Savannah Wren v. Columbia St. Mary's Hospital Milwaukee, Inc

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.
February 11, 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. 2024AP126 Cir. Ct. No. 2023CV4960

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

SAVANNAH WREN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF CALVIN GORDON, JR., AND CALVIN GORDON,

PLAINTIFFS-APPELLANTS,

V.

COLUMBIA ST. MARY'S HOSPITAL MILWAUKEE, INC, JESSICA HOELZLE, M.D.,
JORDAN HAUCK, D.O. AND INJURED PATIENTS AND FAMILIES COMPENSATION
FUND,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
KASHOUA KRISTY YANG, Judge. Reversed and cause remanded for further
proceedings.

Before Donald, P.J., Geenen and Colón, JJ.
No. 2024AP126

¶1 COLÓN, J. Savannah Wren, both individually and as the personal
representative of the Estate of Calvin Gordon, Jr., and Calvin Gordon (collectively
Wren) appeal from an order of the circuit court granting the motion to dismiss
filed by Columbia St. Mary’s Hospital Milwaukee, Inc., Jessica Hoelzle, M.D.,
Jordan Hauck, D.O., and Injured Patients and Families Compensation Fund
(collectively Columbia St. Mary’s). The order dismissed Wren’s complaint
alleging medical malpractice, wrongful death, and negligent infliction of
emotional distress related to the care she received during her pregnancy and the
death of Wren’s newborn son, Calvin Gordon, Jr.

¶2 On appeal, Wren argues that the circuit court erroneously granted the
motion to dismiss filed by Columbia St. Mary’s. First, she argues that the circuit
court erroneously found that WIS. STAT. § 806.04(11) (2021-22),1 required Wren
to name the attorney general, the speaker of the assembly, the president of the
senate, and the senate majority leader as parties in this matter. She additionally
argues that the circuit court erroneously found that Columbia St. Mary’s was
entitled to immunity under WIS. STAT. § 895.4801, and she argues that § 895.4801
is unconstitutional.

¶3 For the reasons set forth below, we agree with Wren. Therefore, we
reverse the order of the circuit court dismissing Wren’s complaint, and we remand
this matter for further proceedings consistent with this opinion.2

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

While we reverse the circuit court’s order dismissing Wren’s complaint in this matter,
2

we note that there were several failures by counsel to comply with our rules of appellate
procedure. We remind counsel that a failure to comply with the rules of appellate procedure may
be grounds for, inter alia, dismissal. WIS. STAT. RULE 809.83(2).

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BACKGROUND

¶4 Wren filed a complaint on July 6, 2023, against Columbia St.
Mary’s, alleging three counts of medical malpractice and wrongful death and one
count of negligent infliction of emotional distress related to the care she received
during the end of her pregnancy in May 2020 and the death of her newborn son on
May 24, 2020.3

¶5 At the time of Wren’s pregnancy and birth of her son in May 2020,
the country was in the midst of the COVID-19 pandemic. In response to the
pandemic, Governor Tony Evers declared a state of emergency on March 12,
2020, for the State of Wisconsin in Executive Order No. 72. The legislature also
passed several pieces of legislation in response to the pandemic. As relevant here,
the legislature passed WIS. STAT. § 895.4801 on April 15, 2020, as part of a larger
bill responding to the COVID-19 pandemic, and established immunity for health
care providers for certain acts and omissions beginning on March 12, 2020, and
lasting for sixty days following the end of the state of emergency. See 2019 Wis.
Act 185, § 98. On the basis of this legislation, Columbia St. Mary’s moved to
dismiss Wren’s complaint and argued that § 895.4801 provided immunity from
Wren’s claims.4

3
Wren provided this court with an extensive appendix (over 300 pages) and citations in
her briefs to materials in the appendix. Our rules of appellate procedure require citations to the
record. WIS. STAT. RULE 809.19(1)(d)-(e). To the extent that the appendix contains materials
that are not contained in the record, we do not consider them. “The appendix may not be used to
supplement the record[.]” Reznichek v. Grall, 150 Wis. 2d 752, 754 n.1, 442 N.W.2d 545 (Ct.
App. 1989). “We are bound by the record as it comes to us.” Fiumefreddo v. McLean, 174
Wis. 2d 10, 26, 496 N.W.2d 226 (Ct. App. 1993).
4
As the parties calculate, the alleged immunity provided by WIS. STAT. § 895.4801
extended to July 10, 2020, and therefore, there is no dispute that the underlying events occurred
during the period of alleged immunity.

