin at the dosage
indicated . . . [would give] the patient a realistic chance for
improvement while presenting a low risk of side effects." He
also attested, "I have prescribed [i]vermectin in about 300
other cases with generally favorable results and no serious
cases of side effects from the drug."7 Aurora filed an affidavit
from Dr. Holmberg——his second in the case——which described
Zingsheim's treatment plan.
¶60 The majority's misuse of affidavits reveals its
misunderstanding regarding the standard of review. The majority
opinion largely ignores Dr. Hagen's affidavit and instead relies
heavily on Dr. Holmberg's first even though the circuit court
obviously gave Dr. Hagen's more weight——which, as the trier of
fact, it had the discretion to do. See Majority op., ¶7. The
majority also takes a not-so-subtle shot at Dr. Hagen by
referring to him as a retired OB/GYN. Id., ¶6. Similarly, the
court of appeals majority mentioned that Dr. Hagen was
sanctioned about a decade ago by the Wisconsin Medical Examining
Board for prescribing medication to an individual who was not
his patient. Gahl, 403 Wis. 2d 539, ¶8. The circuit court was
aware of these facts. The court could have used this
information to discount the information provided by Dr. Hagen,
but it did not do so. Under the proper standard of review, this
Gahl also filed an unnotarized affidavit of another
7
doctor, which cannot be considered. Wis. Hosp. Ass'n v. Nat.
Res. Bd., 156 Wis. 2d 688, 723 n.13, 457 N.W.2d 879 (Ct. App.
1990); see also Wis. Stat. § 887.01 (2019-20).
18
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court is not the trier of fact and must defer to the circuit
court's credibility determinations.
¶61 After reviewing the supplemental materials, the
circuit court ordered Aurora to administer ivermectin to
Zingsheim as prescribed. Instead of complying with the circuit
court's order, Aurora instead wrote a letter to the court in
which it claimed it was "unable to comply with the terms of the
[o]rder as drafted" and asked the court for clarification.
Aurora also filed a petition for leave to appeal the nonfinal
order. Aurora did not seek relief pending appeal in the court
of appeals.
¶62 The next day, the circuit court held a second hearing
to consider Aurora's concerns. At this hearing, Aurora's
counsel told the circuit court that Zingsheim tested negative
for COVID-19 and asked whether that changed anything from the
court's perspective. Gahl's counsel represented that ivermectin
was "not solely for the issue of COVID. It's for COVID and the
damages that come about as a result of COVID." The court
accepted the representation of Gahl's counsel. It then orally
modified its prior order.
¶63 The modified order required Aurora to allow a
physician identified by Gahl, who met Aurora's standard
credentialing criteria, to have access to Zingsheim to
administer ivermectin.8 The modified order did not require
8As one amicus curiae points out, the concern about
Dr. Hagen having prescribed a medicine without an in-person
examination is unwarranted given that a doctor willing to
administer the drug would have to come to Zingsheim in person.
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Aurora's medical staff to administer, or even to provide,
ivermectin.
¶64 Contrary to the insinuation of the court of appeals
majority, the circuit court did not require Aurora to credential
any particular doctor. See id., ¶64. As the circuit court
explained:
I am not going to engage in directing the hospital or
individuals at the hospital . . . to administer this
medication to . . . Zingsheim. I think it's incumbent
on the petitioner to supply a medical professional
that's approved by the hospital for purposes of
assisting this patient. But I don't think it's
appropriate for this [c]ourt to engage in further
orders to the hospital as to how this drug is
administered.
They have, they being the hospital, have their rules
of whom they admit to practice medicine there and how
they do it, and I don't think –– The [c]ourt is taking
a significant step in this case by the order that's
been entered. I think it's the petitioner's
responsibility for not only supplying the prescription
but supplying an individual that meets the approval of
the hospital for administration.
The court stated it was "not going to step on . . . [Aurora's]
toes" and it was giving "due deference" to Aurora's procedures.
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."
¶65 In particular, the circuit court emphasized that
Aurora need not credential Dr. Hagen, noting:
If Dr. Hagen doesn't pass muster, then the petitioner
has to find somebody else. But I don't think this
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[c]ourt –– This [c]ourt does not feel comfortable in
making any further directives or orders to the
hospital as to how that's to occur. I think that's a
responsibility of the petitioner here and it's ––
That's how the [c]ourt views.
