MILWAUKEE, Wis. (Legal Newsline) – A company that operates a nursing home and hospital in Wisconsin can’t hide behind legal protections for those types of facilities from wrongful death lawsuits.
The Wisconsin Supreme Court rejected the arguments of Divine Savior Healthcare on May 6, ruling for the plaintiff in a lawsuit watched by the Wisconsin Association for Justice, which is the state’s trial lawyers group.
Divine operates a hospital, nursing home and community-based residential facility. Kim Andruss sued the company over the treatment of her mother Anne Oros while at the CBRF.
Divine tried to invoke a Wisconsin law – chapter 655 – to determine the wrongful death claim was not warranted. The law prevents adult children from bringing wrongful death claims against a specific list of health care providers, like nursing homes.
Oros was 88 years old and suffering from Alzheimer’s when she was admitted as a resident to Divine Savior’s CBRF in Portage in 2015.
The suit alleged six falls at the CBRF, plus two more at its nursing home. The final fall at the CBRF resulted in a diagnosis of subdural hematoma, and she passed away in May 2016 while in hospice.
The original lawsuit made allegations regarding falls at both the CBRF and the nursing home. Divine’s defense claimed Chapter 655 would dismiss the wrongful death claim and protected both the nursing home and CBRF.
The trial judge didn’t have clear guidance on whether CBRFs were afforded the same protection as nursing homes, but it said it “borders almost on nonsensical that different rules would apply…”
Andruss was allowed to amend her complaint, which she did to remove all claims against the nursing home. Still, the trial judge ruled Divine’s CBRF was entitled to the same legal protections as its nursing home.
However, the state’s Court of Appeals reversed and the Supreme Court agreed with it. They noted that nowhere in Chapter 655 are CBRFs mentioned as health care providers protected from wrongful death lawsuits brought by adult children.
The Supreme Court opinion notes different licensing and regulations for CBRFs and nursing homes.
“Thus, it is clear from the plain text of (Chapter 655) 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,” the opinion says.
“While Chapter 655 covers hospitals and certain nursing homes, it unambiguously does not cover CBRFs.”
Receiving services from Divine’s hospital and nursing home doesn’t change that, the opinion says.
“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,” the decision says.
“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.”