Jori Bielawski v. Andrew J. Barth

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 28, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP1761 Cir. Ct. No. 2022CV1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JORI BIELAWSKI AND DAVID A. BIELAWSKI,

PLAINTIFFS-APPELLANTS,

V.

ANDREW J. BARTH,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Langlade County:
JOHN B. RHODE, Judge. Reversed and cause remanded for further proceedings.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 HRUZ, J. Jori and David Bielawski sued Andrew Barth, alleging
that he negligently caused Jori to contract several hospital-acquired infections not
related to any particular medical treatment but due to general uncleanliness at a
No. 2022AP1761

hospital that Barth managed.1 The circuit court dismissed their claims on the ground
that WIS. STAT. § 181.0855(1) (2021-22)2 granted Barth immunity due to his status
as the hospital’s president and chief executive officer (CEO). The Bielawskis
appeal that order, arguing that the court erred by dismissing their claims because
their complaint did not allege that the hospital was a corporation organized under
WIS. STAT. ch. 181 and, even if the hospital was a ch. 181 corporation,
§ 181.0855(1) does not bar their negligence claims against Barth.

¶2 We conclude that WIS. STAT. § 181.0855(1) provides immunity from
liability to a hospital’s corporate officer when the hospital is a nonstock corporation
under WIS. STAT. ch. 181. That immunity applies, subject to certain statutory
exceptions, when the hospital’s corporate officer is being sued for breaching, or
failing to perform, a duty resulting solely from his or her status as that hospital’s
corporate officer. The Bielawskis’ negligence claims are, by their own allegations,
based solely on Barth’s failure to perform a duty that results from his status as the
hospital’s president and CEO. The allegations in the Bielawskis’ complaint,
however, are insufficient to establish that the hospital is, in fact, a nonstock
corporation organized under ch. 181. Therefore, we agree with the Bielawskis that
the circuit court erred by dismissing their complaint on this basis, at least at this
stage in the proceedings.

¶3 In addition to the immunity issue, the circuit court had rejected
Barth’s contention, made in his motion to dismiss, that the Bielawskis’ negligence
claims are governed by WIS. STAT. ch. 655, which does not cover Barth because he

1
For ease of reading, we will refer to Jori and David collectively as “the Bielawskis” and
to Jori and David, individually, using their first names.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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is not a “health care provider” who is subject to ch. 655. While the court, upon
reconsideration, granted Barth’s motion to dismiss on immunity grounds, the issue
of whether liability related to Jori’s injuries is limited to that available under ch. 655
remains a viable issue, which the parties have fully briefed. We generally agree
with the circuit court on this matter. Specifically, we conclude that, with the
exception of the Bielawskis’ claim that Barth failed to warn Jori of the risk of
contracting an infection, the rest of the Bielawskis’ claims are not “medical
malpractice” claims that should have been brought under ch. 655.

¶4 Accordingly, we reverse the order dismissing the Bielawskis’
complaint and remand for further proceedings consistent with this opinion.

BACKGROUND

¶5 According to the complaint, Jori was a patient at the Aspirus Langlade
Hospital (“the Hospital”) from January 31, 2019, to February 13, 2019. During that
time, Barth was the president and CEO of the Hospital. Jori was admitted to the
Hospital for a hysterectomy, an appendectomy, and a repair of an intestinal
blockage. During her stay at the Hospital, Jori contracted “several life-threatening
infections including one from C. difficile.” As a result of these infections, Jori spent
several months in treatment. On January 4, 2022, the Bielawskis sued only Barth
in relation to the foregoing events, not the Hospital or Jori’s treating physician(s).
Jori sought damages for the injuries she suffered related to her infection, and David
sought derivative damages.

¶6 The Bielawskis alleged that Barth was responsible for ensuring that
the Hospital “was properly cleaned so that patients and staff would not contract a
hospital acquired infection” and for ensuring that the Hospital “was free of
pathogenic bio-burden, including but not limited to C. difficile.” They also alleged

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that Barth was “responsible for establishing cleaning protocols that offered the
greatest probability of eliminating” pathogens from the Hospital’s environment.
The Bielawskis further alleged that Barth knew, or should have known, “that the
cleaning methods employed by the [H]ospital in January of 2019 would merely
reduce bio-burden and would will [sic] leave behind viable organisms that can cause
[hospital-acquired] infections.”

¶7 The Bielawskis alleged that Barth, as the president and CEO of the
Hospital, “was the responsible corporate officer, and in that capacity, he had a duty
to direct the staff to take all reasonable steps to eliminate” pathogens from the
Hospital’s environment. They also alleged that Barth knew that pathogens,
including C. difficile, had been present in the Hospital in the past and, as the CEO,
Barth knew, or should have known, “that the hand method of cleaning surfaces,
including the floors, was sub-optimal because a substantial percentage of the
surfaces are not touched.”