While Aurora was required to not "engage in undue delay" in the
credentialing process, it was not required to give the proposed
doctor any special treatment.
¶66 Additionally, the circuit court's modified order
required Gahl to sign a hold-harmless agreement, at Aurora's
request and in light of Gahl stating in the petition for relief
he would be willing to sign one. Despite these facts, the court
of appeals majority actually relied on the existence of the
agreement as support for its erroneous holding: "That the
parties and the circuit court discussed a release of liability
is further evidence that Gahl's requested relief would have
forced Aurora to act outside the boundaries of the law and that
his request was not grounded in any legal authority." Id., ¶58
n.34.
¶67 After the circuit court orally modified its order,
Gahl and Aurora began to negotiate. According to the court of
appeals majority, Aurora was "on the cusp of providing temporary
credentials to an outside provider, subject to Gahl signing
releases." Id., ¶26 n.19. The day after the oral modification,
while negotiations were ongoing, the court of appeals granted
Aurora's petition for leave to appeal a nonfinal order——before
even receiving a response from Gahl. Worse still, the court of
appeals, on its own motion and without any explanation, stayed
the circuit court's oral ruling, even though it apparently did
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not know the exact contents of that ruling. See Gahl v. Aurora
Health Care, Inc., No. 2021AP1787, unpublished order, at 3 (Wis.
Oct. 21, 2021) (Rebecca Grassl Bradley, J., dissenting). The
court of appeals acted so hastily that the oral ruling had not
been reduced to a signed written order. Gahl filed an emergency
petition to bypass the court of appeals. In a 4-3 decision,
this court denied that petition, leaving the stay entered by the
court of appeals undisturbed.
¶68 Following the bypass denial, the court of appeals took
seven months to decide this case despite its emergency nature.
While the appeal was initiated on October 12, 2021, the court of
appeals did not issue its opinion until May 25, 2022——225 days
later. Gahl, 403 Wis. 2d 539, ¶72 n.4 (Grogan, J., dissenting).
If the court of appeals decides to take a case with life or
death consequences, it has a moral, if not legal, duty to decide
it in a timely manner. Gahl, No. 2021AP1787, at 4 (Oct. 21,
2021) ("While appellate courts have all the luxury of time to
ponder the law, . . . Zingsheim, fighting for his life, does
not. Circuit courts are best equipped to make these sorts of
frontline decisions, in which time is of the essence.").
¶69 The court of appeals majority reversed the modified
order of the circuit court over the well-reasoned dissent of
Judge Grogan, which this court's majority completely ignores.9
The court of appeals majority held the circuit court erroneously
The court of appeals understood itself to be reviewing the
9
circuit court's order as orally modified. Gahl, 403
Wis. 2d 539, ¶25 n.18. This court likewise reviews the modified
order.
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exercised its discretion because, in its view, Gahl, not the
circuit court, "failed to identify any law, claim, or recognized
cause of action under Wisconsin law by which a patient may
compel a health care professional to administer a course of
treatment contrary to that medical professional's judgment."
Gahl, 403 Wis. 2d 539, ¶1 (majority op.). It "further [held]
the [circuit] court had no legal authority to compel Aurora to
credential an outside provider to provide care that is below the
standard of care." Id., ¶64.
¶70 This holding presupposes that the administration of
ivermectin actually falls below the standard of care. As Judge
Grogan explained:
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.
Id., ¶85 n.11 (Grogan, J., dissenting). Judge Grogan's dissent
documented the existence of "legal authority to issue injunctive
relief under these circumstances" and concluded the circuit
court properly exercised its discretion. Id., ¶¶88, 90. Gahl
petitioned this court for review, which this court granted.
II. STANDARD OF REVIEW
¶71 Whether to grant a temporary injunction is within the
circuit court's discretion. Milwaukee Deputy Sheriffs' Ass'n v.
