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Involuntary medication litigation meets Covid-19 litigation

Involuntary medication litigation and Covid-19 litigation were bound to cross paths, especially with all the vaccine mandates. But who could have foretold the twist presented by SCOW’s decision on Monday in Gahl v. Aurora Health Care, Inc., 2021AP1787-FT? Allen Gahl, attorney in fact for John Zingsheim, who is on a ventilator, sought a court order forcing Aurora to administer Ivermectin (de-worming medication) to him.

Apparently, Dr. Edward Hagen, who has never met Zingsheim or reviewed his medical records, prescribed Ivermectin for him in a dosage that, according to Aurora, is potentially lethal and cannot be administered to a patient who is intubated. The Waukesha County Circuit Court ordered Aurora to administer the drug against its will anyway.

Aurora informed the circuit court that Zingsheim had tested negative for Covid-19. Then the parties began negotiating an order that would allow Zingsheim’s attorney in fact to find a doctor to administer the potentially lethal de-wormer to Zingsheim at Aurora. Before that got resolved Aurora successfully petitioned for leave to appeal the circuit court’s non-final order. The court of appeals sua sponte stayed the circuit court’s order pending appeal.

Gahl then filed an emergency petition to bypass, which is the subject of SCOW’s October 25th order. Justices A.W. Bradley, Dallet, Karofsky, and Hagedorn voted to deny the petition for bypass because it presents “unresolved questions of fact” and fails to present a well-developed legal issue that meets SCOW’s criteria for review.

Justice Rebecca Bradley filed a strident dissent, joined Rogggensack and Ziegler, stating that Zingsheim is in a drug-induced coma battling Covid-19 and that his family wants him to have Ivermectin prescribed by the doctor who had never met him or reviewed his records because otherwise, he could suffer irreparable harm–death.

Bradley objected vehemently to the court of appeals’ stay because Aurora never asked for it and because the court of appeals failed to explain its exercise of discretion as required by State v. Scott, 2018 WI 74, ¶¶40-41, 382 Wis. 2d 476, 814 N.W.2d 141. At a minimum, she argued, the stay should be reversed.

Scott holds that a circuit court’s order for the government’s involuntary administration of medication to a patient is automatically stayed (i.e. the circuit court doesn’t get to exercise discretion) pending appeal because otherwise the appeal would be rendered a nullity. The court of appeals has the discretion to lift or continue the stay but it must explain its reasons either way.

In this case, Zingsheim’s family and attorney in fact sought (at least initially) to force Aurora to administer Ivermectin to him. We don’t know Zingsheim’s views on the matter. The dissent does not acknowledge the possibility that without the stay the drug could have killed him faster than whatever is ailing him. Given that some justices say “Zingsheim tested negative for Covid 19 and the prescribed dosage of Ivermectin could kill him” and other justices say “Zingsheim is dying of Covid 19 and Ivermectin could save him” this case does indeed present “unresolved questions of fact.”

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