SAVANNAH WREN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CALVIN GORDON, JR., AND CALVIN GORDON v. COLUMBIA ST. MARY‘S HOSPITAL MILWAUKEE, INC, JESSICA HOELZLE, M.D., JORDAN HAUCK, D.O. AND INJURED PATIENTS AND FAMILIES COMPENSATION FUND
No. 2024AP126
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I
February 11, 2025
Cir. Ct. No. 2023CV4960
COURT OF APPEALS DECISION DATED AND FILED February 11, 2025
Samuel A. Christensen 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
Before Donald, P.J., Geenen and Colón, JJ.
¶1 COLÓN, J. Savannah Wren, both individually and as the personal representative of the Estate of Calvin Gordon, Jr., and Calvin Gordon (collectively Wren) appeal from an order of the circuit court granting the motion to dismiss filed by Columbia St. Mary’s Hospital Milwaukee, Inc., Jessica Hoelzle, M.D., Jordan Hauck, D.O., and Injured Patients and Families Compensation Fund (collectively Columbia St. Mary’s). The order dismissed Wren’s complaint alleging medical malpractice, wrongful death, and negligent infliction of emotional distress related to the care she received during her pregnancy and the death of Wren’s newborn son, Calvin Gordon, Jr.
¶2 On appeal, Wren argues that the circuit court erroneously granted the motion to dismiss filed by Columbia St. Mary’s. First, she argues that the circuit court erroneously found that
BACKGROUND
¶4 Wren filed a complaint on July 6, 2023, against Columbia St. Mary’s, alleging three counts of medical malpractice and wrongful death and one count of negligent infliction of emotional distress related to the care she received during the end of her pregnancy in May 2020 and the death of her newborn son on May 24, 2020.3
¶5 At the time of Wren’s pregnancy and birth of her son in May 2020, the country was in the midst of the COVID-19 pandemic. In response to the pandemic, Governor Tony Evers declared a state of emergency on March 12, 2020, for the State of Wisconsin in Executive Order No. 72. The legislature also passed several pieces of legislation in response to the pandemic. As relevant here, the legislature passed
¶6 In response to the motion to dismiss, Wren argued that
opportunity to cure her failure to file non-Wisconsin legal authorities, and ordered that the parties return on December 6, 2023, to address the motion to dismiss filed by Columbia St. Mary’s.
¶8 Following the hearing, Wren filed copies of her non-Wisconsin legal authorities. She also filed documentation stating that, on November 14 and 15, 2023, the attorney general, the speaker of the assembly, the president of the senate, and the senate majority leader were served with copies of the summons and complaint for this matter, as well as copies of Columbia St. Mary’s motion to dismiss and related briefing. She further provided a letter from the attorney general’s office dated November 29, 2023, stating:
Please be advised that we have decided not to appear in this matter at this time. The Attorney General may seek to appear if the issue of the constitutionality of a statute or ordinance is raised on appeal. Therefore, we request that the parties inform our office if the matter is appealed and the appeal raises the issue of constitutionality.
¶9 At the hearing on December 6, 2023, the circuit court granted Columbia St. Mary’s motion, and it issued an order dismissing Wren’s complaint. In an oral decision at the hearing, the circuit court found that
provided immunity from suit to Columbia St. Mary’s, and that Wren failed to meet the burden to demonstrate that the statute was unconstitutional.
¶10 Wren now appeals.
DISCUSSION
¶11 On appeal, Wren raises two main arguments. First, Wren argues that the circuit court erroneously found that she was required to name the attorney general, the speaker of the assembly, the president of the senate, and the senate majority leader as parties to fulfill the requirements of
WIS. STAT. § 806.04(11)
¶12 Wren argues that the plain language of
¶13 Wren’s argument presents a question of statutory interpretation. “The interpretation of a statute is a question of law that we review de novo.” E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, ¶16, 335 Wis. 2d 720, 800 N.W.2d 421 (emphasis added). “[S]tatutory interpretation ‘begins with the
language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We give statutory language “its common, ordinary, and accepted meaning.” Id. Additionally, “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., ¶46. “Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.” Id.
