Estate of Anne Oros v. Divine Savior Healthcare Inc. ( 2022 )

2022 WI 27SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP202
COMPLETE TITLE: 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.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 676,953 N.W.2d 914PDC No: 2021 WI App 8 - Published
OPINION FILED: May 6, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 14, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Columbia
JUDGE: Andrew W. Voigt
JUSTICES:
ZIEGLER, C.J. delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2022 WI 27NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP202
(L.C. No. 2018CV100)
STATE OF WISCONSIN : IN SUPREME COURT
Kim M. Andruss,
Plaintiff-Appellant,
Thomas E. Price M.D. , Secretary, Department of
Health & Human Services,
Involuntary-Plaintiff,
Estate of Anne Oros,
FILED
Plaintiff,
v.
MAY 6, 2022
Divine Savior Healthcare Inc. d/b/a Tivoli at
Divine Savior Healthcare, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner,
ProAssurance Casualty Company,
Defendant,
Dean Health Plan Inc.,
Intervenor.
ZIEGLER, C.J., delivered the majority opinion for a unanimous
court.
REVIEW of a decision of the Court of Appeals. Affirmed.
No. 2020AP202
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. 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, 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 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
1 The Honorable W. Andrew Voigt presided.
2All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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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.
¶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.
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¶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 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
circuit court indicated that it believed Chapter 655 applied to
Andruss's claims against Divine Savior's nursing home. While
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No. 2020AP202
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
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No. 2020AP202
Chapter 655, denying Andruss's 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. 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.
¶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
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No. 2020AP202
against Divine Savior's CBRF. But we are aware of no authority
under Wisconsin civil procedure, statutes, or caselaw
recognizing a "Motion for the Application of Chapter 655," or
identifying it as an independent procedural device for dismissal
of legal claims. See, e.g., Lornson v. Siddiqui, 2007 WI 92,
302 Wis. 2d 519, 735 N.W.2d 55 (affirming dismissal of claims
barred by Chapter 655 under the standards for motions to dismiss
for failure to state a claim). The court of appeals construed
the defendants' motion as a motion to dismiss for failure to
state a claim. Estate of Oros, 395 Wis. 2d 676, ¶17. On
appeal, both Andruss and the defendants analyze the motion under
the framework of a motion to dismiss. Here, the parties
submitted evidence outside the record, and the motion cannot be
reviewed as a motion to dismiss.
¶15 A motion to dismiss for failure to state a claim
"tests the legal sufficiency of the complaint." DeBruin v. St.
Patrick Congregation, 2012 WI 94, ¶11, 343 Wis. 2d 83, 816
N.W.2d 878. When reviewing a motion to dismiss, "we accept as
true all facts well-pleaded in the complaint and the reasonable
inferences therefrom." Id. However, if "matters outside of the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment." Wis.
Stat. § 802.06(2)(b). In such instances, "all parties shall be
given reasonable opportunity to present all material made
pertinent to [a motion for summary judgment.]" Id.¶16 Before the circuit court, the defendants submitted
substantial record evidence that was neither mentioned nor
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No. 2020AP202
included in Andruss's original complaint or her amended
complaint. For instance, the defendants submitted affidavits
that described in detail Divine Savior's corporate structure,
the nature of Oros's falls, how she was transported to Divine
Savior's hospital on several occasions, and how she was moved
between Divine Savior's CBRF, nursing home, and hospital on the
same campus. Those facts were neither stated nor referenced in
either Andruss's complaint or her amended complaint. The
original complaint alleged injuries and health care services
provided only at the nursing home and CBRF, while the amended
complaint focused solely on injuries and services at the CBRF.
Neither the complaint nor the amended complaint alleged that
Divine Savior owned a hospital.
¶17 In response to the defendants' motion, Andruss cited
to her own record evidence. She described how Divine Savior
separated the nursing home and CBRF into different divisions,
and the divisions had separate patients, admissions, and care
plans. Andruss also explained the timeline of her mother's
falls and her movements to different facilities on Divine
Savior's campus. This information was also not included in
either the complaint or the amended complaint.
