Gahl v. Aurora Health Care, Inc.

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The Supreme Court affirmed the decision of the court of appeals reversing the circuit court's issuance of an injunction compelling Aurora Health Care, Inc. to administer Ivermectin to Petitioner's uncle (Patient), holding that the circuit court abused its discretion in issuing the injunction without analyzing Petitioner's reasonable probability of success on the merits.

Patient was in Aurora's care when he tested positive for COVID-19. Petitioner, who held health care power of attorney for Patient, received a prescription for Ivermectin from a retired OB/GYN, but Aurora declined to effect the prescription. Thereafter, Petitioner bright a complaint seeking declaratory and injunctive relief. The circuit court issued an order compelling Aurora immediately to enforce the prescription and administer Ivermectin to Patient. The court of appeals reversed. The Supreme Court affirmed, holding that the circuit court erroneously exercised its discretion by issuing the temporary injunction without referencing any basis demonstrating that Petitioner had a reasonable probability of success on the merits of "some type of legal claim."

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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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: May 2, 2023 January 17, 2023 Circuit Waukesha 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 Mahmood, amicus curiae Patricia brief Epstein was filed Putney, by Melita Ben Seel, M. Mullen, Maher 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. Aurora Health Care, Inc. d/b/a Aurora Medical Center - Summit, MAY 2, 2023 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. ¶1 ANN WALSH BRADLEY, J. The Affirmed. 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. compelled Aurora Health Care, Inc., to That injunction administer a certain No. 2021AP1787-FT The court of appeals determined medical treatment to Zingsheim.1 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 reversing the circuit court's order. of appeals erred in 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 exercised conclude its that discretion the by circuit issuing an court erroneously injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal Gahl 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). 1 2 No. claim. 2021AP1787-FT Accordingly, we affirm the decision of the court of appeals. I ¶5 Gahl holds uncle, Zingsheim. health care power of attorney for his 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 Zingsheim's based condition on with a detailed Mr. Gahl," discussion but never of met Mr. with Zingsheim. ¶7 for Aurora declined to effectuate Dr. Hagen's prescription 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 According 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"). 2 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 court, seeking declaratory and injunctive relief. the circuit 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. parties, but did not reach It heard arguments from both 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. 4 No. 2021AP1787-FT 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 Medical Aurora filed a supplemental affidavit from its Chief 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. ¶13 Almost immediately objected. Aurora referred "extremely problematic." after to the the order circuit Specifically, 2021AP1787-FT issued, court's it Aurora order observed as 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 another Additionally on that date, the circuit court held 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 Gahl v. Aurora Health Care, Inc., No. unpublished order (Wis. S. Ct. Oct. 25, 2021). 5 7 2021AP1787-FT, No. ¶16 In a published opinion, the court of appeals reversed the circuit court's order. Health 2021AP1787-FT Care, N.W.2d 756. Inc., Gahl ex rel. Zingsheim v. Aurora 2022 WI App 29, 403 Wis. 2d 539, 977 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 administer a professional's may course compel of judgment, a health care professional treatment contrary the erroneously court to discretion in granting Gahl injunctive relief." that medical exercised Id. to its 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. probability of success on the merits. 2021AP1787-FT 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 reasonable judge could reach. a conclusion that a Indus. Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726 N.W.2d 898. III ¶19 and We begin by observing the limited nature of our review emphasize that this case is not about Ivermectin as a treatment for COVID-19. the efficacy of 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. ¶21 Aurora disputes each of these bases. 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. The circuit court cited no law in either its the injunction.6 written argument order or before 2021AP1787-FT its this oral ruling, court.7 This as in Gahl conceded itself at oral 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 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. 6 At oral argument before this court, Gahl's counsel engaged in the following colloquy with the court: 7 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: law. The trial court did not identify a specific 10 No. a rational and explainable basis." 