¶8 The Bielawskis further alleged that Barth was causally negligent by
failing to institute cleaning practices that would eliminate pathogens and biohazards
from the Hospital’s environment and by failing to “institute and manage staff
protocols that would prevent the cross contamination of patients in the [Hospital] in
January and February of 2019.” In light of Barth’s knowledge that pathogens, such
as C. difficile, were present in the Hospital prior to January 2019, the Bielawskis
alleged that Barth “failed and neglected to direct that action be taken to eliminate
these pathogens from the environment.” In addition, they alleged that Barth was
negligent by failing “to properly warn plaintiff Jori, prior to her surgery, of the
presence of various known pathogens, including C. difficile in the [Hospital].”

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¶9 Finally, the Bielawskis alleged that Barth had “no training in the
medical sciences,” did not “make patient medical decisions in his role as president
and CEO,” was “not a medical doctor or an RN,” and was not otherwise a health
care provider. They also alleged that, as the president and CEO of the Hospital,
Barth made administrative decisions, “d[id] not provide patient care[,] and d[id] not
have direct access to patient medical records.”

¶10 Barth moved to dismiss the Bielawskis’ complaint for failure to state
a claim against him pursuant to WIS. STAT. § 802.06(2)(a)6., arguing that the
Bielawskis’ claims were, under the law, medical negligence claims governed by
WIS. STAT. ch. 655. Because medical negligence claims can only be brought against
“health care providers” under ch. 655 and because the Bielawskis alleged that Barth
was not a “health care provider,” Barth contended that the Bielawskis failed to state
a viable claim against him. The Bielawskis opposed the motion, asserting that their
claim was one of ordinary common-law negligence, not a medical negligence claim.

¶11 In an oral ruling, the circuit court initially denied Barth’s motion to
dismiss. The court concluded that the Bielawskis pled “a plausible theory of
liability” and that there was no controlling Wisconsin law stating that a plaintiff
could not sue a CEO of a hospital under the circumstances alleged in the Bielawskis’
complaint. Nevertheless, the court noted that it was “troubling … to consider a
corporate owner of a hospital being held personally responsible for this.” Barth then
filed a petition for leave to appeal the court’s decision denying his motion to dismiss,
which we denied.

¶12 Barth subsequently moved for reconsideration of the circuit court’s
denial of his motion to dismiss. This time, Barth contended that he was immune
from suit under WIS. STAT. § 181.0855(1). The Bielawskis opposed the motion,

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arguing that their complaint contained no allegations regarding the Hospital’s
corporate status. In reply, Barth requested that the court take judicial notice that the
Hospital was a nonprofit corporation based on certain publicly available
information, and he asserted that this corporate status was “not surprising
information since hospitals are typically organized as not-for-profit entities.”

¶13 In a written decision, the circuit court granted Barth’s motion for
reconsideration and granted his motion to dismiss on immunity grounds. The court
denied Barth’s request to take judicial notice that the Hospital was a nonprofit
corporation because, according to the court, the Bielawskis had “effectively
concede[d]” that the Hospital was “a corporation” by alleging in their complaint that
“as President and CEO, Barth ‘was the responsible corporate officer, and in that
capacity, he had a duty to direct the staff to take all reasonable steps to eliminate
pathogenic bio-burden from the hospital environment.’” The court then concluded
that Barth was immune from suit under WIS. STAT. § 181.0855(1) and that none of
the exceptions in § 181.0855(1)(a)-(d) applied. As a result of its decision, the court
dismissed the Bielawskis’ suit.

¶14 The Bielawskis then moved for reconsideration of the circuit court’s
dismissal order. They argued that the court erred by concluding that the allegations
in their complaint conceded that the Hospital was a corporation, including one
operating under WIS. STAT. ch. 181. They contended that none of the allegations
“even hints at the type of corporation [the Hospital] may be, or whether it is actually
a corporate entity recognized in Wisconsin.” In support of their motion, the
Bielawskis filed documents showing that the Hospital was not a corporation
organized under WIS. STAT. chs. 180, 181, or 183 but was instead a charitable
organization under WIS. STAT. ch. 202. The Bielawskis asked the court to take
judicial notice of these documents.

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¶15 In an oral ruling, the circuit court denied the Bielawskis’ motion. The
court declined to take judicial notice of either the documents the Bielawskis
provided or the publicly available information Barth previously provided. The court
noted: “I don’t know for sure who Mr. Barth’s exact employer is. There [are] now
references from defense counsel that there’s a consortium or a conglomeration of
other corporate entities that may own [the Hospital].” Although the court agreed
that the information regarding the Hospital’s corporate status was not “clearly in the
record,” it stood by its reasoning that the Bielawskis’ allegations in their complaint
conceded that Barth was a corporate officer. The court concluded that nothing “in
the record, and the briefs, or arguments that have been made or the facts that I’m
aware of … convince[s] me that the results should be that a president of a hospital
can be personally liable for what allegedly happened in this case.”

¶16 The Bielawskis now appeal.

DISCUSSION

¶17 This appeal addresses whether the circuit court properly dismissed the
Bielawskis’ negligence claims on the ground that WIS. STAT. § 181.0855(1)
provides Barth, as the president and CEO of the Hospital, with immunity from the
Bielawskis’ claims that arise solely from his alleged duty to maintain the Hospital
in a sufficiently clean state. We also address whether the Bielawskis’ claims against
Barth were medical malpractice claims governed by WIS. STAT. ch. 655, as opposed
to ordinary common-law negligence claims. Whether a complaint states a claim
upon which relief can be granted is a question of law that we review independently.
Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665,
849 N.W.2d 693.