Milwaukee County, 2016 WI App 56, ¶20, 370 Wis. 2d 644, 883
N.W.2d 154 (citing State v. C. Spielvogel & Sons Excavating,
23
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Inc., 193 Wis. 2d 464, 479, 535 N.W.2d 28 (Ct. App. 1995)). As
already explained, the standard of review is highly deferential:
 An appellate court "may not substitute its discretion for
that of the circuit court." State v. Rhodes, 2011 WI 73,
¶26, 336 Wis. 2d 64, 799 N.W.2d 850 (citing State v.
McCall, 202 Wis. 2d 29, 42, 549 N.W.2d 418 (1996)).
 An "appellate court[] should 'look for reasons to sustain
a . . . [circuit] court's discretionary decision.'"
State v. Gutierrez, 2020 WI 52, ¶27, 391 Wis. 2d 799, 943
N.W.2d 870 (quoting State v. Wiskerchen, 2019 WI 1, ¶18,
385 Wis. 2d 120, 921 N.W.2d 730).
An appellate court must uphold a circuit court's discretionary
decision if the circuit court applied the correct legal standard
to the relevant facts and reached a reasonable conclusion. See
Seigel, 163 Wis. 2d at 889 (citing Hartung v. Hartung, 102
Wis. 2d 58, 66, 306 N.W.2d 16 (1981)).
¶72 In fact, "[r]egardless of the extent of
the . . . [circuit] court's reasoning, [a reviewing court] will
uphold a discretionary decision if there are facts in the record
which would support the trial court's decision had it fully
exercised its discretion." Hurley, 361 Wis. 2d 529, ¶29
(quoting Hunt, 263 Wis. 2d 1, ¶52) (third modification in the
original). If the appellate court is unsure whether the record
can be so read, the proper remedy is to remand to the circuit
court so that the circuit court can "articulate reasoning[.]"
See X.S., 402 Wis. 2d 481, ¶58 n.1 (Ziegler, C.J., concurring)
(citing Paschong v. Hollenbeck, 16 Wis. 2d 284, 286, 114
N.W.2d 438 (1962)).
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¶73 A circuit court may issue a temporary injunction if
the requirements of Wis. Stat. § 813.02(1)(a) (2019–20) are
satisfied. Section 813.02(1)(a) states:
When it appears from a party's pleading that the party
is entitled to judgment and any part thereof consists
in restraining some act, the commission or continuance
of which during the litigation would injure the party,
or when during the litigation it shall appear that a
party is doing or threatens or is about to do, or is
procuring or suffering some act to be done in
violation of the rights of another party and tending
to render the judgment ineffectual, a temporary
injunction may be granted to restrain such act.
This court has generally required four elements:
 The party requesting relief is likely to suffer
irreparable harm if a temporary injunction is not issued;
 A temporary injunction is necessary to maintain the
status quo, thereby preventing the irreparable harm;
 The moving party has no other adequate remedy; and
 The party has a reasonable probability of success on the
merits.
Waste Mgmt., Inc., 84 Wis. 2d at 465 (quoting Werner, 80
Wis. 2d at 519).
III. ANALYSIS
¶74 In this case, the circuit court properly exercised its
discretion. The majority seems to take issue with the circuit
court's analysis regarding only one of the four prerequisites
for injunctive relief: the reasonable probability of success.
The majority, however, also states, "[the circuit court] did not
engage in any analysis" of any requirement. Majority op., ¶24.
Similarly, the court of appeals majority opinion, which the
majority of this court affirms, seriously misunderstood the
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elements. A majority of this court leaves these errors
uncorrected, and therefore they are likely to feature in future
cases. Although the majority seems to affirm the decision on a
narrow basis, it does not expressly——or even impliedly——signal
the opinion below loses its precedential value. Consequently,
the court of appeals will understand itself to be bound by that
opinion. See State v. Schmidt, 2016 WI App 45, ¶48 n.11, 370
Wis. 2d 139, 884 N.W.2d 510 (citing Blum v. 1st Auto & Cas.
Ins., 2010 WI 78, ¶44, 326 Wis. 2d 729, 786 N.W.2d 78). See
generally Wis. Mfrs. & Com. v. Evers, 2023 WI 5, ¶2, 405
Wis. 2d 478, 984 N.W.2d 402 (per curiam) (noting that while this
court has not addressed the issue directly, when this court
affirms a published opinion of the court of appeals, on
different grounds but without suggesting the rationale of the
court of appeals was incorrect, the court of appeals opinion may
remain binding precedent). Accordingly, a brief overview of the
circuit court's analysis regarding the other requirements is in
order first.