2021AP1787-FT 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 Optometry (1977). or reason Examining Bd., behind 81 the choice." Wis. 2d 292, Reidinger 297, 260 v. N.W.2d 270 "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." ¶23 in the consider McCleary, 49 Wis. 2d at 277. A circuit court erroneously exercises its discretion context and of a temporary make a record determination." injunction of the when factors it "fails relevant to to its 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. ¶24 factors Id. at 374; see Wis. Stat. § 813.02(1)(a). Although that must the be circuit court fulfilled in acknowledged order for a the four 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. Gahl had presented. 2021AP1787-FT 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 process, reach. reached of a law, and, conclusion using that a a demonstrated reasonable rational judge could See Indus. Roofing Servs., 299 Wis. 2d 81, ¶41. Here, the record is lacking in this respect. ¶27 point The stated circuit that court is "has heard a legal argument significant individual's right to choose their treatment." stray reference does not equate to a legal and respect at one for an However, such a analysis of probability of success on the merits of Gahl's legal claim. the The circuit court did not tie such "respect" to any legal analysis 12 No. 2021AP1787-FT 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 affirmed. 13 of the court of appeals is No. ¶29 REBECCA GRASSL BRADLEY, J. 2021AP1787-FT.rgb (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. I, § 1. See Wis. Const. art. 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. § 1. people Wis. Const. art. I, The Wisconsin Constitution exists not only to protect the from an overreaching people's government non-state actors. to government protect See their generally 1 but to individual Jacobs v. empower the freedom from Major, 139 No. Wis. 2d 492, 535, 407 N.W.2d 832 (1987) 2021AP1787-FT.rgb (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 See Immanuel to whom the non-state actor owed a duty of care.1 Kant, Groundwork Bennett ed., for amend. the Metaphysics 2008) (1785) of Morals (calling 34 (Jonathan decision-making autonomy "the basis for the dignity of human nature"). Zingsheim contracted threatened the world.2 a privately-owned COVID-19——a serious virus John that has He became so sick that he lay comatose in hospital, Aurora Medical Center-Summit——his life sustained by a feeding tube and ventilator. was a prisoner of circumstance: In a sense, he unable to be safely moved, he had no practical ability to exercise his natural right to seek treatment elsewhere. Richards, 192 See, Wis. 2d 156, e.g., 172, Martin 531 ex rel. N.W.2d 70 Scoptur (1995) v. (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 The Honorable Lloyd V. Carter, Waukesha County Circuit Court, presided. 1 As 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 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."). allow Aurora to dictate Zingsheim's Rather than 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 issue: On review, Whether this the court circuit is presented court properly with a single 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. 3 No. ¶34 The resolution of this issue "highly deferential" standard of review. Vandenberg, (quoting 2016 WI 49, Klawitter Wis. 2d 685, 623 v. ¶16, 369 Klawitter, N.W.2d 169). is governed The by the See Prince Corp. v. Wis. 2d 387, 2001 2021AP1787-FT.rgb WI 882 N.W.2d 371 App 16, circuit court ¶8, 240 properly exercised its discretion by considering the relevant facts and applying the correct reasonable conclusion. legal standard, ultimately reaching Gahl, 403 Wis. 2d 539, ¶90. a 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 exercised its discretion." decision had it fully 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." 4 No. 2021AP1787-FT.rgb 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 standard of Wis. 2d 940, 961, 471 N.W.2d 493 (1991)). ¶36 review, If it decision. the the majority would be applied forced to the uphold correct the circuit court's As Judge Shelley A. Grogan, who was on the panel at court of appeals, the . . . decision applicable law." was wrote in reasoned and dissent, based on "it the is clear record and 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. ¶37 BACKGROUND 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 19 in This tragedy started when Zingsheim contracted COVID- September 2021. His condition deteriorated rapidly. Zingsheim began receiving treatment at an Aurora hospital where his condition worsened. unit. He was placed in the intensive care He was then transferred to Aurora Summit and was on "full intubation ventilation," which the petition for relief describes 5 No. as "ventilation treatment that requires full 2021AP1787-FT.rgb 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" ventilation places on the lungs is "unnatural[.]" that The high pressure setting on which Zingsheim was placed could cause semipermanent damage by "blow[ing] "scar[ring] the tissues[.]" developed "perforated in . . . lungs" and While at Aurora Summit, Zingsheim lungs," counsel, caused bleeding. holes which, according to Gahl's 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. drug Aurora provided Zingsheim that Remdesivir was the only was specifically treating COVID-19, as opposed to his symptoms. for 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 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/whorecommends-against-the-use-of-remdesivir-in-covid-19-patients#:6 3 No. remdesivir, Zingsheim's administering it, worried family it may demanded cause 2021AP1787-FT.rgb Aurora severe side stop 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 survive." became He "fear[ful]" averred, that . . . [COVID-19] "[i]t patients that Zingsheim is . . . now on full would common ventilation "not knowledge 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. 