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¶18 “A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.” Id., ¶19 (citation omitted). For purposes of our
review, “we accept as true all facts well-pleaded in the complaint and the reasonable
inferences therefrom.” Id. In construing the complaint, we cannot add facts or
accept legal conclusions as true. Id. The complaint “must plead facts, which if true,
would entitle the plaintiff to relief.” Id., ¶21. The sufficiency of the complaint
“depends on substantive law that underlies the claim made because it is the
substantive law that drives what facts must be pled.” Id., ¶31.

¶19 Given the parties’ arguments, we must also interpret and apply WIS.
STAT. § 181.0855(1) and provisions within WIS. STAT. ch. 655. Statutory
interpretation begins with the language of the statute. State ex rel. Kalal v. Circuit
Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We give
statutory language “its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their technical or special
definitional meaning.” Id. We interpret statutory language “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.

¶20 We first address whether Barth is immune under WIS. STAT.
§ 181.0855(1) because, if the circuit court correctly dismissed the Bielawskis’
claims on this basis, it would be dispositive of this appeal. Because we conclude
that the court erred by dismissing the Bielawskis’ claims on immunity grounds at
this stage of the proceedings, we also address Barth’s alternative ground to affirm
the circuit court. As the prevailing party in this case, Barth may raise in his response
brief any argument that would provide an alternative ground to affirm the court
without the need for a cross-appeal. See B&D Contractors, Inc. v. Arwin Window

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Sys., Inc., 2006 WI App 123, ¶4 n.3, 294 Wis. 2d 378, 718 N.W.2d 256 (citing State
v. Alles, 106 Wis. 2d 368, 391, 316 N.W.2d 378 (1982)). Thus, we address Barth’s
contention that the Bielawskis’ claims “for injuries from a hospital-acquired
infection” constitute claims for medical negligence that are governed by WIS. STAT.
ch. 655, which would absolve Barth from any liability because it is undisputed that
he is not “a health care provider” who is subject to suit under that chapter.

I. Barth’s Immunity Under WIS. STAT. § 181.0855(1)

¶21 The Bielawskis argue that Barth cannot be immune from suit under
WIS. STAT. § 181.0855(1) because their complaint contains no allegation that the
Hospital is a corporation organized under WIS. STAT. ch. 181. Separately, the
Bielawskis also contend that the circuit court interpreted the scope of immunity
under the statute too broadly and immunity would not apply even if the Hospital
were a ch. 181 nonstock corporation. In particular, they interpret § 181.0855(1) as
“provid[ing] protection to directors and officers from suits for a breach of or failure
to perform a duty solely owed to the corporation.” In other words, the Bielawskis
contend that § 181.0855(1) immunizes directors or officers for breaching, or failing
to perform, duties owed only to the corporation and never for duties owed to third
parties.

¶22 While we agree with the Bielawskis that their complaint does not
allege or otherwise establish that the Hospital is, in fact, a corporation organized
under WIS. STAT. ch. 181, we reject their contention that WIS. STAT. § 181.0855(1)
only protects officers from suits for breaching, or failing to perform, duties owed to
the corporation. Because the Bielawskis are correct in the first respect, the circuit
court erred by dismissing their claims at this time.

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¶23 WISCONSIN STAT. § 181.0855(1) provides that

a director or officer is not liable to the corporation, its
members or creditors, or any person asserting rights on
behalf of the corporation, its members or creditors, or any
other person for damages, settlements, fees, fines, penalties
or other monetary liabilities arising from a breach of, or
failure to perform, any duty resulting solely from his or her
status as a director or officer, unless the person asserting
liability proves that the breach or failure to perform
constitutes any of the [exceptions in § 181.0855(1)(a)-(d)].

The term “corporation,” as used in WIS. STAT. ch. 181, means “a nonstock
corporation, including a nonprofit corporation, that is incorporated under or
becomes subject to [ch. 181].” WIS. STAT. § 181.0103(5).

¶24 The Bielawskis are correct that their complaint contains no allegation
regarding the Hospital’s particular corporate status. The extent of the allegations
related to the Hospital’s corporate status includes those alleging that Barth was the
president and CEO of the Hospital, that Barth was “the responsible corporate
officer,” and that Barth made administrative decisions as president and CEO of the
Hospital. At most, these allegations show that Barth was a director or officer of a
corporate entity, but not what type of corporation.