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¶6 In response to the motion to dismiss, Wren argued that WIS. STAT.
§ 895.4801 was unconstitutional because it violated several constitutional
provisions, including the First, Seventh, Fifth, and Fourteenth Amendments of the
United States Constitution, and article I, section 9 of the Wisconsin Constitution.
Wren additionally filed a supplemental response brief and argued that § 895.4801
violated equal protection principles. In reply, Columbia St. Mary’s again raised
the issue of immunity from suit under § 895.4801, and it also argued that Wren
failed to provide “notice” as required by WIS. STAT. § 806.04(11) to the attorney
general, the speaker of the assembly, the president of the senate, and the senate
majority leader of Wren’s claim involving the constitutionality of § 895.4801.5

¶7 At a hearing held on November 10, 2023, the circuit court addressed
several violations of local rules, including the timeliness of Wren’s supplemental
response brief and Wren’s failure to file copies with the circuit court of non-
Wisconsin legal authorities she relied upon. The circuit court found that Wren’s
supplemental brief was untimely and that the untimeliness was not due to
excusable neglect or for good cause. Consequently, the circuit court struck
Wren’s supplemental brief.6 The circuit court additionally provided Wren with the

5
Wren notes that Columbia St. Mary’s raised the issue of notifying the attorney general,
the speaker of the assembly, the president of the senate, and the senate majority leader for the first
time in the reply brief. However, prior to Wren’s response brief where she challenged the
constitutionality of WIS. STAT. § 895.4801, there were no constitutional issues triggering the
requirements of WIS. STAT. § 806.04(11). Therefore, we consider it immaterial that Columbia St.
Mary’s raised this argument for the first time in its reply brief.
6
Wren does not develop any argument on appeal that the circuit court erroneously struck
her supplemental brief raising the argument that WIS. STAT. § 895.4801 violates equal protection
principles. “We cannot serve as both advocate and judge,” and therefore, we do not discuss the
matter further. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992)
(declining to address issues “inadequately briefed” and “unsupported by references to legal
authority”).

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No. 2024AP126

opportunity to cure her failure to file non-Wisconsin legal authorities, and ordered
that the parties return on December 6, 2023, to address the motion to dismiss filed
by Columbia St. Mary’s.

¶8 Following the hearing, Wren filed copies of her non-Wisconsin legal
authorities. She also filed documentation stating that, on November 14 and 15,
2023, the attorney general, the speaker of the assembly, the president of the senate,
and the senate majority leader were served with copies of the summons and
complaint for this matter, as well as copies of Columbia St. Mary’s motion to
dismiss and related briefing. She further provided a letter from the attorney
general’s office dated November 29, 2023, stating:

Please be advised that we have decided not to appear in this
matter at this time. The Attorney General may seek to
appear if the issue of the constitutionality of a statute or
ordinance is raised on appeal. Therefore, we request that
the parties inform our office if the matter is appealed and
the appeal raises the issue of constitutionality.

¶9 At the hearing on December 6, 2023, the circuit court granted
Columbia St. Mary’s motion, and it issued an order dismissing Wren’s complaint.
In an oral decision at the hearing, the circuit court found that WIS. STAT.
§ 806.04(11) required naming the attorney general, the speaker of the assembly,
the president of the senate, and the senate majority leader as parties. In making
this finding, the circuit court pointed to the opening language of § 806.04(11)
stating that “all persons shall be made parties who have or claim any interest
which would be affected.” Because the attorney general, the speaker of the
assembly, the president of the senate, and the senate majority leader were not
named as parties to the action, the circuit court found that it lacked subject matter
jurisdiction. The circuit court then proceeded to find that WIS. STAT. § 895.4801

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No. 2024AP126

provided immunity from suit to Columbia St. Mary’s, and that Wren failed to meet
the burden to demonstrate that the statute was unconstitutional.

¶10 Wren now appeals.