A. The Other Requirements
¶75 Judge Grogan's dissent accurately describes the
circuit court's analysis of the requirements: "The circuit
court . . . recognized that Zingsheim's medical condition, which
undoubtedly relates to multiple injunction factors, created an
urgent, if not dire, situation." Gahl, 403 Wis. 2d 539, ¶83.
Zingsheim's "precarious medical condition" unquestionably
pertained to "irreparable harm (death)" and the "status quo
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(life)[.]" Id. "Additionally, given . . . the finality of
death, there was no other adequate remedy at law[.]" Id.¶76 The court of appeals' discussion of irreparable harm
in the majority opinion focused on the wrong party. That
majority discussed "several concerns" raised by Aurora about the
"irreparable harm" Aurora could experience from the temporary
injunction. Id., ¶¶57–59 (majority op.). 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. Id. Analyzing the potential harm to Aurora was
improper. Wisconsin Stat. § 813.02(1)(a) provides, in relevant,
part: "When it appears from a party's pleading that the party
is entitled to judgment and any part thereof consists in
restraining some act, the commission or continuance of which
during the litigation would injure the party . . . ." (Emphasis
added.) As indicated by the plain language of § 813.02(1)(a),
the irreparable harm requirement concerns injury to "the party
asking for relief." See 43A C.J.S. Injunctions § 68 (updated
Mar. 2023). 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." Pure Milk Prods. Co-op. v. Nat'l
Farmers Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979)
(citations omitted).
¶77 The court of appeals majority mischaracterized the
modified order. The modified order did not compel Aurora to
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administer the drug, so Aurora's licensing concerns are
unfounded. Similarly, the standard of review does not permit
the court of appeals to speculate the hold-harmless agreement
might be found invalid. The circuit court at least implicitly
found the agreement sufficient to protect Aurora, and the court
of appeals majority lacked competence to question that finding.
¶78 The court of appeals majority also suggested the
circuit court did not understand the status quo, a claim belied
by the full record. Gahl, 403 Wis. 2d 539, ¶¶60–61. That
majority asserted:
Here, . . . the circuit court's order changed the
status quo by ordering Aurora to begin providing the
proposed treatment to the patient. . . .
The circuit court did not address this factor
directly, but it is of paramount importance given the
concerns Aurora provided to the court and the
affirmative relief ordered. The status quo before the
litigation was that Aurora was able to exercise its
medical judgment as to patients in the hospital within
the bounds of its standard of care.
Id. The court of appeals again misdirected its analysis,
erroneously focusing on the status quo from Aurora's perspective
rather than the party seeking injunctive relief.
¶79 Under this court's precedent, the status quo
requirement is closely related to the irreparable harm
requirement. As this court explained more than a century ago:
Just where the truth lies cannot be told till a trial
of the case on the merits, hence the necessity of a
power to preserve the status quo pending the
litigation, if that be necessary to make the final
decree effective to do justice between the
parties. . . . [I]t is . . . within the discretionary
power of the court, by a temporary injunction, to
preserve the status quo between the parties pending
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the final decree, if that be necessary in order to
make such decree effective or to save the person
claiming relief from irreparable injury by the conduct
of his adversary pending the litigation.
Valley Iron Works Mfg. Co. v. Goodrick, 103 Wis. 436, 444, 78
N.W. 1066 (1899) (emphasis added); see also De Pauw v. Oxley,
122 Wis. 656, 659, 100 N.W. 1028 (1904) ("[I]t is well-nigh an
imperative duty of the court to preserve the status quo by
temporary injunction, if its disturbance pendente lite will
render futile in considerable degree the judgment sought[.]").
More recently, this court has explained, "[i]njunctions are not
to be issued without a showing of . . . irreparable harm, but at
the temporary injunction stage the requirement of irreparable
injury is met by a showing that, without it to preserve the
status quo [during litigation] . . . , the permanent injunction
sought would be rendered futile." Waste Mgmt., Inc., 84
Wis. 2d at 465 (quoting Werner, 80 Wis. 2d at 519).