¶25 More importantly, the Bielawskis’ complaint does not allege that the
Hospital is a nonstock or nonprofit corporation organized under WIS. STAT. ch. 181.
See WIS. STAT. § 181.0103(5). Nor does the complaint allege that the Hospital is
“a corporation that does not make distributions” or “a corporation without capital
stock.” See § 181.0103(17), (18) (defining nonprofit and nonstock corporations,
respectively). It makes no difference to our analysis that the Bielawskis never
disputed Barth’s contention that “[h]ospitals are typically nonstock, nonprofit
corporations.” Our review is limited to the allegations in the Bielawskis’ complaint,

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and, in reviewing the complaint, we cannot add the alleged fact that hospitals are
typically nonstock, nonprofit corporations. See Data Key Partners, 356 Wis. 2d
665, ¶19. Because our review is limited to the allegations in the Bielawskis’
complaint, those allegations are insufficient to establish that Barth was a director or
officer of a nonstock corporation or that the Hospital was a nonstock corporation
organized under ch. 181.

¶26 For purposes of applying WIS. STAT. § 181.0855(1), it is not sufficient
that Barth is alleged to be—and undisputedly is—the president and CEO of a
hospital that is a corporation. The hospital must be a particular type of corporation.
For this reason, we conclude that the circuit court erred by dismissing the
Bielawskis’ claims, at least at this stage of the proceedings, on the ground that Barth
was immune under § 181.0855(1).

¶27 We reject, however, the Bielawskis’ separate argument that the circuit
court misinterpreted the scope of immunity under WIS. STAT. § 181.0855(1). We
read § 181.0855(1) as protecting directors or officers of nonstock corporations from
liability to the corporation and to third parties for conduct that results solely from
their status as directors or officers of the corporation. The exceptions in
§ 181.0855(1)(a)-(d), however, recognize that directors or officers can be liable for
certain actions regardless of whether they are acting pursuant to their status as
officers or directors of the nonstock corporation. Under those exceptions, a director
or officer of a nonstock corporation is not immune from liability when his or her
conduct constitutes the following: “[a] willful failure to deal fairly with the
corporation or its members in connection with a matter in which the director or
officer has a material conflict of interest”; “[a] violation of criminal law, unless the
director or officer had reasonable cause to believe that his or her conduct was lawful
or no reasonable cause to believe that his or her conduct was unlawful”; “[a]

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transaction from which the director or officer derived an improper personal profit
or benefit”; or “[w]illful misconduct.” Sec. 181.0855(1)(a)-(d).

¶28 The above statutory language cannot be read to provide immunity
only for breaching, or failing to perform, a duty owed solely to the corporation, as
the Bielawskis contend. And, to our knowledge, WIS. STAT. § 181.0855(1) has
never been interpreted in a citable Wisconsin case to be so limited. Rather, in
addition to the duties owed to the corporation, § 181.0855(1) plainly recognizes that
directors or officers owe a duty to the corporation’s members or creditors, to persons
asserting rights on behalf of either the corporation or its members or creditors, and,
most importantly to this case, to any other person. If any of those third parties seek
to hold a corporate officer of a nonstock corporation liable for a breach of, or failure
to perform, a duty resulting solely from his or her status as a corporate officer,
§ 181.0855(1) protects that corporate officer, subject to the exceptions listed therein.

¶29 Our interpretation of WIS. STAT. § 181.0855(1) is consistent with our
supreme court’s interpretation of the statute in Benjamin Plumbing, Inc. v. Barnes,
162 Wis. 2d 837, 470 N.W.2d 888 (1991),3 a case that both the Bielawskis and Barth
cite in support of their arguments regarding Barth’s immunity. In that case, the
director of a nonprofit corporation only partially disclosed the corporation’s status
when contracting on its behalf with the plaintiff for services. Id. at 842-43. The
director had negotiated personally with the plaintiff. Id. at 843-44. When the
plaintiff did not receive payment for its services, it sued the director, two other
officers of the corporation, and the corporation. Id. at 845. The supreme court held

3
In Benjamin Plumbing, Inc. v. Barnes, 162 Wis. 2d 837, 857, 470 N.W.2d 888 (1991),
our supreme court interpreted a previous version of WIS. STAT. § 181.0855, which was numbered
as WIS. STAT. § 181.287 (1991-92). The statute was renumbered as § 181.0855 in 1997. See 1997
Wis. Act 79, § 48.

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that the director was liable as a party to the contract under common-law agency
because he was “an agent of a partially disclosed principal in circumstances where
he never, at or before the execution of the contract, assumed the burden of giving
notice of his principal’s corporate status.” Id. at 856, 859-60.

¶30 The supreme court also concluded that the director was not statutorily
immune from contractual liability because his liability was based on “his position
as an agent to a partially disclosed corporate principal” and not based on “his status
as a director” of the corporation.4 Id. at 857. In reaching this conclusion, the court
interpreted WIS. STAT. § 181.0855(1) as granting immunity to directors and officers
of a nonstock corporation when their “liability related solely to [their] status” as
corporate officers. See Benjamin Plumbing, 162 Wis. 2d at 857-59. To support its
interpretation, the court compared the statutory provisions regarding director and
officer liability with respect to for-profit and nonprofit corporations. Id. at 858. The
court explained that the latter statute’s legislative history suggested “that directors
and officers of nonprofit corporations were granted broader immunity than their
for-profit counterparts because of their special organizational purposes.” Id. at 858
& n.14. Specifically, the court pointed to the statute’s Legislative Council’s note,
which states in part:

As it applies to corporations organized under [WIS. STAT.]
ch. 181 (nonprofit corporations), the provision is expanded
to include liability to creditors and to 3rd parties generally,
in addition to liability to the corporation, the corporation’s
members, or any person asserting rights on their behalf. The
special committee concluded that, given the organization

4
In a footnote, our supreme court noted the court of appeals’ determination that the other
corporate officers the plaintiff had sued “never had any dealings with [the plaintiff] and accordingly
were ‘shielded from personal liability by reason of their status as corporate officers.’” Benjamin
Plumbing, 162 Wis. 2d at 846 n.6 (emphasis added; citation omitted). The plaintiff did not
challenge this determination in the supreme court, but the court noted that the two other corporate
officers “were not signator[ies] to the contract.” Id.