¶18 The circuit court received this evidence and
explicitly relied on it in its decision. A central aspect of
the circuit court's reasoning provided in August, 2019 was that,
according to the circuit court, it would be "nonsensical" to
apply "different rules" to "the same legal entity." The circuit
court reiterated this same reasoning when it reviewed Andruss's
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No. 2020AP202
motion for reconsideration in November 2019. At that time, the
circuit court noted that Oros "was back and forth among these
entities," and questioned "how on earth do you parse" through
the shifting service providers during a jury trial.
¶19 The defendants' Motion for the Application of Chapter
655 is best construed as a motion for summary judgment. The
motion relied on facts not included in Andruss's complaints. It
was filed over a year after the case began and over a year after
the defendants answered Andruss's complaint. The circuit court
did not exclude the record evidence cited by the defendants, but
Andruss had the opportunity to present evidence in opposition to
the defendants' motion.3 See Wis. Stat. § 802.06(2)(b).
¶20 To facilitate effective and efficient appellate
review, circuit courts must properly identify the motion that is
before them and structure their analysis under the correct,
applicable standard. The defendants' motion presented itself as
a motion for summary judgment, and the circuit court should have
recognized it as such when it granted the motion and explained
its reasoning. See, e.g., Gauger v. Ludwig, 56 Wis. 2d 492,
496-97, 202 N.W.2d 233 (1972) (explaining that a motion to
3 In addition, the motion cannot be construed as a motion
for judgment on the pleadings, which motions test the
sufficiency of the complaint with reference to any responsive
pleading. See Southport Commons, LLC v. DOT, 2021 WI 52, ¶42,
397 Wis. 2d 362, 960 N.W.2d 17 (explaining the standard of
review for motions for judgment on the pleadings). "If, on a
motion for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment . . . ."
Wis. Stat. § 802.06(3).
9
No. 2020AP202
strike can be construed as a motion to dismiss in order to "put
substance above form"); Schwab v. Timmons, 224 Wis. 2d 27, 34-
35, 589 N.W.2d 1 (1999) (describing how a circuit court properly
converted a motion to dismiss into a motion for summary
judgment, despite labels given to the motion by parties).
Alternatively, the circuit court should have directed the
defendants to clarify under which type of dispositive motion
they intended to proceed.
¶21 The parties on appeal and the court of appeals
construed the defendants' motion as a motion to dismiss. This
was incompatible with the nature of the motion and the circuit
court's analysis. In fact, the court of appeals should have
recognized this discrepancy when it analyzed Divine Savior's
corporate structure, its ownership of a hospital, and the
intertwining nature of care provided to Oros between Divine
Savior's various facilities. Estate of Oros, 395 Wis. 2d 676,
¶¶21-38. A facial view of Andruss's complaints would have
revealed that none of those facts were properly alleged. See
Jamerson v. DCF, 2013 WI 7, ¶¶64-65, 345 Wis. 2d 205, 824
N.W.2d 822 (noting that in the proceedings below, an
administrative law judge and the litigants labeled a motion in a
manner that was not legally recognized and analyzing the motion
on appeal under the proper standard).
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No. 2020AP202
¶22 Procedural posture matters. In many cases, it
materially impacts the outcome of disputes.4 When analyzing the
defendants' Motion for the Application of Chapter 655, the
circuit court and the court of appeals should have construed the
motion as a motion for summary judgment, and we shall do so
here.
¶23 "Whether the circuit court properly granted summary
judgment is a question of law that this court reviews de novo."
