In his excellent guide to the perplexed young lawyer, The Curmudgeon’s Guide to Practicing Law, co-DDL blog founder Mark Herrmann offers all sorts of good advice. One bit that we particularly remember is that the best case authority is a reversal of a court that ruled the way your opponent wants. It’s nice to be able to tell your Judge, ‘If you decide against me you’ll get overturned.’ (You will, of course, say this very respectfully.)
We’ve been writing for a while about cases rejecting someone’s insistence that a doctor prescribe ivermectin for Covid-19, even when that doctor (or hospital) thinks such use of ivermectin is not appropriate medical care – is, in fact, horsebleep.
In Gahl v. Aurora Healthcare, 2022 WL 1657559 (Wisc. Ct. App. May 25, 2022), the Wisconsin Court of Appeals reversed a lower court’s granting of an injunction compelling treatment with ivermectin. The case was brought by a Covid-19 patient’s nephew, who was acting as the patient’s health care representative. Based on some internet research, the nephew became convinced that his uncle was in desperate need of ivermectin. The defendant health care facility argued that nothing in Wisconsin law gives a patient the right to force a private health care provider to administer a treatment that the health care provider believes is below the standard of care. The lower court heard a lot of evidence and argument, seemed clearly uncomfortable with the issue, and issued a rather uncertain, unclear injunction in favor of the ivermectin prescription. But however uncertain and unclear, it was still an injunction. The health care facility appealed.
The Gahl appellate court pointed out that the lower court’s order “did not identify any claim set forth” that “supported the request for relief, much less the legal authority supporting the claim.” The first test for an injunction is whether the party seeking it can show a reasonable probability of success. No such probability of success existed here. As usual, the information submitted in support of ivermectin was thin gruel. One doctor wrote an ivermectin prescription based solely on statements from the patient’s wife. Our favorite part of the plaintiff’s case was the reliance on unsworn affidavits and prior testimony by a Dr. Kory, who stated that he is “generally considered the foremost expert” on the proposed Covid treatment. Naturally, this elicited a chuckle from us, as it reminds us of the great comedian “Professor” Irwin Corey, who pronounced himself the “foremost authority.” Foremost authority on what? Everything. And really nothing. Professor Corey could emit a sustained and hilarious blast of nonsense on any obscure point. That was his gig. He was just pretending. But sometimes in the battle of the experts, you find yourself needing to show that some Foremost Authority is really spouting nonsense. The Gahl appellate court wryly observed that the Kory declaration was “conspicuously devoid of any discussion of the patient in this case.”
By contrast, the defendant submitted a doctor affidavit that discussed the patient’s history and treatment plan in detail. That doctor concluded to a reasonable degree of medical probability that the ivermectin would have “no beneficial effect”for the patient, and that the hospital should not be forced to provide treatment that fell below the standard of care. The defense doctor’s first point had solid factual support. The plaintiff could counter only with unsupported attacks on the medical standard of care as politically and financially biased. The appellate court was unimpressed. The defense doctor’s second point was more legal than factual, but the defense doctor got the law right.
The plaintiff on appeal scrambled to come up with some legal authority for the injunction. He abandoned some arguments, tried (unsuccessfully) to add one, and in the end was left with contending that the district court had authority to grant a declaratory judgment and issue an injunction based on three things: (1) Wisconsin law on Health Care Power of Attorneys (HCPOA); (2) an implied contractual duty based on the Hippocratic Oath; and (3) “legal and equitable authority to compel a licensed health care provider to render medical treatment.”
None of those arguments passed muster. As a preliminary matter, the declaratory judgment statute by itself creates no substantive rights. There has to be substantive law supporting the declaration (and injunction), and the not have it in this case. A health care power of attorney can veto treatment, but nothing in the statute’s definition of a “health care decision” requires a health care provider “to act on the HCPOA’s requests or demands for specific treatment that is below the standard of care.” The Hippocratic Oath does not create any implied contractual rights enforceable by the patient. Finally, a court has no “inherent authority” to require doctors to engage in any medical treatment, let alone substandard treatment. When one is left jabbering about “inherent authority,” one is usually in dire straits. Such “inherent authority” typically extends to situations in which it is necessary for the court to “prevent impairment of the court’s power or efficacy,” or regulate the bench or bar, or take action to “ensure that our courts function efficiently and effectively.” None of those concerns were implicated here. The plaintiff simply had no legal support for the injunction. The Gahl court even considered the Hail Mary pass of substance due process, but concluded, sensibly, that patients have no due process right to compel medical providers to give them the medical treatment of their choice (citing among others the Abigail Alliance case that we discussed here).
The plaintiff’s attorney told the appellate court in Gahl that plenty of other courts had ordered doctors to treat with ivermectin even if they didn’t want to, but in the end “[n]o such orders appear in the record.” The plaintiff attorney “provided no published opinions, did not provide an affidavit, and did not testify under oath.” Instead, the Gahl court found courts in eight different states that considered the same issue and declined to force a health care provider to administer ivermectin against its will and judgment.
Having flunked the first test of likelihood of success, the Gahl injunction had to be reversed. But other criteria for injunctions also worked against the plaintiff. For example, with respect to likelihood of irreparable harm, the health care facility argued that ivermectin was likely to do irreparable harm to the patient, and then the healthcare facility could be on the hook for medical malpractice. The lower court thought it got around that (though there were several other problems that it did not address) by forcing the plaintiff to execute a release of liability. Rather than make the injunction workable, that forced release seems to recognize the likelihood that ivermectin treatment is below the standard of care. It is, in fact, further evidence that the lowest court’s injunction was folly.
The Gahl opinion is well reasoned and exacting. It was a 2-1 decision. The dissent seems largely premised on deferring to the lower court’s discretion. The majority opinion has much the better of it, and adds to the potent authority against forcing health care practitioners to practice bad medicine.