¶14 Turning to the statute,
If a statute, ordinance or franchise is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard. If a statute is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the speaker of the assembly, the president of the senate, and the senate majority leader shall also be served with a copy of the proceeding, and the assembly, the senate, and the state legislature are entitled to be heard.
(Emphasis added.)
¶15 We conclude that the plain language of
¶16 Indeed, we have previously interpreted this language from
¶17 The statutory language as applied to the attorney general remains the same today, and therefore, the requirements of
only need to be served with a copy of the proceedings and do not need to be named as parties to satisfy the requirements of
¶18 While the language of
¶19 First, the requirements for a municipality stand in marked contrast to the requirements for the attorney general, speaker of the assembly, president of the senate, and senate majority leader. In reference to a municipality,
¶20 Second, additional language in
to be named as parties. Following the language about making a municipality a party and serving the attorney general, the speaker of the assembly, the president of the senate, and the senate majority leader,
When a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense, the assembly, the senate, and the legislature may intervene … at any time in the action as a matter of right by serving a motion upon the parties as provided in
WIS. STAT. § 801.14 .
(Emphasis added.)
¶21 This additional language found in
¶22 Consequently, we conclude that the plain language of
¶23 We further conclude that the circuit court erroneously found that it lacked subject matter jurisdiction because Wren did not name any of these entities as parties. See Walt v. City of Brookfield, 2015 WI App 3, ¶36 n.7, 359 Wis. 2d 541, 859 N.W.2d 115 (stating that a failure to comply with
II. Constitutionality of WIS. STAT. § 895.4801
¶24 As previously noted, on April 15, 2020, during the COVID-19 pandemic, the legislature passed
provisions,
¶25 Returning to the immunity statute at issue here for health care providers,
Subject to sub. (3), any health care professional, health care provider, or employee, agent, or contractor of a health care professional or health care provider is immune from civil liability for the death of or injury to any individual or any damages caused by actions or omissions that satisfy all of the following:
(a) The action or omission is committed while the professional, provider, employee, agent, or contractor is providing services during the state of emergency declared under [
WIS. STAT. §] 323.10 on March 12, 2020, by executive order 72, or the [sixty] days following the date that the state of emergency terminates.(b) The actions or omissions relate to health services provided or not provided in good faith or are substantially consistent with any of the following:
- Any direction, guidance, recommendation, or other statement made by a federal, state, or local official to address or in response to the emergency or disaster declared as described under par. (a).
- Any guidance published by the department of health services, the federal department of health and human services, or any divisions or agencies of the federal department of health and human services relied upon in good faith.
(c) The actions or omissions do not involve reckless or wanton conduct or intentional misconduct.
¶26 Wren argues that
¶27 We review a challenge to the constitutionality of a statute de novo. Blake v. Jossart, 2016 WI 57, ¶26, 370 Wis. 2d 1, 884 N.W.2d 484. As part of our review, we presume that the statute is constitutional. State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63.
¶28 Challenges to the constitutionality of a statute are generally of two types: (1) facial challenges or (2) “as applied” challenges. Blake, 370 Wis. 2d 1, ¶26. Columbia St. Mary’s asserts that Wren has made a facial challenge to
¶29 Additionally, we must decide whether Wren’s challenge to
review. See Blake, 370 Wis. 2d 1, ¶48. Wren argues that
¶30 To be sure, an individual has long enjoyed the ability to pursue a medical malpractice claim, subject to certain statutes of limitations, statutes of repose, and other legislatively imposed rules, including the oft-litigated noneconomic damages cap. See, e.g., Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶¶44, 53-54, 237 Wis. 2d 99, 613 N.W.2d 849 (addressing the constitutionality of statutes of limitations and statutes of repose for a medical malpractice claim); Mayo v. Wisconsin Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶¶1-2, 383 Wis. 2d 1, 914 N.W.2d 678 (addressing the
constitutionality of a noneconomic damages cap for a medical malpractice claim); see also
¶31 The challenged legislation here, however, is one of immunity and serves a purpose different from those served by a statute of limitations, statute of repose, or damages cap. Unlike a statute of limitations, statute of repose, and other statutory restrictions on medical malpractice claims addressed by prior courts, immunity provides a complete shield from liability for health care professionals and health care providers for an act or omission that would otherwise serve as the basis for a claim. See Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶¶35-36 & n.11, 235 Wis. 2d 409, 611 N.W.2d 693 (recognizing that immunity operates as a shield from tort liability and allows an individual to perform a specific function without threat of liability). Consequently,
