2025 WI App 22
Wis. Ct. App.2025Background
- Savannah Wren, both individually and as personal representative of the Estate of Calvin Gordon, Jr., filed a medical malpractice, wrongful death, and negligent infliction of emotional distress suit against Columbia St. Mary’s Hospital and related parties alleging negligent care during her pregnancy and her newborn's death in May 2020.
- The alleged negligence occurred during the COVID-19 pandemic, amid a Wisconsin state of emergency and a new statute (Wis. Stat. § 895.4801) granting broad civil immunity to healthcare providers for acts/omissions during the pandemic.
- The defendants moved to dismiss, citing immunity under § 895.4801 and Wren's alleged failure to comply with notice procedures in Wis. Stat. § 806.04(11) for constitutional challenges.
- The circuit court dismissed Wren's case, holding service was legally insufficient and the defendants were immune.
- Wren appealed, arguing that she properly served the required state officials (but need not name them as parties) and that § 895.4801 is unconstitutional as applied to her case.
Issues
| Issue | Plaintiff’s Argument | Defendants’ Argument | Held |
|---|---|---|---|
| Whether § 806.04(11) required naming AG/legislative leaders as parties | Wren argued service, not naming as parties, is required | Defendants argued naming as parties was necessary for subject matter jurisdiction | Court held only service is required, not party status |
| Whether § 895.4801 provides constitutional immunity | Wren claimed statute unconstitutionally eliminated her right to jury trial on her claims | Defendants argued broad immunity was necessary for pandemic response | Court held the statute is not narrowly tailored, fails strict scrutiny, and is unconstitutional |
| Level of constitutional scrutiny for immunity statute | Strict scrutiny because statute eliminates fundamental jury trial rights | Strict scrutiny acknowledged, based on parties’ concessions | Applied strict scrutiny |
| Remedy | Wren sought reversal of dismissal and remand | Defendants sought dismissal to stand | Court reversed and remanded |
Key Cases Cited
- Town of Walworth v. Village of Fontana-on-Geneva Lake, 85 Wis. 2d 432 (Wis. Ct. App. 1978) (statutory service on attorney general does not require party status in constitutional challenges)
- Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 237 Wis. 2d 99 (Wis. 2000) (upholding statutes of limitations and repose in medical malpractice claims)
- Mayo v. Wisconsin Injured Patients & Fams. Comp. Fund, 383 Wis. 2d 1 (Wis. 2018) (addressing noneconomic damages caps in medical malpractice)
- Willow Creek Ranch, L.L.C. v. Town of Shelby, 235 Wis. 2d 409 (Wis. 2000) (distinguishing immunity from other liability limitations)
- State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491 (Wis. 1978) (strict scrutiny in access-to-courts context where right to jury trial not preserved)
- Wisconsin Legislature v. Palm, 391 Wis. 2d 497 (Wis. 2020) (constitutional rights remain during public health emergencies)