Allen Gahl v. Aurora Health Care, Inc.

2023 WI 35, 989 N.W.2d 561, 977 N.W.2d 756, 403 Wis. 2d 539

• Court: Wisconsin Supreme Court
• Decided: May 2, 2023
• Docket: 2021AP001787-FT
• Status: Published

Opinion

2023 WI 35

SUPREME 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 756 PDC 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 35 NOTICE 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").

3 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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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.

5 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.

6 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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¶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 9 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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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 11 No. 2021AP1787-FT

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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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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¶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

1 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 No. 2021AP1787-FT.rgb

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.

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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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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.'").

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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

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 14 No. 2021AP1787-FT.rgb

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 No. 2021AP1787-FT.rgb

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 17 No. 2021AP1787-FT.rgb

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).

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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

¶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,

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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)).

24 No. 2021AP1787-FT.rgb

¶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 25 No. 2021AP1787-FT.rgb

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 28 No. 2021AP1787-FT.rgb

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, 33 No. 2021AP1787-FT.rgb

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:

34 No. 2021AP1787-FT.rgb

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

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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