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and purposes of nonprofit corporations, additional statutory
protection from personal liability should be extended to
directors and officers of such corporations.

Benjamin Plumbing, 162 Wis. 2d at 858 n.14 (citation omitted).

¶31 Despite the broader protections for directors and officers of nonprofit
corporations, our supreme court determined that, based on the statutory language
and the contract claim at issue, those protections did not extend to the particular
director because his liability “as an agent for a partially disclosed corporate principal
was not solely dependent on his status as a director” of the corporation. Id. at 859.
Thus, although factually distinct from this case, Benjamin Plumbing supports our
interpretation of WIS. STAT. § 181.0855(1) as protecting corporate officers from
liability to third parties for conduct resulting solely from the officers’ corporate
status. The court’s discussion of the statute’s legislative history further supports the
statute’s recognition of immunity for a director or officer’s breach of, or failure to
perform, a duty not only to the corporation, but to third parties as well.

¶32 Contrary to the Bielawskis’ arguments, such an interpretation of WIS.
STAT. § 181.0855(1) does not immunize officers and directors of nonstock
corporations from all of their common-law obligations to avoid acting negligently
in a way that harms others. In some situations, a corporate officer may be liable for
negligent acts committed in the scope of his or her duties. See Casper v. American
Int’l S. Ins. Co., 2011 WI 81, ¶¶82-84, 90, 105, 336 Wis. 2d 267, 800 N.W.2d 880
(noting the general proposition that a corporate officer “is personally responsible
for his [or her] own tortious conduct” in situations “where a corporate officer’s
personal negligence would be treated the same as any other” individual’s negligence
(citation omitted)). In other words, § 181.0855(1) does not immunize corporate
officers for breaching, or failing to perform, a duty of care that does not result solely

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from their status as corporate officers. Nor does it immunize corporate officers for
breaching a duty that results from their status as corporate officers but is excepted
in § 181.0855(1)(a)-(d).

¶33 To illustrate, and as relevant to this case, WIS. STAT. § 181.0855(1)
provides immunity to the president (or CEO) of a hospital, organized as a nonstock
corporation under WIS. STAT. ch. 181, for failing to implement policies and
procedures that keep the hospital in a sufficiently clean state. Immunity exists
precisely because it is only due to the president’s status as the president of the
hospital that he or she is responsible for implementing those policies and procedures
as part of an overall obligation of the hospital to keep the facility reasonably clean.
In this scenario, the president’s liability results solely from a breach of, or failure to
perform, a duty arising from his or her status as president of the hospital.

¶34 If, however, that same president were to be driving his or her car in
the hospital’s parking lot and hit a patient who was walking, WIS. STAT.
§ 181.0855(1) would not provide immunity for the hospital’s president because that
conduct is unrelated to his or her status or duties as the hospital’s president. In this
scenario, the president’s liability does not result from a breach of, or failure to
perform, a duty arising solely from his or her status as the president of the hospital,
but rather a breach of his or her duty of ordinary care while driving a vehicle. See
Casper, 336 Wis. 2d 267, ¶¶90, 105.

¶35 To further explain the nature and reach of immunity under WIS. STAT.
§ 181.0855(1), at least as relevant to the parties’ arguments in this case, one can
posit another scenario. If the CEO of a hospital, organized as a nonstock corporation
under WIS. STAT. ch. 181, were to intentionally administer a poisonous liquid to a
patient that caused him or her to become ill, then the CEO would not be immune

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from personal liability. Rather, and at a minimum, the willful misconduct exception
to immunity in § 181.0855(1)(d) would apply.

¶36 Although the Bielawskis contend that Jori’s injuries stemmed from a
duty of care that Barth owed them as a separate common-law duty, unrelated to his
status as the Hospital’s president and CEO and unprotected by WIS. STAT.
§ 181.0855(1), the Bielawskis’ allegations in their own complaint belie their
premise. All of the Bielawskis’ allegations of negligence are plainly based on
breaches of a duty of care that resulted solely from Barth’s status as the president
and CEO of the Hospital.5 Indeed, the majority of the allegations in the Bielawskis’
complaint expressly relate to Barth’s claimed duties and responsibilities as president