Racine County v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24, 323
Wis. 2d 682, 781 N.W.2d 88 (quotations omitted). Summary
judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Wis. Stat. § 802.08(2). A party
opposing summary judgment "'may not rest upon the mere
allegations or denials of the pleadings' but instead, through
affidavits or otherwise, 'must set forth specific facts showing
4 The instant dispute would be easily resolved if analyzed
as a motion to dismiss. Material facts supporting the CBRF's
corporate ownership and the intermixing of care at Divine
Savior's facilities, laying at the heart of the defendants'
motion and the circuit court's analysis, were not alleged in the
amended complaint. See Data Key Partners v. Permira Advisers
LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 ("[A]
court cannot add facts in the process of construing a complaint"
for a motion to dismiss); Wis. Stat. § 802.06(2)(b) (requiring
conversion to a motion for summary judgment when relying on
"matters outside of the pleadings").
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that there is a genuine issue for trial.'" Oracular Milwaukee,
323 Wis. 2d 682, ¶26 (quoting Wis. Stat. § 802.08(3) (2007-08)).
¶24 This case also presents questions of statutory
interpretation. "Interpretation of a statute is a question of
law that we review de novo, although we benefit from the
analyses of the circuit court and the court of appeals." Estate
of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903
N.W.2d 759. "[S]tatutory interpretation begins with the
language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry. Statutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." State ex rel. Kalal
v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (citations and quotations omitted). In addition,
"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.
III. ANALYSIS
¶25 The defendants argue that Andruss's wrongful death
claim must be dismissed because it is brought against Divine
Savior's CBRF. It is undisputed that Divine Savior owns and
operates a hospital and a nursing home at which Oros received
treatment prior to her death. Oros was transferred between the
CBRF, the hospital, and the nursing home at various points to
receive care for Oros's falls between April 2015, when Oros was
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No. 2020AP202
first admitted into Divine Savior's CBRF, and February 2016,
when Oros fell and was diagnosed with a subdural hematoma.
¶26 When applicable, "Chapter 655 constitutes the
exclusive procedure and remedy for medical malpractice in
Wisconsin." Finnegan ex rel. Skoglind v. Wis. Patients
Compensation Fund, 2003 WI 98, ¶22, 263 Wis. 2d 574, 666
N.W.2d 797. However, Chapter 655 applies only to a specifically
defined list of health care providers. Wisconsin Stat.
§ 655.001(8) defines "health care provider" as "a person to whom
this chapter applies under s. 655.002(1) or a person who elects
to be subject to this chapter under s. 655.002(2)." Wisconsin
Stat. § 655.002 lists service providers that "chapter [655]
applies to," as well as a list of providers that "may
elect . . . to be subject to [the] chapter."
¶27 An adult child cannot bring a wrongful death claim
alleging medical malpractice on the part of a health care
provider covered by Chapter 655. "The classification of
claimants entitled to bring a wrongful death suit for medical
malpractice [covered by Chapter 655] is limited to those
enumerated in Wis. Stat. § 655.007." Czapinski v. St. Francis
Hosp., Inc., 2000 WI 80, ¶2, 236 Wis. 2d 316, 613 N.W.2d 120.
Wisconsin Stat. § 655.007 states, "any patient or the patient's
representative having a claim or any spouse, parent, minor
sibling or child of the patient having a derivative claim for
injury or death on account of malpractice is subject
to . . . chapter [655]." In light of common law limitations of
the right of adult children "to recover for loss of society and
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No. 2020AP202
companionship in medical malpractice cases," we have read
§ 655.007 as excluding adult children from the list of available
wrongful death claimants in Chapter 655 cases. Czapinski, 236
Wis. 2d 316, ¶¶23-25 (rejecting a request to "broaden the
classification of claimants entitled to recover in such suits to
include adult children"); Lornson, 302 Wis. 2d 519, ¶20 ("Only
minor children . . . have derivative claims under Wis. Stat.
§ 655.007." (Emphasis in original.)).