¶80 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. The status quo was life. Had Zingsheim died,
obviously access to ivermectin would have been rendered futile.
Notably, not all of this court's cases on temporary injunctive
relief even impose a status quo requirement. See James v.
Heinrich, Nos. 2020AP1419-OA, 2020AP1420-OA & 2020AP1446-OA,
unpublished order, at 2 (Wis. Sept. 10, 2020).
¶81 The circuit court demonstrated it understood both
perspectives on the status quo, and, unlike the court of appeals
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majority, viewed the preservation of the status quo as the
preservation of Zingsheim's right to self-determination. When
Aurora's counsel tried to argue Gahl was changing the "status
quo" the circuit court posed the following question:
I have to interject a question here . . . . [W]e
don't have –– And that's what's missing in the two
doctors' affidavits. What is the ongoing medical
protocol and treatment that's being pursued. I mean,
if, in fact, . . . they're at the end of the line of
their available treatments for . . . Zingsheim and
they're saying, well, we put him on a ventilator and
we’re just going to, you know, see if he can fight
this off without any further intervention, then the
status quo is then, well, we'll just cross our fingers
and hope for the best. And I don't mean to diminish
their medical opinions, but I don't have anything in
the record that says, well, what are we doing to treat
this gentleman other than put him on a ventilator and
hope for the best.
Quite clearly, the circuit court viewed the status quo as
maintaining Zingsheim's life and well-being, not Aurora's denial
of ivermectin. The court's framing of the issue comported with
this court's precedent. The circuit court also repeatedly
voiced its concerns for the "dire" situation. 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.
¶82 No member of this court or the court of appeals has
suggested that Zingsheim had a different and adequate remedy
available at law. "[G]iven Zingsheim's condition," no one
suggests "a transfer to another hospital or checking out of
Aurora" were plausible options. Gahl, 403 Wis. 2d 539, ¶83 n.10
(Grogan, J., dissenting). Death is irreversible. There is no
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remedy at law or otherwise. "It is hard to have patience with
people who say, 'There is no death' or 'Death doesn't matter.'
There is death. And whatever is matters. And whatever happens
has consequences, and it and they are irrevocable and
irreversible." Gahl v. Aurora Health Care, Inc.,
No. 2021AP1787-FT, unpublished order, at 3 (Wis. Oct. 25, 2021)
(Rebecca Grassl Bradley, J., dissenting) (quoting C.S. Lewis, A
Grief Observed 15 (HarperCollins Paperback 1st ed. 1994)
(1961)).
B. Reasonable Probability of Success
¶83 Most of the majority opinion focuses on the reasonable
probability of success. At points, the majority criticizes Gahl
for, in its view, not stating a claim upon which relief could be
granted. Majority op., ¶23. At other points, the majority
acknowledges the circuit court grounded its decision in its
"respect for an individual's right to choose their [sic]
treatment," but the majority proclaims in conclusory fashion
that something more was required. Id., ¶27. The majority is
wrong.
1. Gahl Stated a Claim.
¶84 As a preliminary matter, the majority seems to adopt
the court of appeals majority's insupportable assertion that
"Gahl's claim must fail because he did not identify a source of
law[.]" Id., ¶1; see also id., ¶16 (quoting Gahl, 403
Wis. 2d 539, ¶1 (majority op.)). Based on this mistaken
premise, the majority holds Gahl failed to state a claim. Id.,
¶23. At no point does the majority examine Article I, Section 1
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of the Wisconsin Constitution, the informed consent statute, or
the common law even though all were referenced in Gahl's
petition for relief (among other legal authorities).
¶85 As a matter of natural law, people have a right "to
make their own health care decisions." See Martin, 192
Wis. 2d at 171. 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." Lenz v. L.E. Phillips Career Dev. Ctr., 167
Wis. 2d 53, 69, 482 N.W.2d 60 (1992). But for his
incapacitation, in a free market Zingsheim could have exercised
this right by leaving the hospital; his condition precluded that
option.