5
Based on materially different facts, we recently reached the opposite conclusion in
Garrett v. Ocean View Swimming Pool Services, LLC, No. 2023AP2000, slip op. recommended
for publication (WI App Jan. 2, 2025). In that case, the plaintiff sued a limited liability corporation
(LLC) and its member-owner, alleging that both entities had negligently maintained the plaintiff’s
pool. Id., ¶2. Just as Barth relies on the immunity statute for nonstock corporations, the LLC and
the member-owner in Garrett relied on WIS. STAT. § 183.0304(1) to argue that the member-owner
could not be held personally liable for negligently performing the pool’s maintenance because the
statute “preserves the liability of a member of an LLC for conduct other than as a member or
manager.” See Garrett, No. 2023AP2000, ¶¶12-13. Section 183.0304(1) provides that an LLC’s
debt, obligation, or other liability “is solely the debt, obligation, or other liability of the company”
and an LLC’s member is not personally liable for “a debt, obligation, or other liability of the
company solely by reason of being or acting as a member or manager.” Sec. 183.0304(1).

Although we rejected the LLC and the member-owner’s argument for being insufficiently
developed, we noted that, based on the language in WIS. STAT. § 183.0304(1), the plaintiff was not
seeking to hold the member-owner personally liable for the liability of the LLC. Garrett,
No. 2023AP2000, ¶13. Rather, the plaintiff sought to hold the member-owner liable based on how
the member-owner personally performed the pool maintenance, which was “not founded at all—
much less ‘solely’—upon [the member-owner] ‘being or acting as a member or manager’ of [the
LLC].” Id. (quoting § 183.0304(1)). That is, the plaintiff sought to hold the member-owner
personally liable for the member-owner’s own actions in performing the pool maintenance. Thus,
the member-owner could be held personally liable because the conduct for which the plaintiff
sought to hold the member-owner personally liable was not due to the member-owner’s status as a
member or manager of an LLC and, therefore, was unprotected under § 183.0304(1).

Here, in contrast, the Bielawskis seek to hold Barth personally liable for conduct that did
result solely from his status as the Hospital’s president and CEO and, thereby, Barth is protected
under WIS. STAT. § 181.0855(1).

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and CEO of the Hospital. These allegations include Barth’s responsibility for
ensuring that the Hospital was properly cleaned to prevent the risk of contracting a
hospital-acquired infection, Barth’s responsibility for “establishing cleaning
protocols that offered the greatest probability of eliminating” pathogens from the
Hospital’s environment, Barth’s “duty to direct staff to take all reasonable steps to
eliminate” pathogens from the hospital environment, and Barth’s failure to institute
appropriate cleaning practices to eliminate pathogens from the hospital
environment. None of the allegations in the Bielawskis’ complaint relate to a duty
of care that does not arise solely from Barth’s status as the Hospital’s president and
CEO. Nor are any of the allegations relevant to any of the exceptions set forth in
§ 181.0855(1)(a)-(d).

¶37 In sum, the Bielawskis’ claims against Barth would have been
properly dismissed under WIS. STAT. § 181.0855(1) if their complaint had alleged
that the Hospital was a nonstock corporation organized under WIS. STAT. ch. 181.
Although we conclude that the complaint did not do so, we reject the Bielawskis’
argument that even if the Hospital were organized under ch. 181, § 181.0855(1)
would still not apply.

II. The Bielawskis’ Claims Against Barth and the Application of WIS. STAT.
ch. 655

¶38 Because we conclude that the circuit court erred by dismissing the
Bielawskis’ claims on immunity grounds, we turn to Barth’s alternative argument
that the court erred by initially denying his motion to dismiss, in which Barth
asserted that the Bielawskis’ complaint actually states medical negligence claims,
which are governed by WIS. STAT. ch. 655. Citing ch. 655 and case law from other
jurisdictions, Barth contends that ch. 655 “mandates that the Bielawskis’ claims be
treated the same as other jurisdictions treat claims involving hospital-acquired

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infections: as claims for medical negligence.” In response, the Bielawskis argue
that the conduct for which they seek to hold Barth liable—namely, his failing to
maintain the Hospital in a sufficiently clean state—does not constitute a “medical
service” that would be governed by ch. 655. With one exception, we agree with the
Bielawskis.

¶39 WISCONSIN STAT. ch. 655 contains the “‘exclusive procedure and
remedy for medical malpractice in Wisconsin’ against health care providers, as that
term is defined in WIS. STAT. § 655.001(8), and their employees.” Phelps v.
Physicians Ins. Co. of Wis., 2009 WI 74, ¶64, 319 Wis. 2d 1, 768 N.W.2d 615
(citation omitted); see also WIS. STAT. § 655.007 (stating that claims or derivative
claims “for injury or death on account of malpractice” are subject to ch. 655); WIS.
STAT. § 655.005(1) (stating that claims or derivative claims against health care
providers or employees of health care providers “for damages for bodily injury or
death due to acts or omissions of the employee of the health care provider acting
within the scope of his or her employment and providing health care services” are
subject to ch. 655). Health care providers expressly include physicians, nurse
anesthetists, corporations and partnerships organized and operated to provide the
services of physicians and nurse anesthetists, and hospitals. WIS. STAT.
§§ 655.001(8), 655.002(1)(a)-(e), (h). Here, it is undisputed that Barth is not a
health care provider under ch. 655.

