973 N.W.2d 435
Wis.2022Background
- Anne Oros (88, Alzheimer’s) was a resident of Divine Savior’s community-based residential facility (CBRF) on a medical campus that also included a hospital and a nursing home; she suffered six falls at the CBRF between April 2015 and February 2016 and died in May 2016 after a subdural hematoma.
- Oros’s daughter and estate representative, Kim Andruss, sued Divine Savior alleging negligence and wrongful death based on care provided at the CBRF (after amending to remove claims against the nursing home).
- Defendants moved to apply Wisconsin Chapter 655 (medical malpractice statutory scheme), submitting evidence about Divine Savior’s corporate structure and transfers between CBRF, hospital, and nursing home; the circuit court relied on that evidence and dismissed Andruss’s claims as barred by Chapter 655.
- The court of appeals reversed, concluding CBRFs are not covered by Chapter 655 and thus Andruss’s wrongful-death claim as an adult child was not barred.
- The Wisconsin Supreme Court affirmed: it construed the defendants’ motion as one for summary judgment, held CBRFs are not among the providers listed in Wis. Stat. § 655.002, and ruled that Chapter 655 does not bar an adult child’s wrongful-death claim against a CBRF even when the CBRF shares corporate ownership with a hospital or nursing home.
- The Court emphasized proper procedural treatment (summary judgment when outside-pleading evidence is considered) and relied on statutory text and Chapter 50 definitions to distinguish CBRFs from hospitals and nursing homes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper procedural standard for defendants’ motion | Treat as dismissal? Andruss opposed; evidence not in complaint. | Motion sought Chapter 655 protection; circuit court treated it as dispositive. | Motion was properly treated as a motion for summary judgment because the parties submitted matters outside the pleadings. |
| Whether CBRFs are health care providers covered by Chapter 655 | CBRF care is outside Chapter 655; Andruss can sue under common-law negligence. | CBRFs on the same campus and under common ownership as covered providers should be covered. | CBRFs are not listed in §655.002 and are therefore outside Chapter 655. |
| Whether an adult child may bring wrongful-death claim if defendant is a Chapter 655 provider | Andruss: can bring claim because CBRF is not a Chapter 655 provider. | If Chapter 655 applied, adult child claims would be barred by §655.007 and precedent. | Chapter 655 does not apply to the CBRF, so the adult-child wrongful-death claim is not barred. |
| Effect of common corporate ownership/transfer of care between facilities | Andruss: ownership or transfers do not convert CBRF into a Chapter 655 provider. | Defendants: shared ownership and interfacility transfers mean Chapter 655 protections apply across the entity. | Shared ownership/transfers do not extend §655.002 coverage to CBRFs; legislature expressly included nursing homes but not CBRFs. |
Key Cases Cited
- Finnegan ex rel. Skoglind v. Wis. Patients Compensation Fund, 263 Wis. 2d 574 (Wis. 2003) (Chapter 655 is the exclusive procedure/remedy for medical malpractice)
- Czapinski v. St. Francis Hosp., Inc., 236 Wis. 2d 316 (Wis. 2000) (adult children excluded from wrongful-death claimants under §655.007)
- Lornson v. Siddiqui, 302 Wis. 2d 519 (Wis. 2007) (only minor children have derivative claims under §655.007; dismissal standard discussion)
- Kalal v. Cir. Ct. for Dane Cnty., 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation principles; plain-meaning and context)
- DeBruin v. St. Patrick Congregation, 343 Wis. 2d 83 (Wis. 2012) (motion to dismiss tests legal sufficiency; accept well-pleaded facts)
- Racine County v. Oracular Milwaukee, Inc., 323 Wis. 2d 682 (Wis. 2010) (summary judgment standard reviewed de novo)
- Data Key Partners v. Permira Advisers LLC, 356 Wis. 2d 665 (Wis. 2014) (court cannot add facts to a complaint when deciding a motion to dismiss)