7 No. 2021AP1787-FT.rgb 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 for . . . Zingsheim[.]").4 scope of this writing. obtain treatment with [i]vermectin Exactly why is unclear and beyond the 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. Four unpublished orders of this court are cited in this writing. For transparency, a copy of each is provided in the appendix. 4 8 No. 2021AP1787-FT.rgb 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/understandingunapproved-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 'offlabel' 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. dramatic the rhetorical effect, majority Apparently for even notes that ivermectin, which, to reiterate, is approved for humans, is also used to treat animals.5 ¶43 Id. Gahl's research led him to conclude ivermectin could be an effective treatment for COVID-19. Various studies Gahl 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.'"). 5 9 No. 2021AP1787-FT.rgb 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 Dr. Hagen, he spoke with Gahl who conveyed to him information about his averred reviewed he [u]ncle's condition." Zingsheim's eight-page to "detailed Dr. Hagen medical which was in the record before the circuit court. also history, Dr. Hagen then prescribed Zingsheim ivermectin. ¶45 Gahl requested that Aurora administer ivermectin as Dr. Hagen had Dr. James Holmberg, averred, prescribed, M.D., "[i]vermectin administered "per executives——not but Aurora's was system Aurora requested policy." doctors——were making refused. Chief Medical by family" Gahl alleges broad Curiously, policies Officer, but not corporate 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 petition for relief. a number of legal theories in the Most pertinently, Gahl emphasized, "the hospital . . . has sole custody of the patient due to his poor 10 No. medical condition[.]" Consequently, 2021AP1787-FT.rgb 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. petition: As noted in the "[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." 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."). 6 11 No. ¶49 The majority inaccurately suggests 2021AP1787-FT.rgb Gahl may have forfeited several legal arguments by not advancing them before the circuit court. not argue a assertions Specifically, the majority claims Gahl did contract are theory untrue——even or the a HCPOA court acknowledged these arguments were made. theory, of but appeals these majority 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 claim that the court has authority to act in this case. arguments Gahl set forth follows: (1) failure to in his provide original the petition treatment are violated his The as 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. ¶50 Gahl, 403 Wis. 2d 539, ¶¶36–37, 47–48. 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 12 No. order Aurora to administer the drug, "other" 2021AP1787-FT.rgb 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 not of appeals majority speculated an agreement might "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, hospital suing policies.'" to obtain (quoting care Frey v. that is Trinity contrary to 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. highly inappropriate for The court explained, "I think it this [c]ourt to set aside its obligations under the law and act in a vacuum without proper basis or knowledge." the court "emergency held a medical After the missing materials were filed, hearing on injunctive what relief 13 its characterized petition." The as an court No. emphasized the urgency presented by Gahl's 2021AP1787-FT.rgb 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" evidence. relation to base its decision "on emotion" instead of The court also recognized it was a "layperson" in 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. these decisions were provided as exhibits. Some of 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-yearold 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. during the hearing, Aurora analogized the Repeatedly administration of ivermectin to the administration of bleach; however, the court rejected the analogy: in somebody's veins "we're not talking about putting bleach 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 recited Toward the close of the hearing, the circuit court the dispute this. correct legal standard; the majority does 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 not 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 circuit After court mentioned articulating explained Zingsheim's the correct legal various factual considerations. serious condition standard, and the the It competing evidence regarding whether ivermectin would be effective. was also concerned with preserving Zingsheim's life, It noting, "the petitioner has asserted that if this [c]ourt doesn't act, act now, act Critically, it today, . . . Zingsheim also expressed "a is going significant to respect die." for individual's right to choose and choose their treatment." an Even still, the court understood this right is not absolute——very few rights are. ¶57 The information circuit to court determine then whether requirements had been satisfied. about how ivermectin. Dr. Hagen had found made the it lacked