¶40 Importantly, WIS. STAT. ch. 655 applies “only to negligent medical
acts or decisions made in the course of rendering professional medical care.”
McEvoy v. Group Health Coop. of Eau Claire, 213 Wis. 2d 507, 530, 570 N.W.2d
397 (1997). It does not preclude a cause of action that is not based “on an improper
medical action or decision resulting from negligence.” See id. at 530-31. For
example, our supreme court has concluded that ch. 655 did not preclude a plaintiff’s

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bad faith claim against a health maintenance organization (HMO)—which was both
a health care provider and an insurer—for denying her coverage for her treatment
because the claim was based “on a ‘breach of duty imposed as a consequence of the
relationship established by contract,’ and not on an improper medical action or
decision resulting from negligence.” McEvoy, 213 Wis. 2d at 514, 516, 531
(citation omitted). Similarly, the court has concluded that ch. 655 is inapplicable to
a defendant’s third-party claim against a physician when that claim “arises from an
action upon a contract to recover fees for medical services in which the
appropriateness of these services is disputed, and where no bodily injury resulting
from the doctor’s action is alleged.” Northwest Gen. Hosp. v. Yee, 115 Wis. 2d 59,
67, 339 N.W.2d 583 (1983). As seen in these examples, ch. 655 does not govern
claims that are based on something other than a health care provider’s negligent
medical acts or decisions related to patient care.

¶41 At this stage of the proceedings, the Bielawskis’ allegations are not
governed by WIS. STAT. ch. 655 because the allegations are not based on either a
negligent medical act that occurred during Jori’s surgical procedure or any decisions
made by the physician(s) who treated Jori during her stay at the Hospital. Rather,
their allegations are based only on Barth’s purported duty to maintain the Hospital
in a sufficiently clean state and on Barth’s claimed failure to institute cleaning
policies and procedures to eliminate pathogens from the Hospital environment and
“prevent the cross contamination of patients.” These allegations are based on a
breach of Barth’s duty of ordinary care to those who enter the Hospital. They are
not based on any medical acts, which Barth does not perform, or based on decisions
by physicians, which Barth undisputedly is not. Thus, the Bielawskis’ allegations
do not raise a medical negligence claim against Barth, but rather they raise an
ordinary negligence claim regarding Barth’s breach of his duty of care—namely, to

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maintain a sufficiently clean hospital by failing to establish appropriate cleaning
policies and procedures.

¶42 The cases from other jurisdictions that Barth cites in support of his
contention that the Bielawskis’ claims are medical negligence claims do not compel
a different conclusion. Those cases address medical negligence claims brought
against health care providers (hospitals and physicians), relate to the rendering of
medical care, and address infections acquired during medical procedures. See
Young v. Kennedy, 429 S.W.3d 536, 538 & n.1, 541 (Tenn. Ct. App. 2013)
(wrongful death claim based on medical malpractice against hospital and physician
who treated plaintiff’s husband for a hospital-acquired infection); Vinlarek v. Cane,
691 S.W.2d 108, 108 (Tex. App. 1985) (medical malpractice claim against
physician for negligent acts in treating an infection the patient acquired after oral
surgery); Elswick v. Nichols, 144 F. Supp. 2d 758, 760 (E.D. Ky. 2001) (medical
malpractice claim against hospital and physician for an infection that the patient
allegedly acquired during knee surgery); Gahm v. Thomas Jefferson Univ. Hosp.,
No. 94-2050, 2000 WL 233247, at *1 (E.D. Penn. Feb. 29, 2000) (medical
malpractice claim against hospital and physicians for an infection that the patient
allegedly acquired during a spinal surgery). The Bielawskis’ complaint does not
allege claims against health care providers, does not relate to the rendering of
medical care, and does not state—or even suggest—that Jori contracted her
infection during her surgery or any related medical procedures.

¶43 Furthermore, Wisconsin courts have not addressed whether WIS.
STAT. ch. 655 governs a patient’s claim for an injury arising out of a general
hospital-acquired infection. Barth acknowledges that Wisconsin courts have not
addressed whether the Bielawskis’ claim is governed by ch. 655, but he argues that
“courts implicitly recognize that to be the case,” citing Braverman v. Columbia

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No. 2022AP1761

Hospital, Inc., 2001 WI App 106, 244 Wis. 2d 98, 629 N.W.2d 66. In Braverman,
the patient sued the hospital for medical negligence because she contracted a
hospital-acquired infection after undergoing surgery. Id., ¶¶4, 8. The issues on
appeal, however, were related to whether the patient was entitled to discovery of
certain hospital records. Id., ¶¶1-2. Braverman did not address ch. 655 or whether
the patient’s claim was governed by it.6