¶28 Andruss alleges that Divine Savior was negligent in
the care and treatment of Oros. As a result of Divine Savior's
negligence——specifically, a failure to develop an appropriate
plan of care and a failure to provide Oros adequate oversight——
Andruss alleges that she experienced injuries such as the loss
of society and companionship. Andruss is the adult child of
Oros, and she can bring this wrongful death claim only if Divine
Savior falls outside the coverage of Chapter 655. Czapinski,
236 Wis. 2d 316, ¶¶23-25; Wis. Stat. § 655.007. Divine Savior
is covered by Chapter 655 only if it was a health care provider,
as defined by Wis. Stat. § 655.002.
¶29 Andruss's wrongful death claim is not against a health
care provider covered by Chapter 655. The claim is based on
alleged negligence on the part of Divine Savior's CBRF, the care
plan and treatment provided to Oros at the CBRF, and the
injuries Oros experienced while residing at the CBRF. The
wrongful death at issue was allegedly a result of Oros's fall at
Divine Savior's CBRF in February 2016, after five prior falls at
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No. 2020AP202
the same CBRF. Oros does not seek to recover for negligence at
Divine Savior's hospital or its nursing home.
¶30 CBRFs are not included in the list of health care
providers under Wis. Stat. § 655.002. Reading the plain text of
§ 655.002, the list contains "hospitals," hospital affiliates
which "provide[] diagnosis or treatment of, or care for,
patients of [a] hospital," and "nursing home[s] . . . whose
operations are combined as a single entity with a hospital,"
among other service providers. § 655.002(h), (i), (j). The
legislature expressly identified individuals and service
providers covered by Chapter 655 and did not include CBRFs on
the list. This is a textbook example of the canon expressio
unius est exclusio alterius, "[t]he expression of one thing
implies the exclusion of others." State v. Dorsey, 2018 WI 10,
¶29, 379 Wis. 2d 386, 906 N.W.2d 158; Antonin Scalia & Brian A.
Garner, Reading Law: The Interpretation of Legal Texts 107-11
(2012); see, e.g., FAS, LLC v. Town of Bass Lake, 2007 WI 73,
¶27, 301 Wis. 2d 321, 733 N.W.2d 287 (explaining that an
ordinance explicitly excluding "public roadways" from lot area
computation made no mention of navigable streams, thus navigable
streams were not excluded from the computation). Section
655.002 unambiguously places the CBRF services forming the basis
of Andruss's lawsuit outside the scope of Chapter 655.
¶31 "[S]tatutory language is interpreted in the context in
which it is used," and context supports our reading of Wis.
Stat. § 655.002. Kalal, 271 Wis. 2d 633, ¶46. To define
nursing homes and hospitals, § 655.002 cites to definitions in
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Chapter 50 on medical licensure. Chapter 655 uses the
definition of hospital included in Wis. Stat. § 50.33(2)(a) and
(c):
(2)(a) "Hospital" means any building, structure,
institution or place devoted primarily to the
maintenance and operation of facilities for the
diagnosis, treatment of and medical or surgical care
for 3 or more nonrelated individuals hereinafter
designated patients, suffering from illness, disease,
injury or disability, whether physical or mental, and
including pregnancy and regularly making available at
least clinical laboratory services, and diagnostic X-
ray services and treatment facilities for surgery, or
obstetrical care, or other definitive medical
treatment.
. . .
(c) "Hospital" includes "special hospitals" or
those hospital facilities that provide a limited type
of medical or surgical care, including orthopedic
hospitals, children's hospitals, critical access
hospitals, mental hospitals, psychiatric hospitals or
maternity hospitals.
¶32 The coverage of a hospital under Chapter 655 is tied
to specific buildings or structures where medical care is
provided.5 The definition does not mention or include CBRFs.
Furthermore, hospitals are subject to their own regulations and
Notably, in adopting only subsections (a) and (c) of Wis.
5
Stat. § 50.33(2) as the definition of hospitals, Chapter 655
excluded subsection (b), which would have expanded the
definition beyond the more narrow physical scope in subsections
(a) and (c). Section 50.33(2)(b) includes all "related
facilities . . . operated in connection with hospitals."