¶32 In other words,
fundamental right to pursue a jury trial on what would otherwise have been an actionable claim for an allegation of a negligent act or omission absent
¶33 When challenged legislation implicates either a fundamental right or discriminates against a suspect class, we apply strict scrutiny. State v. Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858 N.W.2d 346. “A law subject to strict scrutiny will be upheld ‘only if narrowly tailored to serve a compelling state interest.” Id. (citation omitted). A law survives strict scrutiny only in rare cases. State v. Baron, 2009 WI 58, ¶48, 318 Wis. 2d 60, 769 N.W.2d 34. In this case, we conclude that, even assuming
¶34 There seems to be no dispute that
¶35 Wren argues that the broad and sweeping nature of this immunity renders
¶36 By contrast, Columbia St. Mary’s argues that the broad nature of the immunity
¶37 While we acknowledge that the health care system faced unique challenges during the COVID-19 pandemic, “[t]here is no pandemic exception … to the fundamental liberties the [c]onstitution safeguards. Indeed, ‘individual rights secured by the [c]onstitution do not disappear during a public health crisis.’”
Wisconsin Legislature v. Palm, 2020 WI 42, ¶53, 391 Wis. 2d 497, 942 N.W.2d 900 (citation omitted). In other words, Wren‘s right to a jury trial on her claims did not disappear as a result of the state of emergency created by the COVID-19 pandemic when the reason for her claims is unrelated to the compelling state interest of responding to COVID-19 that underlies the statute. Simply because Wren was pregnant and had a baby during a pandemic does not make any health care she received related to COVID-19 and the state‘s response to it, and she cannot be denied a right to a jury trial on her claims when her medical care was unrelated to the compelling state interest behind the statute. Therefore, we conclude that the breadth of the immunity provided by
¶38 Columbia St. Mary‘s argues that the statute was narrowly tailored because it was limited in time. We are not persuaded that the statute‘s time limit renders the statute constitutional. See Palm, 391 Wis. 2d 497, ¶27 (rejecting “a specific, limited-in-time scenario” as “questionable and not relevant”). As Wren asserts, at the time the statute was passed, it was unclear how long the pandemic would last and, as a result, unclear how long the statute would ultimately pause the right to a jury trial and provide immunity to the health care industry for negligent acts or omissions that would have ordinarily served as the basis for claims, such as the ones Wren brings here. Thus, the fact that the immunity has since ended with the conclusion of the state of emergency created by the COVID-19 pandemic cannot save the statute.
¶39 Furthermore, even with a time limit, the fact of the matter remains that the statute, for a brief period of time, eliminated a patient‘s ability to seek a
jury trial for any negligent acts or omissions of a health care provider, without requiring that the care provided have a nexus with the stated compelling interest of responding to the COVID-19 pandemic. The fact that the statute was limited in time simply means that the state‘s compelling state interest prompting the statute‘s creation ended with the end of the state of emergency, and it has no bearing on whether the statute was ultimately narrowly tailored to meet the compelling state interest in the first place.
CONCLUSION
¶40 Accordingly, we reverse the circuit court‘s order dismissing Wren‘s complaint, and we remand this matter for further proceedings consistent with this opinion. We conclude that the circuit court erroneously dismissed Wren‘s complaint based on a failure to name the attorney general, the speaker of the assembly, the president of the senate, and the senate majority leader
By the Court.—Order reversed and cause remanded for further proceedings.
Recommended for publication in the official reports.
Notes
Additionally, Wren asserts that “hundreds” of cases have proceeded without naming the attorney general, the speaker of the assembly, the president of the senate, and the senate majority leader as parties. Wren is correct that in some instances these entities were not named as parties; however, we note that a closer inspection reveals that these entities were nonetheless involved in several of the cases cited. We further note that in other instances the State—represented by the attorney general—was a party to the action. See, e.g., Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875 (amicus filed by attorney general); Mayo v. Wisconsin Injured Patients & Fams. Comp. Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678 (amicus filed by the attorney general on behalf of the State); State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17 (attorney general represented the State).