Andruss v. Divine Savior Healthcare Inc., 2020AP202

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtANNETTE KINGSLAND ZIEGLER, C.J.
Citation401 Wis.2d 368,973 N.W.2d 435,2022 WI 27
Parties Kim M. ANDRUSS, Plaintiff-Appellant, Thomas E. Price M.D., Secretary, Department of Health & Human Services, Involuntary-Plaintiff, Estate of Anne Oros, Plaintiff, v. DIVINE SAVIOR HEALTHCARE INC. d/b/a Tivoli at Divine Savior Healthcare, Defendant-Respondent-Petitioner, ProAssurance Casualty Company, Defendant, Dean Health Plan Inc., Intervenor.
Docket Number2020AP202
Decision Date06 May 2022

401 Wis.2d 368
973 N.W.2d 435
2022 WI 27

Kim M. ANDRUSS, Plaintiff-Appellant,

Thomas E. Price M.D., Secretary, Department of Health & Human Services, Involuntary-Plaintiff,

Estate of Anne Oros, Plaintiff,
v.
DIVINE SAVIOR HEALTHCARE INC. d/b/a Tivoli at Divine Savior Healthcare, Defendant-Respondent-Petitioner,

ProAssurance Casualty Company, Defendant,

Dean Health Plan Inc., Intervenor.

No. 2020AP202

Supreme Court of Wisconsin.

Oral Argument: February 14, 2022
Opinion Filed: May 6, 2022


For the plaintiff-appellant there was a brief filed by Drew De Vinney and Martin Law Office, S.C. There was an oral argument by Drew De Vinney.

For the defendant-respondent-petitioner there were briefs filed by Samuel Leib. There was an oral argument by Samuel Leib and Leib, Knott, Gaynor, LLC.

An amicus curiae brief was filed on behalf of the Wisconsin Association for Justice by Scott Thompson and Gingras, Thomsen and Wachs LLP.

ZIEGLER, C.J., delivered the majority opinion for a unanimous court.

ANNETTE KINGSLAND ZIEGLER, C.J.

401 Wis.2d 372

¶1 This is a review of a published decision of the court of appeals, Estate of Oros v. Divine Savior Healthcare, Inc., 2021 WI App 8, 395 Wis. 2d 676, 953 N.W.2d 914,

973 N.W.2d 437

reversing an order of the Columbia County circuit court1 that dismissed the plaintiff, Kim Andruss's, wrongful death claim. Andruss brought her claim on behalf of the estate of her mother, Anne Oros, and in Andruss's capacity as Oros's daughter.

¶2 Oros allegedly died as a result of negligence on the part of Divine Savior Healthcare, Inc., d/b/a Trivoli at Divine Savior Healthcare ("Divine Savior"). Divine Savior and ProAssurance Casualty Company, Divine Savior's insurer, (collectively, "the defendants") argue that Andruss cannot bring a wrongful death claim as an adult child of Oros. According to the defendants, the liability protections given to certain healthcare providers under Chapter 655 bar Andruss's claim.

¶3 Divine Savior owns and operates a medical campus with a hospital, nursing home, and a

401 Wis.2d 373

community-based residential facility ("CBRF"). When Oros received the injuries at issue in this case, she was a resident of Divine Savior's CBRF. The basis of Andruss's claim is alleged negligence on the part of the CBRF, and CBRFs, even ones that share common ownership with hospitals and nursing homes, fall outside the liability protections of Wis. Stat. Chapter 655 (2017-18).2 Dismissal under Chapter 655 of Andruss's wrongful death claim is not warranted. The court of appeals is affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 Oros was admitted as a resident of Divine Savior's CBRF in Portage, Wisconsin, in January 2015. At that time, Oros was 88 years old and was diagnosed as having Alzheimer's disease. On the same medical campus as the CBRF, Divine Savior owned and operated a hospital and a nursing home. At various points during the time period at issue, Oros received treatment at Divine Savior's hospital and nursing home.

¶5 Between April and December 2015, Oros had four falls at Divine Savior's CBRF. In April 2015, Oros fell and struck her head at the CBRF. She was taken to Divine Savior's hospital for observation and treatment. In June 2015, Oros fell again and hit her head at the CBRF. She was again taken to Divine Savior's hospital. In October 2015, Oros slipped and fell at the CBRF, and she was taken to Divine Savior's hospital. Andruss asserts that Divine Savior never informed Oros's primary care physician of these falls, nor did they consult with administrators, medical professionals, or Oros's family on the proper level of care Oros needed.

401 Wis.2d 374

¶6 In December 2015, Oros fell again at the CBRF and fractured her wrist. She was taken to Divine Savior's hospital for surgery, and she was discharged over a week later to undergo rehabilitation at Divine Savior's nursing home. While at the nursing home, she fell twice. Also while at the nursing home, she was hospitalized for unrelated medical ailments.

¶7 In January 2016, Oros was transferred from the nursing home to the CBRF. Within a few days, in February 2016, Oros fell for a fifth time at the CBRF. No injuries were reported, and Oros was not taken to the hospital. Less than a week after this incident, Oros fell for a sixth time and hit her head. After being transported to the hospital, she was diagnosed with a subdural hematoma. In May 2016, Oros passed away while in hospice. At the time of each of Oros's six falls at the CBRF, she was not an admitted

973 N.W.2d 438

patient at either Divine Savior's hospital or its nursing home.

¶8 In March 2018, Andruss, on behalf of Oros's estate and as the adult child of Oros, brought negligence and wrongful death claims against the defendants in Columbia County circuit court. Andruss alleged that Divine Savior's employees at the nursing home and the CBRF failed to implement a proper plan of care, failed to provide adequate and timely treatment, failed to sufficiently monitor Oros, and provided medical care falling below the professional standard of care. Defendants filed an answer in May 2018.