sufficient temporary injunction It wanted more information his decision to prescribe More generally, it recognized that both Zingsheim's 16 No. 2021AP1787-FT.rgb condition and the viability of ivermectin as a treatment for COVID-19 without were key considerations. additional difficult . . . to information assess what, on As the these in fact, court matters, we're explained, "it's very 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. they can't do that." And 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 17 "based on the patient's 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." also attested, other cases "I have with prescribed generally [i]vermectin favorable cases of side effects from the drug."7 from Dr. Holmberg——his second in results in and about no He 300 serious Aurora filed an affidavit the case——which described Zingsheim's treatment plan. ¶60 The majority's misuse of affidavits reveals misunderstanding regarding the standard of review. its 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. majority also takes a See Majority op., ¶7. not-so-subtle referring to him as a retired OB/GYN. court of appeals majority shot at Id., ¶6. mentioned that Dr. Hagen The by Similarly, the 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. aware of Gahl, 403 Wis. 2d 539, ¶8. these facts. The court The circuit court was 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 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). 7 18 No. 2021AP1787-FT.rgb court is not the trier of fact and must defer to the circuit court's credibility determinations. ¶61 After circuit court reviewing ordered the supplemental Aurora Zingsheim as prescribed. to materials, administer the ivermectin to 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 of appeals. ¶62 to The next day, the circuit court held a second hearing 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. damages that come about as a result It's for COVID and the of COVID." accepted the representation of Gahl's counsel. The court It then orally modified its prior order. ¶63 The physician identified credentialing administer modified order by criteria, ivermectin.8 required Gahl, who to have The modified Aurora met to Aurora's access order to did allow standard Zingsheim not a to require As 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. 8 19 No. Aurora's medical staff to administer, or 2021AP1787-FT.rgb 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 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 20 that No. 2021AP1787-FT.rgb [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 Gahl and Aurora began to negotiate. modified its order, According to the court of appeals majority, Aurora was "on the cusp of providing temporary credentials releases." to an outside Id., ¶26 n.19. provider, subject to Gahl signing 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 21 No. not know the exact contents of that ruling. 2021AP1787-FT.rgb 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 not. the law, . . . Zingsheim, fighting for his life, does 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 circuit court's order as orally modified. Gahl, 403 Wis. 2d 539, ¶25 n.18. This court likewise reviews the modified order. 9 22 No. 2021AP1787-FT.rgb 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 Gahl, 403 Wis. 2d 539, ¶1 (majority op.). judgment." 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." ¶70 Id., ¶64. 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 court properly exercised its discretion. concluded the circuit Id., ¶¶88, 90. Gahl petitioned this court for review, which this court granted. II. ¶71 STANDARD OF REVIEW 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, 23 No. 2021AP1787-FT.rgb 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, 102 163 Wis. 2d at 889 (citing Hartung v. Hartung, 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 exercised its discretion." Hurley, 361 Wis. 2d 529, fully ¶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, N.W.2d 438 (1962)). 24 16 Wis. 2d 284, 286, 114 No. ¶73 the 2021AP1787-FT.rgb A circuit court may issue a temporary injunction if requirements satisfied. of Wis. Stat. § 813.02(1)(a) (2019–20) are 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 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, the 80 Wis. 2d at 519). III. ¶74 ANALYSIS 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. Similarly, majority the of court this of court appeals affirms, 25 majority seriously Majority op., ¶24. opinion, which the misunderstood the No. elements. A majority of this court 2021AP1787-FT.rgb 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 405 Wis. Mfrs. & Com. v. Evers, 2023 WI 5, ¶2, Wis. 2d 478, 984 N.W.2d 402 (per curiam) (noting that while this court has not addressed the issue directly, when this affirms a published opinion of the court of court 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. ¶75 circuit The Other Requirements Judge Grogan's court's analysis dissent of the accurately describes requirements: "The 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 pertained "irreparable harm to 26 condition" (death)" and unquestionably the "status quo No. (life)[.]" Id. "Additionally, 2021AP1787-FT.rgb given . . . the finality death, there was no other adequate remedy at law[.]" ¶76 in the of Id. The court of appeals' discussion of irreparable harm 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 agreement. improper. part: is to civil Id. liability despite the hold-harmless Analyzing