ESTATE OF ANNE OROS v. DIVINE SAVIOR HEALTHCARE INC. D/B/A TIVOLI AT DIVINE SAVIOR HEALTHCARE
Case No. 2020AP202
COURT OF APPEALS OF WISCONSIN
December 10, 2020
2021 WI App 8
Opinion Filed: December 10, 2020. Oral Argument: October 23, 2020. †Petition for Review filed.
COURT OF APPEALS OF WISCONSIN PUBLISHED OPINION
Case No.: 2020AP202
†Petition for Review filed.
Complete Title of Case:
ESTATE OF ANNE OROS, PLAINTIFF,
KIM M. ANDRUSS, PLAINTIFF-APPELLANT,
THOMAS E. PRICE M.D., SECRETARY, DEPARTMENT OF HEALTH & HUMAN SERVICES, INVOLUNTARY-PLAINTIFF,
v.
DIVINE SAVIOR HEALTHCARE INC. D/B/A TIVOLI AT DIVINE SAVIOR HEALTHCARE, DEFENDANT-RESPONDENT, †
PROASSURANCE CASUALTY COMPANY, DEFENDANT,
DEAN HEALTH PLAN INC., INTERVENOR.
Opinion Filed: December 10, 2020
Oral Argument: October 23, 2020
JUDGES: Blanchard, Kloppenburg, and Nashold, JJ.
Appellant ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Drew J. De Vinney of Martin Law Office, S.C., Madison.
Respondent ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on the brief of Samuel J. Leib and Brenden M. Leib of Leib Knott Gaynor LLC, Milwaukee.
COURT OF APPEALS DECISION DATED AND FILED
December 10, 2020
Sheila T. Reiff Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
Appeal No. 2020AP202
Cir. Ct. No. 2018CV100
STATE OF WISCONSIN IN COURT OF APPEALS
ESTATE OF ANNE OROS, PLAINTIFF,
KIM M. ANDRUSS, PLAINTIFF-APPELLANT,
THOMAS E. PRICE M.D., SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, INVOLUNTARY-PLAINTIFF,
V.
DIVINE SAVIOR HEALTHCARE INC. D/B/A TIVOLI AT DIVINE SAVIOR HEALTHCARE, DEFENDANT-RESPONDENT,
PROASSURANCE CASUALTY COMPANY, DEFENDANT,
DEAN HEALTH PLAN INC., INTERVENOR.
APPEAL from an order of the circuit court for Columbia County: W. ANDREW VOIGT, Judge. Reversed.
Before Blanchard, Kloppenburg, and Nashold, JJ.
Notes
¶2 Explaining briefly, Chapter 655 governs medical practice claims against health care providers and
¶3 We agree with Andruss that Chapter 655 does not apply here, because the operative complaint is based exclusively on the Corporation‘s operation of the CBRF, which did not constitute activities of a mandatory health care provider under
BACKGROUND
¶4 We begin with a brief overview of the background. In an initial complaint, Andruss based a wrongful death claim on the alleged negligent conduct of the Corporation in operating two separate facilities in Portage, Wisconsin: a CBRF and a nursing home. The circuit court made a preliminary ruling that Andruss lacked standing to pursue this claim under Czapinski and Chapter 655. But the court gave Andruss a chance to amend the allegations to attempt to eliminate this obstacle. In an amended complaint, Andruss narrowed her allegations to involve only the Corporation‘s operation of the CBRF, dropping allegations of negligence by staff of the nursing home. Andruss maintained that this resolved the only potential standing problem under Chapter 655. The circuit court disagreed, concluding that narrowing the scope of the allegations did not solve the Chapter 655 standing problem and on this basis dismissed the wrongful death claim.
¶5 With that as the overview, we briefly address the nature of the parties. There are two plaintiffs. One is Andruss, suing in her individual capacity as Oros‘s adult daughter and pursuing a wrongful death claim based on allegations of negligence. See
The other plaintiff is the Estate, which pursues a survival action based on negligence claims, with Andruss acting in the capacity of personal representative. See
¶6 Turning to the nature of the CBRF, it functioned as one division of the Corporation. The Corporation held the CBRF out to the public under the “doing business as” name Tivoli At Divine Savior Healthcare. Sometimes referred to as an assisted living facility, it met the statutory definition of a CBRF.4 The Corporation had it individually licensed as a CBRF by the Division of Quality
Assurance of the state Department of Health Services, with a maximum capacity of 40.