DISCUSSION

¶11 On appeal, Wren raises two main arguments. First, Wren argues that
the circuit court erroneously found that she was required to name the attorney
general, the speaker of the assembly, the president of the senate, and the senate
majority leader as parties to fulfill the requirements of WIS. STAT. § 806.04(11).
Second, Wren argues that WIS. STAT. § 895.4801 is unconstitutional and, as such,
does not provide immunity to Columbia St. Mary’s. We address each argument in
turn.

I. Requirements of WIS. STAT. § 806.04(11)

¶12 Wren argues that the plain language of WIS. STAT. § 806.04(11)
requires only that the attorney general, the speaker of the assembly, the president
of the senate, and the senate majority leader be served with a copy of the
pleadings, and because she did this, she argues that the circuit court erroneously
found that it lacked subject matter jurisdiction.7

¶13 Wren’s argument presents a question of statutory interpretation.
“The interpretation of a statute is a question of law that we review de novo.” E-Z

7
For the sake of consistency with the terms employed by the parties and the circuit
court, we use the term subject matter jurisdiction. However, we question whether the use of
subject matter jurisdiction is the appropriate term. See Village of Trempealeau v. Mikrut, 2004
WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190 (explaining the difference between subject matter
jurisdiction and competency).

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No. 2024AP126

Roll Off, LLC v. County of Oneida, 2011 WI 71, ¶16, 335 Wis. 2d 720, 800
N.W.2d 421 (emphasis added). “[S]tatutory interpretation ‘begins with the
language of the statute. If the meaning of the statute is plain, we ordinarily stop
the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We give statutory language
“its common, ordinary, and accepted meaning.” Id. Additionally, “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.
“Statutory language is read where possible to give reasonable effect to every word,
in order to avoid surplusage.” Id.

¶14 Turning to the statute, WIS. STAT. § 806.04(11) provides:

If a statute, ordinance or franchise is alleged to be
unconstitutional, or to be in violation of or preempted by
federal law, or if the construction or validity of a statute is
otherwise challenged, the attorney general shall also be
served with a copy of the proceeding and be entitled to be
heard. If a statute is alleged to be unconstitutional, or to be
in violation of or preempted by federal law, or if the
construction or validity of a statute is otherwise challenged,
the speaker of the assembly, the president of the senate, and
the senate majority leader shall also be served with a copy
of the proceeding, and the assembly, the senate, and the
state legislature are entitled to be heard.

(Emphasis added.)

¶15 We conclude that the plain language of WIS. STAT. § 806.04(11)
requires service on the attorney general, the speaker of the assembly, the president
of the senate, and the senate majority leader, and nothing in the plain language of
the statute indicates that any of these individuals must be named as a party to
satisfy the requirements of the statute.

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No. 2024AP126

¶16 Indeed, we have previously interpreted this language from WIS.
STAT. § 806.04(11), and we stated, “The language of the statute makes it clear that
the legislature did not intend to require that the attorney general be made a party.”
Town of Walworth v. Village of Fontana-on-Geneva Lake, 85 Wis. 2d 432, 436,
270 N.W.2d 442 (Ct. App. 1978).8 Rather, “[t]he purpose of the statute is to give
the attorney general the opportunity to defend the statute, ordinance or franchise
against a claim of unconstitutionality. The attorney general can perform this
function without being made a party.” Id.

¶17 The statutory language as applied to the attorney general remains the
same today, and therefore, the requirements of WIS. STAT. § 806.04(11) are
satisfied simply by serving the attorney general with a copy of the proceedings.
Moreover, given the identical language, our prior interpretation that § 806.04(11)
does not require that the attorney general be made a party likewise applies to the
speaker of the assembly, the president of the senate, and the senate majority
leader. Thus, the plain language of § 806.04(11) similarly requires that the
speaker of the assembly, the president of the senate, and the senate majority leader

8
Wren incorrectly states that our supreme court decided Town of Walworth v. Village of
Fontana-on-Geneva Lake, 85 Wis. 2d 432, 436, 270 N.W.2d 442 (Ct. App. 1978). Town of
Walworth nonetheless applies. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246
(1997).