¶9 Over a year passed, and in June 2019, the defendants filed a "Motion for the Application of Wisconsin Chapter 655." In the motion, the defendants asserted that "the application of Chapter 655 [to] this action ... would result in the dismissal of [Andruss's] wrongful death claim." After briefing, the circuit court held a hearing on the motion in August 2019. The

401 Wis.2d 375

circuit court indicated that it believed Chapter 655 applied to Andruss's claims against Divine Savior's nursing home. While the circuit court was "not convinced" that Chapter 655 applied to CBRFs generally, the circuit court reasoned that it "borders almost on nonsensical that different rules would apply to different parts of the same legal entity." Thus, the circuit court indicated that Chapter 655 applied to Divine Savior's CBRF as well as its nursing home. Upon a request from Andruss, the circuit court stated Andruss could file a motion to amend her complaint. The circuit court explained that the amendments could change its analysis on the defendants’ motion. No order or judgment was entered after the August 2019 hearing.

¶10 In September 2019, Andruss filed a document entitled, "Motions for Leave to Amend the Complaint and for Reconsideration." Andruss attached an amended complaint that removed all claims brought against Divine Savior's nursing home. She argued that the wrongful death claim remaining against the CBRF was not barred under Chapter 655, and the circuit court should "reconsider" the analysis it provided at the August 2019 hearing.

¶11 In November 2019, the circuit court held a hearing on Andruss's motion to amend and for reconsideration. It noted its prior analysis that CBRFs were not "necessarily or obviously subject to [Chapter] 655," but reiterated that different divisions of the same entity cannot have different rules of medical malpractice liability. According to the circuit court, Chapter 655 must apply to the entire Divine Savior entity, including its CBRF. In January 2020, the circuit court entered an order granting the defendants’ Motion for the Application of Chapter 655, denying Andruss's

401 Wis.2d 376

motion for reconsideration, and dismissing the claims Andruss brought in her individual capacity.

¶12 Andruss appealed the circuit court's decision, and the court of appeals reversed. Estate of Oros, 395 Wis. 2d 676, ¶39, 953 N.W.2d 914. The court of appeals construed the defendants’ Motion for the Application of Chapter 655 as a motion to dismiss for failure to state a claim. Id., ¶17. From there, the court of appeals reasoned that CBRFs were not covered by Chapter 655. Id., ¶19. Because Andruss brought her wrongful death claim against Divine Savior for its operation of a CBRF, the claim was not subject to Chapter 655, and dismissal was not warranted. Id., ¶¶21-38. According to the court of appeals, the result did not change simply because Divine Savior operated both a hospital and nursing home, nor did it change because Oros received care at both the nursing home and hospital prior to her death. Id.

973 N.W.2d 439

¶13 The defendants filed a petition for review with this court, and in April 2021, the petition was granted.

II. STANDARD OF REVIEW

¶14 The standard of review in this case requires clarification. The focus of this appeal is whether the circuit court properly granted the defendants’ Motion for the Application of Chapter 655 and whether Andruss's wrongful death claim must be dismissed. The defendants argue that because Divine Savior owns and operates a hospital and nursing home at which Oros received care, and those facilities, according to the defendants, are covered by Chapter 655, Andruss cannot proceed against Divine Savior's CBRF. But we are

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3 practice notes
  • State ex rel. Kaul v. Prehn, 2021AP1673
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022
    ...exclusion of others." State v. Dorsey, 2018 WI 10, ¶29, 379 Wis.2d 386, 906 N.W.2d 158; see Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, ¶30, 401 Wis.2d 368, 973 N.W.2d 435 (explaining a statute that listed individuals and entities subject to a healthcare Chapter of the Wiscon......
  • State ex rel. Kaul v. Prehn, 2021AP1673
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022
    ...of others." State v. Dorsey, 2018 WI 10, ¶29, 379 Wis. 2d 386, 906 N.W.2d 158 ; see Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, ¶30, 401 Wis. 2d 368, 973 N.W.2d 435 (explaining a statute that listed individuals and entities subject to a healthcare Chapter of the Wisconsin cod......
  • Murphy v. Columbus McKinnon Corp., 2020AP1124
    • United States
    • United States State Supreme Court of Wisconsin
    • December 28, 2022
    ...¶14 This case presents a question of statutory interpretation, which we independently decide. Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, ¶24, 401 Wis.2d 368, 973 N.W.2d 435. ¶15 CMC asks us to reinstate the circuit court's grant of summary judgment in its favor. We review summary......
3 cases
  • State ex rel. Kaul v. Prehn, 2021AP1673
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022
    ...exclusion of others." State v. Dorsey, 2018 WI 10, ¶29, 379 Wis.2d 386, 906 N.W.2d 158; see Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, ¶30, 401 Wis.2d 368, 973 N.W.2d 435 (explaining a statute that listed individuals and entities subject to a healthcare Chapter of the Wiscon......
  • State ex rel. Kaul v. Prehn, 2021AP1673
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022
    ...of others." State v. Dorsey, 2018 WI 10, ¶29, 379 Wis. 2d 386, 906 N.W.2d 158 ; see Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, ¶30, 401 Wis. 2d 368, 973 N.W.2d 435 (explaining a statute that listed individuals and entities subject to a healthcare Chapter of the Wisconsin cod......
  • Murphy v. Columbus McKinnon Corp., 2020AP1124
    • United States
    • United States State Supreme Court of Wisconsin
    • December 28, 2022
    ...¶14 This case presents a question of statutory interpretation, which we independently decide. Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, ¶24, 401 Wis.2d 368, 973 N.W.2d 435. ¶15 CMC asks us to reinstate the circuit court's grant of summary judgment in its favor. We review summary......

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