the potential harm to Aurora was Wisconsin Stat. § 813.02(1)(a) provides, in relevant, "When it appears from a party's pleading that the party 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 . . . ." added.) (Emphasis As indicated by the plain language of § 813.02(1)(a), the irreparable harm requirement concerns injury to "the party asking for relief." Mar. 2023). have See 43A C.J.S. Injunctions § 68 (updated Accordingly, the court of appeals majority should evaluated whether Aurora's conduct would "violate a right . . . and injure [Zingsheim]" in a way that Zingsheim's injury would be "irreparable." Farmers Org., 90 Pure Milk Prods. Co-op. v. Nat'l Wis. 2d 781, 800, 280 N.W.2d 691 (1979) (citations omitted). ¶77 The court modified order. of appeals majority mischaracterized the The modified order did not compel Aurora to 27 No. drug, so Aurora's 2021AP1787-FT.rgb administer the 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 closely precedent, related to the the status irreparable quo requirement is 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 harm 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 temporary duty of the injunction, court if to its preserve disturbance the status pendente quo lite by 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 Zingsheim to obtain his ultimate requested relief: ivermectin. The status quo was life. Had for access to Zingsheim died, obviously access to ivermectin would have been rendered futile. Notably, not all of this court's cases on temporary injunctive relief even Heinrich, impose Nos. a status quo 2020AP1419-OA, requirement. 2020AP1420-OA See & James v. 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 29 No. majority, viewed the preservation of the 2021AP1787-FT.rgb status quo as preservation of Zingsheim's right to self-determination. the 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. this court's voiced its The court's framing of the issue comported with precedent. concerns for The circuit the "dire" court also situation. repeatedly 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. (Grogan, J., dissenting). Gahl, 403 Wis. 2d 539, ¶83 n.10 Death is irreversible. 30 There is no No. remedy at law or otherwise. 2021AP1787-FT.rgb "It is hard to have patience with people who say, 'There is no death' or 'Death doesn't matter.' There is death. has And whatever is matters. consequences, and irreversible." it Gahl and v. And whatever happens they are Aurora irrevocable Health Care, and 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. ¶83 Reasonable Probability of Success 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. acknowledges "respect the for treatment," an but circuit court individual's the At other points, the majority majority grounded right to proclaims that something more was required. its in decision choose their conclusory Id., ¶27. in its [sic] fashion The majority is wrong. 1. ¶84 the court Gahl Stated a Claim. As a preliminary matter, the majority seems to adopt of appeals majority's insupportable assertion that "Gahl's claim must fail because he did not identify a source of law[.]" Id., Wis. 2d 539, ¶1 ¶1; see (majority also id., op.)). ¶16 Based (quoting on this Gahl, mistaken premise, the majority holds Gahl failed to state a claim. ¶23. 403 Id., At no point does the majority examine Article I, Section 1 31 No. 2021AP1787-FT.rgb 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 make As a matter of natural law, people have a right "to their own health Wis. 2d at 171. care decisions." See Martin, 192 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." Wis. 2d 53, 69, Lenz v. L.E. Phillips Career Dev. Ctr., 167 482 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 (1957); on other citing grounds Lenz, 167 by Bing Wis. 2d at v. Thunig, 68). 143 N.E.2d 3 Interpreting this court's precedent, the court of appeals explained in a different decision, "the patient's right because it deference . . . [this to choose . . . his demonstrates that the 32 precedent] treatment informed pays is consent to the important statute No. protects more information." Wis. 2d 94, than merely the patient's 105, a right to obtain Schreiber v. Physicians Ins. Co. of Wis., 217 579 N.W.2d 730 (Ct. Wis. 2d 417, 588 N.W.2d 26 (1999). presupposes 2021AP1787-FT.rgb doctor ultimate choice." cannot Id. App. 1998), aff'd, 223 A right to informed consent wholly "ignor[e] the patient's 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." ¶87 Id. This court also recognizes the "common law right to self determination[.]" explained: Lenz, 167 Wis. 2d at 67. This court has "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, unquestionable authority of law." unless by clear and Id. at 68 (quoting Union Pac. Ry. v. Botsford, 141 U.S. 250, 251 (1891)). Zingsheim's self- determination any was not constrained unquestionable authority of law. by clear and It was constrained by his inability to leave the hospital. ¶88 of care. Gahl also argued ivermectin fell within the standard 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, morally opposed." or procedures to which Schreiber, 223 Wis. 2d 417, ¶15. they are 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 find to reasonably that ivermectin was a viable medical treatment; Dr. Hagen's affidavit alone was a sufficient basis on therefore which had ivermectin. ¶89 for to make authority this to finding. ensure fully regardless, developed, stage." WI App 142, Murray v. had court access to Gahl identified multiple legal sources in his petition relief; pleading Zingsheim circuit Schreiber, 217 Wis. 2d at 103. black-letter specific citation to state a claim. be The ¶12 City or even of 256 v. Reliance Wis. 2d 235, Milwaukee, Wis. 2d 613, 642 N.W.2d 541). does not require a "[L]egal theories need not expressly Kohlbeck n.3, law 2002 647 identified, Const. at Co., N.W.2d 277 WI App 62, ¶12 the 2002 (citing n.6, 252 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." Charles Alan Wright & Arthur R. Miller, Procedure § 1219 (3d ed. 2004))). Federal (quoting 5 Practice & That Court has reversed, without controversy, decisions of lower federal courts imposing a specific citation requirement to state a claim. 