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Wisconsin appeals court reverses order to give Covid patient ivermectin

A circuit court judge ordered hospital staff to give a Covid-19 patient the controversial drug at the request of the patient’s nephew, but appellate judges say the lower court went too far.

WAUKESHA, Wis. (CN) — A Wisconsin appeals court on Wednesday tossed a circuit court order compelling a hospital to give a Covid-19 patient ivermectin at a relative's request, finding the family member had no right to demand the hospital to provide treatment it felt could be harmful.

According to the decision from Wisconsin's District II Court of Appeals in Waukesha, 60-year-old John Zingsheim contracted Covid-19 in September 2021, was admitted to the ICU at Aurora Health Care’s medical center in the Waukesha County town of Summit on Sept. 19, and was intubated and placed on a ventilator on Oct. 3.

When Zingsheim’s condition worsened, his nephew Allen Gahl, who holds the health care power of attorney for his uncle, requested that, based on his own online research, Aurora staff treat Zingsheim with ivermectin, a drug the U.S. Food and Drug Administration has approved for treatment of certain parasitic infections in humans, and another version and dosage of which is used as a dewormer in animals.

Gahl obtained a prescription for the drug from a doctor, but Aurora staff refused to use it to treat Zingsheim because they believed it to be below the standard of care.

The FDA, Centers for Disease Control and Prevention, American Medical Association and many other health care organizations warn against using ivermectin as a Covid-19 treatment, but it has nevertheless become popular with those skeptical of widely accepted Covid-19 treatments and believers in alternative medicine.

After Aurora’s refusal, Gahl petitioned the Waukesha County Circuit Court for an injunction forcing Aurora to treat his uncle with the drug, which Aurora continued to refuse to do on the basis that it would violate their standard of care, in part because the ivermectin could have negative effects like heart, liver and kidney damage, as well as the potential for stroke.

Extensive arguments were held before Judge Lloyd Carter in Waukesha on Oct. 12 and, after supplemental affidavits were filed at the court’s request, Carter ordered Aurora to administer the drug.

Aurora objected at a show-cause hearing the following day but Carter stuck to his ruling, which he admitted was a “significant step.” The judge clarified his order, though, to say that he was not going to order the hospital to administer the drug but rather allow a credentialed physician to enter its premises and administer the drug as ordered by the doctor who gave Gahl the prescription.

The appellate court stayed the circuit court order upon Aurora’s prompt appeal. Gahl failed to get his case bypassed to the Wisconsin Supreme Court, drawing dissent from three conservative justices who felt the court was shirking its responsibilities in a case with literal life-or-death stakes.

In her majority opinion on Wednesday, Wisconsin Court of Appeals Judge Lori Kornblum—who recently lost a reelection bid to a conservative-backed challenger—found in favor of the hospital and dispensed with all of Gahl’s arguments, including his claim that the standard of care barring ivermectin was politically and financially motivated and encouraged by a propaganda campaign against alternative coronavirus treatments.

“[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,” Kornblum said.

“Because 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 circuit court was wrong to grant his injunction, the judge said.

Gahl’s other arguments—that the authority for his injunction was derived from a Wisconsin statute related to health care power of attorneys, the hospital’s implied contractual duty premised on the Hippocratic Oath, and the circuit court’s equitable authority to compel health care providers to render medical treatment—also fell on deaf ears for Kornblum.

Kornblum was joined in her decision by fellow appeals court Judge Lisa Neubauer, who unsuccessfully ran as a progressive for a seat on the Wisconsin Supreme Court in 2019 and was unexpectedly fired from her position as chief appeals court judge by the chief justice of the state’s highest court last summer.

Judge Shelley Grogan, who rounded out the appeals court’s three-judge panel overseeing the case, dissented on Wednesday, considering the circuit court’s narrowly tailored decision reasonable based on all the available information and suggesting that the medical science on ivermectin is not as definite as it may seem.

“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,” Grogan said, adding that “time will eventually reveal what the standard of care or reasonable alternative treatment is for people in Zingsheim’s position.”

Randall Guse, a Waukesha attorney who represented Aurora in the case, could not be immediately reached for comment on Wednesday. Aurora’s media relations team did not immediately respond to an email inquiring into Zingsheim’s condition and treatment.

According to court records, Gahl was represented by Karen Mueller, a Chippewa Falls-based attorney who is currently running for Wisconsin attorney general. Mueller’s campaign website lists “hospital homicides related to Covid patients” as a top priority, in addition to “bioweapon” Covid vaccines the website claims have killed or injured tens of thousands of people and fraud in the 2020 election.

Mueller did not immediately respond to a message for comment left at the Amos Center for Justice & Liberty, a conservative public interest law firm she founded.

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