¶44 Even if Braverman stands for an implicit recognition that WIS. STAT.
ch. 655 governs a patient’s claim for an injury arising out of a hospital-acquired
infection, that notion would still not bring the Bielawskis’ allegations against Barth
into the realm of medical negligence. The patient’s claim in Braverman was
brought against a health care provider—i.e., the hospital itself—and was based on
the rendering of medical care. That context is much unlike the Bielawskis’ claims,
which are brought against a hospital’s president and CEO—who, again, is not a
health care provider under ch. 655—and are based on generally maintaining a
sufficiently clean hospital under appropriate policies and procedures. Barth cannot
avail himself of ch. 655 simply by being the president and CEO of an entity that
itself is subject to that chapter. See Andruss v. Divine Savior Healthcare, Inc.,

6
Similarly, Shibilski v. St. Joseph’s Hospital of Marshfield, Inc., 83 Wis. 2d 459,
461-62, 266 N.W.2d 264 (1978), also cited by Barth, addressed discovery issues related to a
wrongful death claim that the plaintiff brought against a hospital after the plaintiff’s wife died in a
fire that started in her hospital room in the hospital’s psychiatric ward. Among other things, the
plaintiff claimed that the hospital was negligent by failing to keep his wife under constant
supervision, by failing “to train and instruct hospital personnel in handling safety and emergency
situations,” and by failing “to establish rules and regulations for dealing with” psychiatric ward
patients. Id. at 461.

Our supreme court ultimately held that the hospital’s rules and regulations were
discoverable, that hospital committee records and reports were not privileged, and that the attorney
work product privilege did not apply. Id. at 471. It did not address whether the plaintiff’s claims
were governed by WIS. STAT. ch. 655. Contrary to Barth’s contention, it did not recognize that the
allegations against a president or CEO of a hospital relating to maintaining a hospital in a
sufficiently clean state “implicate the alleged acts or omissions of health care providers.”

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No. 2022AP1761

2022 WI 27, ¶¶36, 42, 401 Wis. 2d 368, 973 N.W.2d 435 (concluding that the
defendant’s community-based residential facilities were not governed by ch. 655
even though they shared common corporate ownership with the defendant’s
hospitals and nursing homes, which were covered by ch. 655). This conclusion is
especially true when the allegations are unrelated to any negligent medical act that
occurred during Jori’s surgery or to any decisions rendered by her treating
physician(s).

¶45 However, we agree with Barth that, as an exception to the foregoing
analysis, the Bielawskis’ claim that Barth failed to warn Jori about the risk of
contracting an infection must be stated as a medical negligence claim because it
relates to the benefits and risks of treatment under the informed consent statute—
WIS. STAT. § 448.30. Under that statute, “[a]ny physician who treats a patient shall
inform the patient about the availability of reasonable alternate medical modes of
treatment and about the benefits and risks of these treatments.” Id. A patient’s
claim for a failure to inform or warn is “treated under the law as a separate and
distinct form of malpractice.” Hannemann v. Boyson, 2005 WI 94, ¶40, 282
Wis. 2d 664, 698 N.W.2d 714.

¶46 Here, the Bielawskis alleged that Barth knew that pathogens had been
present in the Hospital in the past. In light of this knowledge, the Bielawskis alleged
that Barth was negligent by failing to warn Jori, before her surgery, of the presence
of pathogens in the Hospital. These allegations necessarily relate to the “benefits
and risks” of treatment under WIS. STAT. § 448.30, which is a duty that falls only
on the treating physician. See id. As already established, Barth was not Jori’s
treating physician and, undisputedly, is not a health care provider that is subject to
WIS. STAT. ch. 655. Thus, to the extent that the Bielawskis allege a general claim
for a failure to warn Jori of the risk of contracting an infection while she was being

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No. 2022AP1761

treated within the Hospital, that claim is subject to ch. 655 and was properly
dismissed.

¶47 Although the Bielawskis consistently argue that their claims are based
on ordinary, common-law negligence, their complaint contains no allegation that
would have imposed on Barth a duty to warn Jori of the risk of contracting an
infection. In Wisconsin, “everyone has a duty to act with reasonable and ordinary
care under the circumstances.” Hornback v. Archdiocese of Milwaukee, 2008 WI
98, ¶21, 313 Wis. 2d 294, 752 N.W.2d 862. “Ordinary care involves the concept of
foreseeability, in that a reasonable person exercising ordinary care would have
foreseen injury as a consequence of his [or her] act.” Hoida, Inc. v. M&I Midstate
Bank, 2006 WI 69, ¶30, 291 Wis. 2d 283, 717 N.W.2d 17. “[W]hat is within the
duty of ordinary care depends on the circumstances under which the claimed duty
arises. For example, what is comprised within ordinary care may depend on the
relationship between the parties or whether the alleged tortfeasor assumed a special
role in regard to the injured party.” Id., ¶32. Here, the Bielawskis do not allege any
such special relationship between themselves and Barth under which any ordinary,
common-law duty to warn would arise.

¶48 In sum, except for their claim alleging a failure to warn, we conclude
that the Bielawskis’ claims against Barth are not those of medical negligence that
are governed by WIS. STAT. ch. 655. Those claims remain viable as long as it is not
later determined that Barth is immune under WIS. STAT. § 181.0855(1).

By the Court.—Order reversed and cause remanded for further
proceedings.

Not recommended for publication in the official reports.

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