2. The Circuit Court Correctly Analyzed the Reasonable Probability of Success Requirement. ¶90 reasoning wrong Id. at 11-12. as The on it majority's Gahl's is analysis reasonable confusing. of the probability On one circuit of court's success hand, the is as 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 35 No. many occasions. Wis. 2d 50, 2021AP1787-FT.rgb Marathon County v. D.K., 2020 WI 8, ¶66, 390 937 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 injunction." ¶92 the circuit court issued the [temporary] Id., ¶21. 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). 36 No effort is No. 2021AP1787-FT.rgb 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. ¶93 precedent Although or the circuit statutory court law, it Majority op., ¶25. did not recite explicitly case espoused a "significant respect for an individual's right to choose and choose their treatment" clearly grounded in both. In light of the whole, petition for relief and the statement should be sufficient. required. The majority record a this After all, magic words are not nevertheless reference" is insufficient. as claims Id., ¶27. "such a stray It cites nothing to support this conclusion. ¶94 specific No general rule requiring the circuit court to cite a 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. proves the general one. The creation of this special rule 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." adopted, in part, because Id. circuit statutory basis of recommitments. The rule in D.J.W. was courts left unstated D.J.W. facilitated appellate review by imposing a rule of judicial administration. D.J.W. is an anomaly in this court's jurisprudence. 37 the Id., ¶40. If it were No. 2021AP1787-FT.rgb 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 explained: 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 Critically, circuit Wis. 2d 539, "[b]ased court probability on ¶84 the concluded of information Gahl success (Grogan, had either J., in dissenting). the established under a record," a "right the reasonable 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. fact that the circuit court was presented with "The 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 38 No. standard of care or reasonable people in Zingsheim's position." ¶96 The controversial similar majority case errs alternative treatment is for Id. in differently decisions. 2021AP1787-FT.rgb treating than other "Regardless of this politically cases the involving 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 exercised its discretion." source omitted) (second fully Hurley, 361 Wis. 2d 529, ¶29 (quoted 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 18 391 (quoting Gutierrez, Wis. 2d 799, ¶27). Alternatively, the majority could remand the case to the circuit court to better explain its decision. ¶58 n.1. X.S., 402 Wis. 2d 481, 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. 39 No. "Wisconsin judges decisions. are This rarely case asked to present[ed] decision on the side of life." (Oct. 25, 2021). Time was of the essence. medical was "dire." as Zingsheim's condition. error by court. rare The circuit court made a Gahl, No. 2021AP1787-FT, at 3 the X.S., Under Wis. was not a "polar opposite[]" was likely to fast-paced, an 481, from ¶91 improve high-stakes especially transcript" 2d which with such commits "polished 402 court, ivermectin majority a circuit presented whether demanding See those As the circuit court recognized, the was information circumstances, of Death was a realistic possibility. The professional, to life-or-death Zingsheim had COVID-19, and Aurora placed Zingsheim on a ventilator. situation make one circumstances [to the circuit court]. 2021AP1787-FT.rgb egregious the circuit (Hagedorn, J., dissenting). IV. ¶98 applied CONCLUSION The circuit court considered the relevant facts and 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. deferential standard of review, the circuit Under our highly court properly exercised its discretion in entering an order granting temporary injunctive relief to a man near death. 40 I dissent. No. APPENDIX: 2021AP1787-FT.rgb 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). 41 & No. 1 2021AP1787-FT.rgb No. 2 2021AP1787-FT.rgb No. 3 2021AP1787-FT.rgb No. 4 2021AP1787-FT.rgb No. 5 2021AP1787-FT.rgb No. 6 2021AP1787-FT.rgb No. 7 2021AP1787-FT.rgb No. 8 2021AP1787-FT.rgb No. 9 2021AP1787-FT.rgb No. 10 2021AP1787-FT.rgb No. 11 2021AP1787-FT.rgb No. 12 2021AP1787-FT.rgb No. 13 2021AP1787-FT.rgb No. 14 2021AP1787-FT.rgb No. 15 2021AP1787-FT.rgb No. 16 2021AP1787-FT.rgb No. 17 2021AP1787-FT.rgb No. 18 2021AP1787-FT.rgb No. 19 2021AP1787-FT.rgb No. 20 2021AP1787-FT.rgb No. 21 2021AP1787-FT.rgb No. 22 2021AP1787-FT.rgb No. 23 2021AP1787-FT.rgb No. 24 2021AP1787-FT.rgb No. 25 2021AP1787-FT.rgb No. 1 2021AP1787-FT.rgb

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