May 12, 2022 – The state statutory scheme that governs medical malpractice lawsuits does not apply to bar a wrongful death lawsuit filed against a community-based residential facility (CBRF), the Wisconsin Supreme Court has ruled.

In Estate of Anne Oros v. Divine Savior Healthcare Inc., 2020 WI 27 (May 6, 2022), the supreme court unanimously held that because CBRFs are not included in the statutory scheme’s list of providers, a wrongful death lawsuit brought by the adult child of a CBRF patient could proceed.

A Fatal Fall

In January 2015, Anne Oros was admitted to a CBRF operated in Portage, Wis., by Divine Savior Healthcare Inc. (Divine Savior). Oros, who was 88 years old, was suffering from Alzheimer’s disease.

In addition to the CBRF, Divine Savior operates a hospital and a nursing home.

Four times between April and December 2015, Oros fell at the CBRF. After each fall, she was taken to the Divine Savior hospital – the last time for a broken wrist.

After surgery on her wrist in December 2015, Divine Savior moved Oros to the nursing home for rehabilitation. During her stay at the Divine Savior nursing home, Oros fell twice.

After Oros returned to the CBRF in January 2016, she fell for a fifth time but was not taken to the hospital.

A week later Oros fell again and struck her head. She was admitted to the hospital, where she was diagnosed with a subdural hematoma.

Oros died in May 2016 while in hospice.

Medical Malpractice Lawsuit

In March 2018, Oros’ adult daughter, Kim Andruss, sued Divine Savior, its insurer, and Dean Health Plan Inc. in Columbia County Circuit Court for negligence and wrongful death.

Andruss alleged that employees at the Divine Savior nursing home and CBRF 1) failed to implement a proper plan of care for Oros; 2) failed to give Oros adequate and timely treatment; and 3) gave Oros medical care that fell below the professional standard of care.

Different Rule for Different Divisions?

In June 2019, the defendants filed a “Motion for the Application of Chapter 655.” That chapter governs liability against health care providers.

In the motion, the defendants asserted that if the court applied chapter 655, it would have to dismiss Andruss’ wrongful death claim.

During a hearing in August 2019, the trial judge said that while he wasn’t convinced that Ch. 665 applied to lawsuits filed against CBRFs, it was almost “nonsensical” that different rules would apply to lawsuits against “different parts of the same legal entity.”

The circuit court allowed Andruss to file an amended complaint. In the amended complaint, Andruss removed the claims against the Divine Savior nursing home.

During a hearing in November 2019, the trial judge said that different rules for medical malpractice couldn’t apply to different divisions of the same legal entity. In January 2020, the circuit court dismissed the claims Andruss had brought in her personal capacity.

Andruss appealed and the court of appeals reversed the circuit court. The court of appeals held that Ch. 655 doesn’t apply to CBRFs; that Divine Savior also operated a hospital and nursing home was immaterial.

Motion Treated as Summary Judgment Motion

In her opinion for the supreme court, Chief Justice Annette Ziegler explained that the court would analyze the defendant’s “Motion for the Application of Ch. 655” as a motion for summary judgment.

The motion could not be treated as a motion to dismiss for a failure to state a claim, Ziegler noted, because the parties at trial had submitted evidence containing facts that were not referenced in Andruss’ original complaint.

An additional reason for treating the Divine Savior motion as a motion for summary judgment, Chief Justice Ziegler explained, was the fact that it was filed 15 months after Andruss filed her original complaint.

“Procedural posture matters,” Ziegler wrote. “In many cases, it materially impacts the outcome of disputes.”

CBRFs Separate from Hospitals, Nursing Homes

The procedures and remedies established in Chapter 655 are the only ones available to a medical malpractice plaintiff, Chief Justice Ziegler explained.

Under Chapter 655, the adult child of a decedent cannot bring a wrongful death claim alleging medical malpractice against a health care provider.

However, Ziegler pointed out, Chapter 655 applies only to the health care providers listed in section 665.002 and CBRFs are not listed in that subsection.

For the definitions of hospitals and nursing homes, section 665.002 points to chapter 50, which governs medical licensure.

The definition of “hospital” in section 50.33(2)(a) “is tied to specific buildings or structures where medical care is provided,” Chief Justice Ziegler wrote. “The definition does not mention or include CBRFs.”

Furthermore, Ziegler pointed out that nursing homes and CBRFs are defined by different subsections of section 50.01.

“Thus, it is clear … that hospitals, nursing homes, and CBRFs are different operations with different meanings,” Chief Justice Ziegler wrote. “While Chapter 655 covers hospitals and certain nursing homes, it unambiguously does not cover CBRFs.”

Question for Legislature

Divine Savior argued that a plain reading of the statutes should be rejected because it operated a nursing home and hospital in addition to a CBRF.

But Chief Justice Ziegler pointed out that the legislature could have included within Chapter 655 those CBRFs that shared operations and ownership with a hospital but chose not to.

“Simply because Divine Savior owned a hospital and a nursing home, in addition to owning a CBRF, is of no moment,” Ziegler wrote.

Divine Savior pointed out that Oros had received services from its hospital and nursing home.

“But simply receiving services from a nearby health care provider that is covered by Chapter 655 does not in any way imply that other individuals and entities, which also provide care, are covered by Chapter 655,” Chief Justice Ziegler wrote.

Ziegler explained that whether Chapter 655 applies to CBRFs was a question for the legislature.

“To the extent the defendants believe this is unfair or ill-conceived, they may present their complaints to the political branches which write and enact the law,” Chief Justice Ziegler wrote.