¶86 The right to self-determination is also protected by
the informed consent statute. "The doctrine of informed consent
comes from the common law and stems from the fundamental notion
of the right to bodily integrity: '[e]very human being of adult
years and sound mind has a right to determine what shall be done
with his own body[.]'" Martin, 192 Wis. 2d at 169 (quoting
Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92, 93 (1914),
overruled on other grounds by Bing v. Thunig, 143 N.E.2d 3(1957); citing Lenz, 167 Wis. 2d at 68). Interpreting this
court's precedent, the court of appeals explained in a different
decision, "the deference . . . [this precedent] pays to the
patient's right to choose . . . his treatment is important
because it demonstrates that the informed consent statute
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protects more than merely the patient's right to obtain
information." Schreiber v. Physicians Ins. Co. of Wis., 217
Wis. 2d 94, 105, 579 N.W.2d 730 (Ct. App. 1998), aff'd, 223
Wis. 2d 417, 588 N.W.2d 26 (1999). A right to informed consent
presupposes a doctor cannot wholly "ignor[e] the patient's
ultimate choice." Id. Particularly if the patient is trapped
in a hospital, unable to leave, the informed consent statute
would mean very little if it mandated only the provision of
information by a doctor. See id. The court of appeals has
therefore held "in addition to protecting the patient's right to
obtain information, the informed consent statute must protect
the patient's right to choose a medically viable treatment and
have that choice respected by . . . his doctor." Id.¶87 This court also recognizes the "common law right to
self determination[.]" Lenz, 167 Wis. 2d at 67. This court has
explained: "No right is held more sacred, or is more carefully
guarded by the common law, than the right of every individual to
the possession and control of his own person, free from all
restraint or interference of others, unless by clear and
unquestionable authority of law." Id. at 68 (quoting Union Pac.
Ry. v. Botsford, 141 U.S. 250, 251 (1891)). Zingsheim's self-
determination was not constrained by any clear and
unquestionable authority of law. It was constrained by his
inability to leave the hospital.
¶88 Gahl also argued ivermectin fell within the standard
of care. As the court of appeals has previously held:
Where there are two or more medically acceptable
treatment approaches to a particular medical problem,
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the informed consent doctrine, medical ethics, and the
standard of care all provide that a competent patient
has the absolute right to select from among these
treatment options after being informed of the relative
risks and benefits of each approach.
Schreiber, 217 Wis. 2d at 103. On appeal, this court affirmed
on narrower grounds, emphasizing "this opinion should not be
interpreted as requiring physicians to perform procedures they
do not consider medically viable, procedures for which they lack
the appropriate expertise, or procedures to which they are
morally opposed." Schreiber, 223 Wis. 2d 417, ¶15. This court,
however, did not withdraw language from the court of appeals
decision and did not express disagreement with it. More
importantly, the modified order in this case did not require any
doctor to do anything. 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. The circuit court
therefore had authority to ensure Zingsheim had access to
ivermectin. Schreiber, 217 Wis. 2d at 103.
¶89 Gahl identified multiple legal sources in his petition
for relief; regardless, black-letter law does not require a
specific citation to state a claim. "[L]egal theories need not
be fully developed, or even expressly identified, at the
pleading stage." Kohlbeck v. Reliance Const. Co., 2002
WI App 142, ¶12 n.3, 256 Wis. 2d 235, 647 N.W.2d 277 (citing
Murray v. City of Milwaukee, 2002 WI App 62, ¶12 n.6, 252
Wis. 2d 613, 642 N.W.2d 541). In Murray v. City of Milwaukee,
the court of appeals explained:
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The City contends that we should not address Murray's
contention that the City erroneously exercised its
discretion under Wis. Stat. § 895.35 because that was
not alleged in the complaint, and Murray did not make
that argument until his brief in opposition to the
City's motion to dismiss. However, a complaint need
not expressly identify a legal theory, but only the
facts necessary to recover under that legal
theory. . . . Because the City has had the
opportunity, both in the trial court and in this
court, to respond to Murray's legal theory . . . it is
proper to decide the merits of this legal theory.
