953 N.W.2d 914
Wis. Ct. App.2020Background:
- Kim Andruss sued Divine Savior Healthcare (the Corporation) for wrongful death, alleging negligent care that led to her mother Anne Oros’s death while residing in the Corporation’s community-based residential facility (CBRF).
- The Corporation operates three licensed campus divisions: a hospital, a nursing home, and the CBRF; the CBRF was a "doing business as" division of the Corporation rather than a separate legal entity.
- The Corporation moved to dismiss Andruss’s wrongful-death claim under Wis. Stat. ch. 655, arguing the Corporation was a Chapter 655 health care provider (so Andruss, an adult child, lacked standing under Czapinski).
- Andruss amended her complaint to limit allegations to negligence by CBRF staff only (dropping nursing home allegations); the circuit court nonetheless applied Chapter 655 and dismissed her wrongful-death claim.
- On appeal the Court of Appeals reviewed statutory interpretation de novo and concluded § 655.002(1)’s exclusive list does not include standalone CBRFs, and the Corporation’s "conglomerate" and "hybrid-allegations" arguments fail.
- Holding: the dismissal was reversed — Chapter 655 does not bar Andruss’s wrongful-death claim based solely on CBRF operations of the Corporation.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether § 655.002(1) makes the Corporation a Chapter 655 provider for CBRF conduct because it also operates a hospital and nursing home | Andruss: § 655.002(1) does not list CBRFs; a freestanding CBRF’s activities are outside Chapter 655. | Corporation: As a hospital-nursing home-CBRF "conglomerate," all operations (including the CBRF) fall under Chapter 655. | Rejected conglomerate theory; § 655.002(1) does not include CBRFs; Chapter 655 does not automatically attach to CBRF activity because the corporation also runs a hospital/nursing home. |
| 2. Whether mixed allegations/inseparability of facts make Chapter 655 applicable after amendment to CBRF-only allegations | Andruss: Amendment limits claims to CBRF; she can prove CBRF-only negligence and the court can craft instructions/evidence limits. | Corporation: Initial pleadings intermingled CBRF and nursing-home facts, so Chapter 655 still applies. | Rejected; amendment sufficed and courts can manage evidentiary/instructional limits to try CBRF-only claims. |
| 3. Whether CBRFs are equivalent to nursing homes such that § 655.002(1)(j) covers CBRFs | Andruss: Chapter 50 distinguishes CBRFs and nursing homes by care level; CBRFs are not nursing homes for § 655.002(1). | Corporation: Definitions overlap and legislature could not have intended to exempt CBRFs from Chapter 655. | Rejected; statutory definitions show different levels of care; CBRFs are not subsumed by the nursing-home category for § 655.002(1). |
| 4. Whether DBA status of the CBRF prevents suing the CBRF separately and forces Chapter 655 application | Andruss: DBA status does not change statutory classification; corporation can be sued for CBRF negligence without invoking Chapter 655. | Corporation: CBRF is a DBA division only; corporation (a Chapter 655 provider) is the only defendant, so Chapter 655 applies. | Rejected; corporate structure/DBA does not expand § 655.002(1)’s scope; focus is on the alleged activities. |
Key Cases Cited
- Czapinski v. St. Francis Hospital, Inc., 236 Wis. 2d 316 (Wis. 2000) (adult child wrongful-death claim barred under Chapter 655 when claim involves activities of a listed health care provider)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation principles; begin with plain language)
- McEvoy v. Group Health Coop. of Eau Claire, 213 Wis. 2d 507 (Wis. 1997) (Chapter 655 applies only to malpractice claims against health care providers and their employees)
- Lornson v. Siddiqui, 302 Wis. 2d 519 (Wis. 2007) (standard of review for dismissal and de novo review of legal issues)
- Paul Davis Restoration of S.E. Wis., Inc. v. Paul Davis Restoration of Ne. Wis., 347 Wis. 2d 614 (Wis. 2013) (a "doing business as" name is another way to refer to the legal entity)
- Hacker v. DHSS, 197 Wis. 2d 441 (Wis. 1995) (historical discussion and statutory distinctions between nursing homes and CBRFs)