Oros v. Divine Savior Healthcare Inc.

• Decision Date: 10 December 2020
• Docket Number: Appeal No. 2020AP202
• Citation: 2021 WI App 8,395 Wis.2d 676,953 N.W.2d 914
• Parties: 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.
• Court: Wisconsin Court of Appeals

395 Wis.2d 676

953 N.W.2d 914

2021 WI App 8

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 No. 2020AP202

Court of Appeals of Wisconsin.

Oral Argument October 23, 2020

Opinion Filed December 10, 2020

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.

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.

Before Blanchard, Kloppenburg, and Nashold, JJ.

BLANCHARD, J.

¶1 Kim Andruss appeals a circuit court order dismissing her wrongful death claim against Divine Savior Healthcare, Inc. (the Corporation). Andruss alleges that her mother, Anne Oros, suffered fatal injuries as a result of negligence by staff of a community-based residential facility (the CBRF) operated by the Corporation when Oros resided there. The circuit court dismissed Andruss's claim against the Corporation on the ground that the CBRF was one of three facilities that the Corporation operated on the same campus—the other two being a hospital and a nursing home—and that this meant that the Corporation was a health care provider as defined in WIS. STAT . § 655.002(1) (2017-18).¹

¶2 Explaining briefly, Chapter 655 governs medical practice claims against health care providers and WIS. STAT. § 655.002 consists of an exclusive list of persons and entities whose activities as health care providers are subject to medical malpractice law. See § 655.002(1) (exclusive list of mandatory Chapter 655 health care providers); § 655.002(2) (exclusive list of "optional" participants).² Further, there is no dispute that Andruss, as an adult child of the deceased, cannot pursue a wrongful death claim based on activities of a health care provider identified in § 655.002(1). See Czapinski v. St. Francis Hospital, Inc. , 2000 WI 80, ¶2, 236 Wis. 2d 316, 613 N.W.2d 120 (the claimants entitled to bring a wrongful death suit for medical malpractice under Chapter 655 are only those enumerated in WIS. STAT. § 655.007, which does not include adult children of the deceased). Under the circuit court's interpretation of § 655.002(1), the Corporation is a mandatory Chapter 655 health care provider. On that basis, the court determined that Andruss lacks standing to bring the wrongful death action.

¶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 WIS. STAT. § 655.002(1). It is immaterial that separate hospital or nursing home operations of the Corporation constituted Chapter 655 health care provider activities. Accordingly, we reverse the order dismissing Andruss's wrongful death claim.

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 WIS. STAT. §§ 895.03, 895.04(2). This statutory cause of action would entitle Andruss to seek damages to compensate her for any damages that she personally suffered as a result of Oros's death. See § 895.04(4).³ 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 WIS. STAT. § 895.01(1)(am) (authorizing statutory survival actions "[i]n addition to the causes of action that survive at common law"). Liability on these negligence claims would entitle the Estate to seek to recover Oros's damages during Oros's life that allegedly resulted from negligence. See § 895.01(1)(am)7. (survival actions include causes of action for "other damage to the person"). Bearing those distinctions in mind, the Chapter 655 standing issue here involves only Andruss's wrongful death claim, not the Estate's survival claims. Separately, parties to this suit include an insurer of the Corporation and the then-secretary of the federal Department of Health and Human Services, but no party suggests that there are separate issues in this appeal that involve either of these parties.

¶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, WIS. STAT. § 655.002(1) contains an exclusive list of persons and entities defined to be mandatory Chapter 655 health care providers, with definitions that sometimes include reference to particular activities or relationships among persons or entities.⁵ This aims to fulfill the purpose of Chapter 655 to regulate the field of 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, 570 N.W.2d 397 ; see also id . at 528-31, 570 N.W.2d 397 (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.

WIS. STAT. § 655.002(1)(h), (i), (j).⁶

¶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 WIS. STAT. § 655.002(1)(h) ) and the nursing home, "whose operations are combined as a single entity with a hospital" (a Chapter 655 health care provider under § 655.002(1)(j) ). As a...