252 Wis. 2d 613, ¶12 n.6 (citing Nw. Nat. Cas. Co. v. State
Auto. & Cas. Underwriters, 35 Wis. 2d 237, 241, 151 N.W.2d 104(1967); Wis. Stat. § 802.02(1)). The decisions of the United
States Supreme Court are in accord. See Johnson v. City of
Shelby, 574 U.S. 10, 12 (2014) (per curiam) ("The federal rules
effectively abolish the restrictive theory of pleadings
doctrine, making it clear that it is unnecessary to set out a
legal theory for the plaintiff's claim for relief." (quoting 5
Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1219 (3d ed. 2004))). That Court has reversed,
without controversy, decisions of lower federal courts imposing
a specific citation requirement to state a claim. Id. at 11-12.
2. The Circuit Court Correctly Analyzed the Reasonable
Probability of Success Requirement.
¶90 The majority's analysis of the circuit court's
reasoning on Gahl's reasonable probability of success is as
wrong as it is confusing. On one hand, the majority
acknowledges "there are no 'magic words' the circuit court must
utter or any precise level of specificity that is required."
Majority op., ¶26. Undoubtedly, this statement is correct.
This court has rejected a so-called magic words requirement on
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many occasions. Marathon County v. D.K., 2020 WI 8, ¶66, 390
Wis. 2d 50, 937 N.W.2d 901 (Rebecca Grassl Bradley, J.,
concurring) ("We do not impose a 'magic words' requirement in
the law and this court has repeatedly rejected them."
(collecting cases)).
¶91 Contradicting its rejection of a magic words standard,
the majority repeatedly faults the circuit court for not citing
a specific source of law. See, e.g., majority op., ¶12 ("There
was no statutory basis or other legal foundation for the order
set forth in its text."); id., ¶21 n.7 ("The trial
court . . . did not cite any actual law to support its order.");
id., ¶25 ("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."); id. ("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."). It then holds "[w]e need not
address in depth any of Gahl's arguments because we do not know
on what basis the circuit court issued the [temporary]
injunction." Id., ¶21.
¶92 The majority continues, "[t]he circuit court cited no
law either in its written order or in its oral ruling," which
the majority declares is "in itself" a reversible error. Id.
Ironically, the majority does not cite any authority obligating
the circuit court to provide a specific citation, wading into
"the native land of the hypocrite." Oscar Wilde, The Picture of
Dorian Grey 129 (Canterbury Classics 2013) (1891). No effort is
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made by the majority to "determine . . . [whether] the circuit
court employed the reasoning process our precedent demands"
because, the majority claims, this inquiry is impossible without
a specific citation by the circuit court. Majority op., ¶25.
¶93 Although the circuit court did not recite case
precedent or statutory law, it explicitly espoused a
"significant respect for an individual's right to choose and
choose their treatment" clearly grounded in both. In light of
the petition for relief and the record as a whole, this
statement should be sufficient. After all, magic words are not
required. The majority nevertheless claims "such a stray
reference" is insufficient. Id., ¶27. It cites nothing to
support this conclusion.
¶94 No general rule requiring the circuit court to cite a
specific law exists, and in fact, this court has crafted a
special rule requiring a specific statutory citation in just one
context. See Langlade County v. D.J.W., 2020 WI 41, ¶3, 391
Wis. 2d 231, 942 N.W.2d 277. The creation of this special rule
proves the general one. In Langlade County v. D.J.W., this
court held that "going forward circuit courts in recommitment
proceedings are to make specific factual findings with reference
to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on
which the recommitment is based." Id. The rule in D.J.W. was
adopted, in part, because circuit courts left unstated the
statutory basis of recommitments. D.J.W. facilitated appellate
review by imposing a rule of judicial administration. Id., ¶40.
D.J.W. is an anomaly in this court's jurisprudence. If it were
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otherwise, this court would not have needed to make a ruling
specific to recommitment cases. As D.J.W. shows, this court
does not require circuit courts to cite specific legal authority
as a basis for its decision.
¶95 The majority pretends the circuit court's reasoning
was so bad that the majority cannot make heads or tails of it,
but the reasoning is easily discernable. As Judge Grogan
explained:
What is clear from the record . . . is that the
circuit court understood that likelihood of success on
the merits was a required factor, that it was honed in
on the competing medical opinions presented by
Aurora's and Gahl's supporting physicians as to what
treatment would or would not be appropriate for
Zingsheim under the circumstances, and that the
medical information from the parties' various
physicians was central to its determination.