¶7 Andruss alleged in the initial complaint that Oros resided at separate times in the CBRF and in the nursing home that the Corporation also operated. The Corporation obtained an individual license for the nursing home as an 83-bed skilled care nursing home and, like the CBRF, the nursing home was held out by the Corporation under the “doing business as” name Tivoli At Divine Savior Healthcare. Andruss alleged that Oros fell multiple times and suffered bodily injury while residing in each facility. More specifically, the initial complaint alleged that Oros fell while residing in the CBRF during specific periods in 2015 and early 2016 and also alleged that she fell while residing in the nursing home on different dates in late 2015 and early 2016. It further alleged that Oros fell while residing in the CBRF in February 2016 and died as a result in May 2016.
¶8 The Corporation moved for an order that Chapter 655 applies to Andruss‘s individual wrongful death claim, which would result in dismissal of that claim under Czapinski.
¶9 Expanding on our explanation of Chapter 655,
medical malpractice claims, which includes the establishment and operation of the patients and families compensation fund. See McEvoy v. Group Health Coop. of Eau Claire, 213 Wis. 2d 507, 529-30, 570 N.W.2d 397 (1997). However, Chapter 655 regulation is limited to those “claims made against individual health care providers and entities providing health care services through their employees.” Id. at 528; see also id. at 528-31 (allegations of bad faith against health maintenance organization for denying reimbursement for out-of-network care fell outside the scope of Chapter 655 because these were acts of an insurer, not acts of alleged “medical malpractice” and “the language of ch. 655 consistently expresses the legislative intent that the chapter applies only to medical malpractice claims”).
¶10 The parties agree that the following are the mandatory health care provider categories in Chapter 655 that are most pertinent to Andruss‘s claim against the Corporation:
(h) A hospital, as defined in s. 50.33(2)(a) and (c), that operates in this state.
(i) An entity operated in this state that is an affiliate of a hospital and that provides diagnosis or treatment of, or care for, patients of the hospital.
(j) A nursing home, as defined in s. 50.01(3), whose operations are combined as a single entity with a hospital described in par. (h), whether or not the nursing home operations are physically separate from the hospital operations.
¶11 The Corporation made two alternative arguments in support of dismissal of Andruss‘s claim, both of which it now renews on appeal. The first we call “the conglomerate argument”: the Corporation operated a “conglomerate” of health care activities, each component of which was subject to Chapter 655. This argument depends in part on the fact that, in addition to the CBRF and the nursing home, the Corporation during the pertinent time period also operated a hospital, which was located on the same campus as the CBRF and the nursing home. The Corporation individually licensed the hospital as a 73-bed general acute hospital and gave it the “doing business as” name Divine Savior Hospital. The conglomerate argument is that, even if the CBRF was not itself listed as a Chapter 655 health care provider, it was one part of a “conglomerate” formed with the hospital (a Chapter 655 health care provider under
¶12 We call the Corporation‘s alternative argument “the hybrid-allegations argument.” The argument is that, even if the CBRF was not itself a Chapter 655 health care provider or even part of one, Chapter 655 nevertheless applied because the allegations in the initial complaint against the CBRF and the nursing home were “inseparable,” and the nursing home was a Chapter 655 health care provider under
¶13 In response, Andruss did not dispute that her wrongful death claim must be dismissed under Czapinski if the Corporation is a Chapter 655 health care provider. However, she took the position that, for various reasons, Chapter 655 did not apply to her claim in the initial complaint.
¶14 The circuit court indicated that it was inclined to grant the Corporation‘s motion by ruling that Chapter 655 applied to Andruss‘s claim in the initial complaint, based on the Corporation‘s hybrid-allegations argument. The court expressed the view that, while the CBRF itself was not a Chapter 655 health care provider for purposes of this case, dismissal was nevertheless required because the nursing home was a Chapter 655 health care provider under
¶15 However, at the conclusion of the hearing, the circuit court permitted Andruss to amend the complaint to drop allegations involving the Corporation‘s actions in the nursing home, in case the court might decide that this fixed the problem. Accordingly, Andruss filed an amended complaint dropping all allegations involving the nursing home and retaining allegations involving only the CBRF and moved for reconsideration. Given that the wrongful death claim would now be limited to alleged negligence through the Corporation‘s operation of the CBRF, which Andruss contended did not constitute activities of a Chapter 655 health care provider, she argued that Chapter 655 does not apply to the wrongful death claim. The Corporation opposed the motion for reconsideration based on its conglomerate and hybrid-allegations arguments.
¶16 The circuit court denied Andruss‘s motion for reconsideration, granted the Corporation‘s motion for the application of Chapter 655, and on that basis dismissed Andruss‘s wrongful death claim. The court‘s reasoning appeared to approximate the Corporation‘s conglomerate argument. The court concluded that Andruss lacks “an independent way to make a claim against a non [Chapter] 655 entity.” This is so, the court ruled, because the CBRF functioned as a mere “doing business as” division of the Corporation and therefore the only entity that
Andruss can sue is the Corporation, which the court ruled is subject to Chapter 655. Andruss appeals.
