Judge Denies Gag Order on Wrongful Death Depositions

A judge is allowing the release of deposition transcripts and audio files in the wrongful death case of a young woman who died in a hospital during the COVID-19 pandemic because of an unauthorized do-not-resuscitate (DNR) order.

Grace Schara, a 19-year-old with Down’s Syndrome, died at St. Elizabeth’s (Ascension) Hospital in Appleton, Wisconsin several days after being admitted on October 7, 2021, for COVID-19. The hospital asked for consent to put Grace on a ventilator at any time. At the time, the federal government was giving hospitals extra reimbursement for COVID-19 diagnosis and certain treatments.

“The staff acted as if Grace was DNR because we refused the ventilator, which has a 90 percent kill rate,” wrote Scott Schara in an email update to supporters. “It is clear to me Grace was written off because we disagreed with the $300,000 ventilator payday.”

Scott Schara filed a wrongful death claim in Wisconsin Superior Court on April 11, 2023, against the hospital, five physicians, two nurses, unnamed medical providers, and the Wisconsin Injured Patients and Families Compensation Fund. After depositions, Schara added a sixth doctor, the supervisor of the intensive care unit, to his complaint.

The case is scheduled for a three-week jury trial later this year. Ascension made two attempts to have the case dismissed and sought a gag order.

Defendants Sought Gag Order

Schara shared the defendants’ brief on the gag order. “(The defendants) seek a Protective Order because of their concern that the plaintiffs will misuse discovery obtained in the case for purposes that are unrelated to the lawsuit itself. They also fear for their personal safety.”

The defendants’ request for nondisclosure claims Schara launched his lawsuit in 2023 to build a social media “crusade” against euthanasia and “medical murder.” The brief notes the extensive promotion of the suit by Schara, including on a website, Our Amazing Grace.

Two defendants said they have been singled out for “more aggressive treatment,” by Schara and his supporters, and their images have been widely disseminated on the Internet. The brief describes Schara’s religiosity and cites as an example a post by Schara stating “It depends on what doors God has been opening up.”

The brief is also critical of Schara’s sources of information, stating it is “self-directed internet research conducted almost entirely through alternative media sources on the internet, as he concededly avoids ‘mainstream media’ information sources of every type.” The brief points out Schara has no medical expertise or training.

Suspicious Timing

Schara claims the defendants sought the gag order ultimately to ban the media from the jury trial scheduled later this year. In his response to their brief, Schara stated that they didn’t seek the gag order until May 20, 2024, days before key witnesses were deposed.

“I had attorneys already flown in from Ohio when they brought up the gag order as ‘normal,’” Schara told Health Care News. “This was a hostage tactic. The alternative was to call their bluff at that time and reschedule. These depositions were of the utmost importance in the discovery process. The route we chose was to spell out we are not agreeing unless the defense brought the issue to the judge, which resulted in hearings.”

On July 29, the judge ruled Schara could share the transcript and audio of the depositions but not the video.

“We felt the law was on our side because there has to be ‘good cause’ for someone to restrict another person’s First Amendment rights,” said Schara. “‘Fear’ is not ‘good cause.’”

Proving Wrongful Death

Schara filed a wrongful death claim, which is more difficult to prove than a claim of medical malpractice. Courts accept medical records as prima facie evidence unless a plaintiff can prove the information in them is false.

Another difficulty has been the defendants’ claims of an “Alt Privilege,” based on another Wisconsin case, that would allow them to avoid answering questions. “Our medical-profession-supported legislators codified the idea into law via State Statute 907.06 in 2013,” wrote Schara in an email update to supporters. “The Statute has to do with Court Appointed Experts. As is typical, the slippery slope has mutated the idea that medical staff cannot testify against their colleagues.”

Schara told Health Care News his experience over the past year has convinced him his lawsuit will not be in vain. “Ultimately, what we are seeking is repentance—stop the behavior. We want to shed light on the evil in both the medical and legal systems. We’ve said publicly many times, we are not taking (any) money awarded. Money is not justice.”

‘Trusted Doctor’ Laws

The Schara case might also raise awareness of proposed state “trusted doctor” laws that would allow patients to have access to physicians not employed by the hospital. Hospitals have limited independent physicians from admitting, treating, or requesting patient records.

“Hospitals receive tax dollars,” says Twila Brase, president and co-founder of Citizens’ Council for Health Freedom. “Patients are taxpayers, and they should have the right to bring in their ‘trusted physician’ as an advocate.”

Brase said the need for trusted doctors increased after the enactment of the Affordable Care Act, which allows kickbacks to hospitals for acting in certain ways. “There is a conflict of interest between the ‘hospitalists,’ the doctors who work for the hospital, and the patient,” said Brase.

There is another death pointing to the need for trusted doctors, says Brase, that of former U.S. Rep. Eddie Bernice Johnson (D-TX), who died in January due to medical negligence, according to her family.

AnneMarie Schieber (amschieber@heartland.org) is the managing editor of Health Care News.

Photo of Grace Schara taken October 7, 2021, courtesy – Scott Schara.