Gahl, 403 Wis. 2d 539, ¶84 (Grogan, J., dissenting).
Critically, "[b]ased on the information in the record," the
circuit court concluded Gahl had established a reasonable
probability of success either under a "right to choose
ivermectin" theory or because the "standard of care" required
it. Id. Under the latter theory, the court did not have to
conclude ivermectin was actually effective——merely that if the
case were to continue, the trier of fact might so find. "The
fact that the circuit court was presented with differing
opinions about what treatment is proper for Zingsheim suggests
the jury is still 'out' as to whether there is only one
particular and established 'standard of care' in treating this
novel virus." Id., ¶89. "Time will eventually reveal what the
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standard of care or reasonable alternative treatment is for
people in Zingsheim's position." Id.
¶96 The majority errs in treating this politically
controversial case differently than other cases involving
similar decisions. "Regardless of the extent of
the . . . [circuit] court's reasoning, [a reviewing court] will
uphold a discretionary decision if there are facts in the record
which would support the trial court's decision had it fully
exercised its discretion." Hurley, 361 Wis. 2d 529, ¶29 (quoted
source omitted) (second modification in the original).
Arguably, the majority must search the record for reasons to
support the circuit court's decision. Altogether absent from
the majority opinion is any attempt to read the record in a
light favorable to the circuit court's discretionary decision.
See State v. Johnson, 2021 WI 61, ¶34, 397 Wis. 2d 633, 961
N.W.2d 18 (quoting Gutierrez, 391 Wis. 2d 799, ¶27).
Alternatively, the majority could remand the case to the circuit
court to better explain its decision. X.S., 402 Wis. 2d 481,
¶58 n.1. When "there [is] room in the facts which d[o] not
confine the [circuit] court to one result," remand is often the
proper remedy. Id. (quoting Paschong, 16 Wis. 2d at 286) (first
modification in the original). Outright reversal is a drastic
remedy, not normally imposed unless the record is totally devoid
of evidence supporting the circuit court's decision. See id.,
¶56 (majority op.).
¶97 On a final note, the majority fails to appreciate the
circumstances the circuit court faced when it made its decision.
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"Wisconsin judges are rarely asked to make life-or-death
decisions. This case present[ed] one of those rare
circumstances [to the circuit court]. The circuit court made a
decision on the side of life." Gahl, No. 2021AP1787-FT, at 3
(Oct. 25, 2021). Zingsheim had COVID-19, and Aurora placed
Zingsheim on a ventilator. Death was a realistic possibility.
Time was of the essence. As the circuit court recognized, the
situation was "dire." The circuit court, which was not a
medical professional, was presented with "polar opposite[]"
information as to whether ivermectin was likely to improve
Zingsheim's condition. Under such fast-paced, high-stakes
circumstances, the majority commits an especially egregious
error by demanding a "polished transcript" from the circuit
court. See X.S., 402 Wis. 2d 481, ¶91 (Hagedorn, J.,
dissenting).
IV. CONCLUSION
¶98 The circuit court considered the relevant facts and
applied the correct legal standard to reach a reasonable
decision in light of the life-or-death circumstances presented.
Like the majority of the court of appeals, a majority of this
court fails to look for reasons to sustain the circuit court's
discretionary decision as the law requires. Under our highly
deferential standard of review, the circuit court properly
exercised its discretion in entering an order granting temporary
injunctive relief to a man near death. I dissent.
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APPENDIX: Unpublished Orders
Gahl v. Aurora Health Care, Inc., No. 2021AP1787-FT, unpublished
order (Wis. Oct. 25, 2022, as amended Oct. 28, 2022).
Gahl v. Aurora Health Care, Inc., No. 2021AP1787-FT, unpublished
order (Wis. Oct. 25, 2021).
Gahl v. Aurora Health Care, Inc., No. 2021AP1787, unpublished
order (Wis. Oct. 21, 2021).
James v. Heinrich, Nos. 2020AP1419-OA, 2020AP1420-OA &
2020AP1446-OA, unpublished order (Wis. Sept. 10, 2020).
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