DISCUSSION
¶17 We review the circuit court‘s decision to grant the Corporation‘s motion to dismiss Andruss‘s claims on the ground that she cannot assert a claim upon which relief can be granted. This presents an issue of law that we review de novo. Lornson v. Siddiqui, 2007 WI 92, ¶13, 302 Wis. 2d 519, 735 N.W.2d 55. We assume the truth of the allegations in the amended complaint and all reasonable inferences arising from the allegations. See id. In order to decide whether Andruss has asserted claims upon which relief can be granted we interpret and apply statutory provisions, which also presents an issue of law reviewed de novo. See id., ¶14.
¶18 More specifically, as our supreme court has explained:
“[S]tatutory interpretation ‘begins with the language of the statute.’” State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). If the meaning of the language is plain, our inquiry ordinarily ends. Id. We give statutory language “its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. Context and structure are also important to meaning. Id., ¶46. “Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id. If this inquiry “yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.” Id. (quoted source omitted). If the language is unambiguous, then we need not “consult extrinsic sources of interpretation, such as legislative history.” Id.
Milwaukee Dist. Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶11, 385 Wis. 2d 748, 924 N.W.2d 153 (alteration in original).
¶19 The Corporation conceded at oral argument before us that if Andruss‘s claim were based exclusively on activities of a “freestanding CBRF”—which we take to mean one not affiliated in any manner with a mandatory health care provider as defined in
¶20 Nevertheless, the Corporation contends, the CBRF is subject to Chapter 655 in the context of Andruss‘s wrongful death claim based on the conglomerate argument and the hybrid-allegations argument, which we address in turn.
I. THE CONGLOMERATE ARGUMENT
¶21 As we now explain in more detail, we conclude that the premises of the Corporation‘s conglomerate argument are largely uncontested but that the Corporation leaps from these premises to an untenable conclusion that contradicts the pertinent specific terms of Chapter 655. The Corporation concedes, as it must, that it is liable as a general matter for negligence by staff of its CBRF division. But we conclude that it improperly attempts to insert a “conglomerate of care” definition into the unambiguous pertinent language of
argue that such liability means that the Corporation-as-conglomerate is a health care provider subject to Chapter 655.
¶22 The conglomerate argument starts from the premise that, during the time period alleged in the amended complaint, the Corporation qualified as a Chapter 655 health care provider in two ways: it operated the hospital, which qualified under
¶23 For its next premise, the Corporation points out that the CBRF “cannot be a defendant in this action,” because the CBRF has no legal identity separate from the Corporation that operates it. This is also not disputed. Andruss could not sue the CBRF as a separate entity from the Corporation, because the CBRF was merely one division of the Corporation‘s operations, bearing a “doing
business as” name. See Paul Davis Restoration of S.E. Wis., Inc. v. Paul Davis Restoration of Ne. Wis., 2013 WI 49, ¶¶23-24, 347 Wis. 2d 614, 831 N.W.2d 413 (stating that a legal entity‘s “doing business as” name is “simply another way to refer” to the legal entity (quoted source omitted)).
¶24 From these premises, the Corporation argues, Andruss must be barred from making a wrongful death claim against the Corporation as a hospital-nursing home-CBRF “conglomerate,” because such a “conglomerate” would be a single Chapter 655 health care provider for all health care services provided by any of its three divisions. The Corporation‘s position is that, because it operates a hospital, any health care services that the Corporation provides through any of its facilities or divisions are part of a “conglomerate” of health care services and accordingly are subject to Chapter 655.
¶25 The problem with this argument is that Chapter 655 does not recognize anything resembling a “conglomerate” in any of the
¶26 The exclusive list of mandatory health care providers and activities in
identifies partnerships, corporations, and any other organizations or enterprises.
¶27 The legislature used precise language in identifying Chapter 655 health care providers, showing an evident intent to draw clear lines. As Andruss notes, one notable example of clear line drawing is found in
¶28 Put differently, the exclusive
¶29 At oral argument, the Corporation attempted to suggest that its conglomerate argument is consistent with the definition in
¶30 As Andruss points out, under the logic of the Corporation‘s argument, if a corporation that operates a hospital is always subject to Chapter 655 for all of the corporation‘s health care operations, then there would be no need for the legislature to have included paragraphs (i) or (j) in
¶31 Given our conclusion that the text of
II. THE HYBRID-ALLEGATIONS ARGUMENT
¶32 It is difficult to see what remains of the Corporation‘s hybrid-allegations argument now that Andruss has narrowed the scope of the amended complaint to address alleged liability of only CBRF staff. There appear to be two threads. First, the Corporation apparently means to suggest that, even having purportedly narrowed her allegations, Andruss would not in fact be able to limit her proof at trial to only that which is relevant to liability by the CBRF, or perhaps that a jury could not intelligibly distinguish between evidence regarding CBRF activities and evidence regarding non-CBRF activities for purposes of determining liability by the Corporation for its CBRF operation alone.12 Second, the
Corporation argues, based on statutory interpretation, that “the distinction between nursing home and CBRF is without a difference as it pertains to Chapter 655.” Neither subargument is well developed, but we address each in turn.