§ 50.33(2)(b). The legislature deliberately chose the limited
definition of hospitals included in Wis. Stat. § 655.002. See
State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44,
271 Wis. 2d 633, 681 N.W.2d 110 (explaining that "the
legislature's intent is expressed in the statutory language").
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government oversight under Chapter 50, separate from that of
CBRFs. See, e.g., Wis. Stat. § 50.36 (describing rules
governing hospitals).
¶33 Wisconsin Stat. § 50.01, where nursing homes are
defined, also provides a definition of CBRFs, and the
definitions of nursing homes and CBRFs are distinct. See Hecker
v. DHHS, 197 Wis. 2d 441, 458, 541 N.W.2d 766 (1995)
(explaining, when interpreting a prior version of § 50.01, that
the removal of "intermediate care facilit[ies] . . . created a
two-tiered scheme: facilities were now either nursing homes or
CBRFs"). A 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 . . . ." § 50.01(3). By contrast,
a CBRF
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.
§ 50.01(1g). Therefore, while nursing homes require more
intensive oversight and medical care, "24-hour nursing
services," CBRFs offer more limited care, "no more than 3 hours
of nursing care per week per resident." § 50.01(3), (1g).
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¶34 Further, the legislature has enacted provisions in
Chapter 50 that provide licensing and regulations specifically
directed toward CBRFs. Wisconsin Stat. § 50.035 describes
regulations on CBRF operations such as the extent of personnel
training and the installation of smoke detectors. Wisconsin
Stat. § 50.037 provides specific rules for CBRF licensure and
fees. Different provisions govern the licensure and regulation
of nursing homes. See Wis. Stat. §§ 50.04, 50.045, 50.095.
¶35 Thus, it is clear from the plain text of Wis. Stat.
§ 655.002 and the definition and regulation of service providers
under Chapter 50, from which Chapter 655 derives its legal
definitions, that hospitals, nursing homes, and CBRFs are
different operations with different meanings. While Chapter 655
covers hospitals and certain nursing homes, it unambiguously
does not cover CBRFs.
¶36 The defendants argue that this plain reading of Wis.
Stat. § 655.002 must be rejected because Divine Savior also
operates a hospital and a nursing home. Yet nowhere in the text
of § 655.002, nor in any other statutory provision of which the
court has been made aware, are CBRFs subject to Chapter 655 so
long as they share common corporate ownership with service
providers that Chapter 655 does cover. Instead, § 655.002
covers hospitals, which are statutorily defined as "building[s],
structure[s], institution[s] or place[s]" which do not include
CBRFs, Wis. Stat. §§ 655.002(1)(h), 50.33(2)(a) & (c); hospital
affiliates that "provide[] diagnosis or treatment of, or care
for, patients of the hospital," § 655.002(1)(i); and nursing
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homes, which are statutorily distinct from CBRFs, Wis. Stat.
§§ 655.002(1)(j), 50.01(3) & (1g). Under the facts agreed upon
by the parties, Divine Savior's CBRF is not a hospital, it did
not provide Oros treatment or care while she was a hospital
patient, and it did not operate as a nursing home.
¶37 The legislature had the ability to cover CBRFs that
share common operations and corporate ownership with a hospital.
It expressly did so for nursing homes. Wis. Stat. § 655.002(j)
(covering a nursing home so long as its "operations are combined
as a single entity with a hospital"); see State v. Yakich, 2022
WI 8, ¶24, 400 Wis. 2d 549, 970 N.W.2d 12 (explaining that the
legislature "plainly demonstrated the ability" to establish a
different standard and "declined to do so"). Simply because
Divine Savior owned a hospital and nursing home, in addition to
owning a CBRF, is of no moment.
¶38 The defendants note that Oros received medical
services from Divine Savior's hospital and nursing home during
the timeframe at issue. It is undisputed that after Oros's
various falls at the CBRF, she was taken to the hospital, and
after she fractured her wrist upon her fourth fall, she received
treatment at both the hospital and nursing home. The hospital,
nursing home, and CBRF are on the same medical campus.
