In Gahl v. Aurora Health Care, Inc., a Wisconsin appellate court extended a line of decisions in other states that have allowed hospitals to block potentially life-saving ivermectin treatment for patients trapped in the hospital with COVID-19:
| “ | Courts in eight different states that have considered this issue have reached the same conclusion that we do here: that a court lacks the legal authority to force a private medical facility to provide treatment that it concludes is below the standard of care. See Texas Health Huguley, Inc. v. Jones, 637 S.W.3d 202, 214 (Tex. App. 2021) ("The judiciary is called upon to serve in black robes, not white coats. And it must be vigilant to stay in its lane and remember its role. Even if we disagree with a hospital's decision, we cannot interfere with its lawful exercise of discretion without a valid legal basis."); DeMarco v. Christiana Care Health Servs. Inc., 263 A.3d 423, 426 (Del. Ch. 2021); Abbinanti v. Presence Cent. & Suburban Hosps. Network, 2021 IL App (2d) 210763, 455 Ill. Dec. 557, 191 N.E.3d 1265, ¶¶18-23 ("Every published appellate decision involving a request by a patient to force a hospital or doctor to administer Ivermectin to treat COVID-19 has rejected that request."); Frey v. Trinity Health-Michigan, No. 359446, 2021 Mich. App. LEXIS 6988, at *13 (Mich. Ct. App. Dec. 10, 2021) ("Patients, even gravely ill ones, do not have a right to a particular treatment, and medical providers' duty to treat is coterminous with their standard of care. This court will wield its equitable powers only to enforce a right or duty; in their absence, relief is not available." (citation omitted)); D.J.C. v. Staten Is. Univ. Hospital- Northwell Health, 73 Misc. 3d 840, 157 N.Y.S.3d 667 (N.Y. App. Div. 2021); Pisano v. Mayo Clinic Fla., 333 So. 3d 782 (Fla. Dist. Ct. App. 2022) ("The question here is not about whether Mr. Pisano (or his proxies) may 'choose life'; it is whether Mr. Pisano has identified a legal right to compel Mayo Clinic and its physicians to administer a treatment they do not wish to provide. The answer is no." (footnote omitted)); see also Marik v. Sentara Healthcare, No. CL21-13852, 2021 Va. Cir. LEXIS 219, at *10-12, 109 Va. Cir. 88 (Va. Cir. Ct. Nov. 23, 2021); Smith v. West Chester Hosp., LLC, No. CV 2021 08 1206, 2021 Ohio Misc. LEXIS 103 (Ohio C.P. Sept. 6, 2021). | ” |
Gahl v. Aurora Health Care, Inc., 403 Wis. 2d 539, 578-79, 977 N.W.2d 756, 775-76 (Ct. App. 2022).
A strong dissent concluded with the following:
| “ | P89 Although Wisconsin law does not afford a patient the right to demand any treatment the patient desires, it does recognize a patient's right to request and receive medically viable alternative treatments. See Schreiber, 217 Wis. 2d at 105; Wis. Stat. § 448.30 (2019-20). 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. Time will eventually reveal what the standard of care or reasonable alternative treatment is for people in Zingsheim's position. What is important here is that the circuit court had before it information from two independent physicians (one indicating he was the world's foremost expert on treating COVID-19) who both agreed that a protocol different than that which Aurora had administered, without success, would be proper and could be beneficial to Zingsheim.
P90 The circuit court here considered the pertinent facts and, based on the competing medical information provided, reached a reasonable determination. It determined based on the information before it that Gahl satisfied the necessary injunction factors, and it fashioned a narrowly-tailored order. Because the circuit court did not erroneously exercise its discretion, I would affirm its order. I dissent. |
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Gahl v. Aurora Health Care, Inc., 403 Wis. 2d 539, 603-04, 977 N.W.2d 756, 787-88 (Ct. App. 2022) (Grogan, J., dissenting).