¶33 Regarding the suggestion of inextricably intertwined facts, the essence of Andruss‘s amended claim is that the Corporation, acting through the CBRF, was negligent in failing to sufficiently observe Oros and in failing to take steps to move her to a facility with a higher level of care. Andruss disavows an intent to attempt to assign liability to the Corporation based on its hospital or nursing home operations, and contends that she will prove at trial that Oros was “under the sole care” of the CBRF at times that create liability for the Corporation. For example, Andruss explains that her factual position at trial would be that, while Oros resided at different times in both the CBRF and the nursing home, the two facilities operated independently from each other, in “completely different silos,” and that the only negligence alleged will be for the CBRF acts and omissions in regard to providing the “basic care services that are typical of a CBRF.” In the face of these positions by Andruss, the Corporation fails to explain what would prevent Andruss from being able to present evidence at trial that could be intelligibly understood by a jury to focus on potential liability of the Corporation based exclusively on alleged failures in its CBRF operation. The trial has yet to be held, but the Corporation fails to provide a reason to think that the circuit court would not be able to make evidentiary rulings and give instructions that would properly allow a jury to determine liability of the Corporation, if any, based on its CBRF operation alone.
¶34 For its second subargument, the Corporation briefly suggests that the exclusive list of health care providers in
that, for purposes of interpreting
WISCONSIN STAT. § 50.01(1m) provides in pertinent part: “‘Facility’ means a nursing home or community-based residential facility.”WISCONSIN STAT. § 50.01(3) defines “nursing home” as follows:(3) “Nursing home” means a place where 5 or more persons who are not related to the operator or administrator reside, receive care or treatment and, because of their mental or physical condition, require access to 24-hour nursing services, including limited nursing care, intermediate level nursing care and skilled nursing services. “Nursing home” does not include any of the following:
(c) A convent or facility owned or operated exclusively by and for members of a religious order that provides reception and care or treatment of an individual.
(d) A hospice, as defined in s. 50.90(1), that directly provides inpatient care.
(e) A residential care apartment complex.
¶35 The Corporation‘s arguments based on these two features of
¶36 Turning to
¶37 Indeed, under
¶38 Finally, it is not clear to us where they might fit into the Corporation‘s other contentions, but at oral argument the Corporation highlighted the following allegations. According to the Corporation, Oros was “admitted to a
very special unit of the CBRF” for “patients with memory loss and Alzheimer‘s” disease and certified nursing assistants “on the floor were all certified in giving health care services.” These allegations may have potential relevance on the merits of the wrongful death claim. However, whatever the Corporation means to suggest by highlighting these allegations, we do not understand how they support an argument for the application of Chapter 655 here. As with the Corporation‘s conglomerate argument, this seems to amount to a policy disagreement with the legislature regarding how mandatory health care providers should be defined under
CONCLUSION
¶39 For all these reasons, we reverse the order of the circuit court.
By the Court.—Order reversed.
The appeal involves only the issue of whether the Corporation may be sued for its activities as a mandatory participant under
“Community-based residential facility” means a place where 5 or more adults who are not related to the operator or administrator and who do not require care above intermediate level nursing care reside and receive care, treatment or services that are above the level of room and board but that include no more than 3 hours of nursing care per week per resident.Section 50.01(1g) goes on to exclude various entities from the CBRF definition but it is undisputed that no exclusion is pertinent here. See
(d) A partnership comprised of physicians or nurse anesthetists and organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists.
(e) A corporation organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists.
(em) Any organization or enterprise not specified under par. (d) or (e) that is organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists.(continued) (continued)
(f) A cooperative health care association organized under s. 185.981 that operates nonprofit health care plans in this state and that directly provides services through salaried employees in its own facility.
(g) An ambulatory surgery center that operates in this state.
(h) A hospital, as defined in s. 50.33(2)(a) and (c), that operates in this state.
(i) An entity operated in this state that is an affiliate of a hospital and that provides diagnosis or treatment of, or care for, patients of the hospital.
(j) A nursing home, as defined in s. 50.01(3), whose operations are combined as a single entity with a hospital described in par. (h), whether or not the nursing home operations are physically separate from the hospital operations.Sec. 655.002(1)(d)-(j).