¶39 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. Many individuals and entities
that provide health-related care and treatment are not covered
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by Chapter 655. The chapter covers certain "physicians" and
"nurse anesthetists," but it does not cover "ambulance service
providers," "first responder[s]," or "registered nurse[s]."
Wis. Stat. § 655.002; Phelps v. Physicians Ins. Co. of Wis.,
Inc., 2005 WI 85, ¶51, 282 Wis. 2d 69, 698 N.W.2d 643; Patients
Comp. Fund v. Lutheran Hosp., 223 Wis. 2d 439, 455, 588
N.W.2d 35 (1999). Just as registered nurses do not fall under
Chapter 655 simply because they help a patient who also received
care from a physician, CBRFs are not covered by Chapter 655
simply due to the fact that their residents received treatment
at a hospital or nursing home, even if those providers share
common corporate ownership with the CBRF.6 The circuit court
6 The defendants also point to Chapter 655's definition of
patient. Wisconsin Stat. § 655.001(10) defines patient as "an
individual who received or should have received health care
services from a health care provider or from an employee of a
health care provider acting within the scope of his or her
employment." According to the defendants, Divine Savior is a
health care provider under Chapter 655 through its operations of
a hospital, and Divine Savior employed the individuals who
administered care to Oros at the CBRF. This logic is too clever
by half. Oros is a "patient" under Chapter 655 only if she
received health care "from a health care provider," as defined
by Wis. Stat. § 655.002. See § 655.001(8) (providing the
definition of health care provider by reference to § 655.002).
CBRFs are not health care providers under § 655.002,
notwithstanding their corporate associations. Further, Chapter
655 protection extends to "employee[s] of . . . health care
provider[s]," as defined by Wis. Stat. §§ 655.001(8) and
655.002, only when they are acting within "the scope of [their]
employment" with the healthcare provider. Wis. Stat.
§ 655.005(1); see also § 655.001(10) (stating that "patients"
under Chapter 655 include those receiving care from "an employee
of a health care provider acting within the scope of his or her
employment"). Even if Divine Savior hires employees that serve
multiple facilities, the scope of employment for the employees
would be limited to the facility where the negligence allegedly
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below can make evidentiary rulings and give instructions that
would properly allow a jury to determine the liability of Divine
Savior, if any, based on its CBRF operations alone.
¶40 The plain text of Wis. Stat. § 655.002 demands that
CBRFs be treated differently than hospitals and nursing homes.
While Andruss may be prohibited from bringing a wrongful death
claim against Divine Savior's hospital and nursing home, she is
not barred from bringing the claim against Divine Savior's CBRF.
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. See State ex rel.
Cramer v. Wis. Ct. of Appeals, 2000 WI 86, ¶17, 246 Wis. 2d 473,
613 N.W.2d 591 (under the proper judicial role, we may not
"substitute[] judicial policy views for that of the
legislature"). Our task is to apply the law as it is written.
The defendants' Motion for the Application of Chapter 655,
construed as a motion for summary judgment, must be denied.
IV. CONCLUSION
¶41 Oros allegedly died as a result of negligence on the
part of Divine Savior. 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.
took place. Thus, Oros was not a "patient" under Chapter 655
when she received care at Divine Savior's CBRF, and Andruss's
wrongful death claim is not barred.
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¶42 When Oros received the injuries at issue in this case,
she was a resident of a CBRF owned and controlled by Divine
Savior. The basis of Andruss's claim is alleged negligence on
the part of the CBRF, and CBRFs fall outside the liability
protections of Chapter 655, even if they share common ownership
with hospitals and nursing homes. Thus, dismissal under Chapter
655 of Andruss's wrongful death claim is not warranted. The
court of appeals is affirmed.
By the Court.—The decision of the court of appeals is
affirmed.
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