Additionally, Wren asserts that “hundreds” of cases have proceeded without naming the
attorney general, the speaker of the assembly, the president of the senate, and the senate majority
leader as parties. Wren is correct that in some instances these entities were not named as parties;
however, we note that a closer inspection reveals that these entities were nonetheless involved in
several of the cases cited. We further note that in other instances the State—represented by the
attorney general—was a party to the action. See, e.g., Winnebago County v. C.S., 2020 WI 33,
391 Wis. 2d 35, 940 N.W.2d 875 (amicus filed by attorney general); Mayo v. Wisconsin Injured
Patients & Fams. Comp. Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678 (amicus filed by
the attorney general on behalf of the State); State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911
N.W.2d 17 (attorney general represented the State).

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only need to be served with a copy of the proceedings and do not need to be
named as parties to satisfy the requirements of § 806.04(11).

¶18 While the language of WIS. STAT. § 806.04(11) is clear, we
nonetheless recognize that reading the language of § 806.04(11) in its full context
and considering the surrounding language and related statutes further supports a
plain language interpretation that § 806.04(11) only requires service and does not
require naming the attorney general, speaker of the assembly, president of the
senate, and senate majority leader as parties.

¶19 First, the requirements for a municipality stand in marked contrast to
the requirements for the attorney general, speaker of the assembly, president of the
senate, and senate majority leader. In reference to a municipality, WIS. STAT.
§ 806.04(11) states, “In any proceeding which involves the validity of a municipal
ordinance or franchise, the municipality shall be made a party, and shall be
entitled to be heard.” Id. (emphasis added). The language of the statute
applicable to municipalities clearly and plainly instructs that a municipality be
“made a party.” By comparing this language with the language applicable to the
attorney general, the speaker of the assembly, the president of the senate, and the
senate majority leader, it is clear that the plain language of § 806.04(11) does not
require naming any of these entities to fulfill the requirements of the statute.
Rather than state that any of these entities shall be made a party, as the statute
instructs for municipalities, § 806.04(11) instructs instead that these entities shall
be “served.”

¶20 Second, additional language in WIS. STAT. § 806.04(11) and related
statutes would become surplusage if the attorney general, the speaker of the
assembly, the president of the senate, and the senate majority leader were required

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to be named as parties. Following the language about making a municipality a
party and serving the attorney general, the speaker of the assembly, the president
of the senate, and the senate majority leader, § 806.04(11) states, “If the assembly,
the senate, or the joint committee on legislative organization intervenes as
provided under [WIS. STAT. §] 803.09(2m), the assembly shall represent the
assembly, the senate shall represent the senate, and the joint committee on
legislative organization shall represent the legislature.” (Emphasis added.)
Section 803.09(2m) then provides:

When a party to an action challenges in state or federal
court the constitutionality of a statute, facially or as
applied, challenges a statute as violating or preempted by
federal law, or otherwise challenges the construction or
validity of a statute, as part of a claim or affirmative
defense, the assembly, the senate, and the legislature may
intervene … at any time in the action as a matter of right by
serving a motion upon the parties as provided in WIS. STAT.
§ 801.14.

(Emphasis added.)

¶21 This additional language found in WIS. STAT. § 806.04(11) and WIS.
STAT. § 803.09(2m) outlining the intervention of these entities would become
mere surplusage if the statutory language at issue here was read to require more
than service and instead automatically require the naming of the attorney general,
the speaker of the assembly, the president of the senate, and the senate majority
leader as parties at the outset.

¶22 Consequently, we conclude that the plain language of WIS. STAT.
§ 806.04(11) only requires service on the attorney general, the speaker of the
assembly, the president of the senate, and the senate majority leader, and it does
not require naming any of these entities as parties.

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¶23 We further conclude that the circuit court erroneously found that it
lacked subject matter jurisdiction because Wren did not name any of these entities
as parties. See Walt v. City of Brookfield, 2015 WI App 3, ¶36 n.7, 359 Wis. 2d
541, 859 N.W.2d 115 (stating that a failure to comply with § 806.04(11) results in
a lack of subject matter jurisdiction). The record clearly indicates that Wren
provided the required service on November 14 and 15, 2023, and having fulfilled
the service requirements of § 806.04(11), the circuit court erroneously found that it
lacked subject matter jurisdiction over Wren’s complaint.9

II. Constitutionality of WIS. STAT. § 895.4801

¶24 As previously noted, on April 15, 2020, during the COVID-19
pandemic, the legislature passed WIS. STAT. § 895.4801, titled “Immunity for
Health Care Providers During COVID-19 Emergency.” See 2019 Wis. Act 185,
§ 98. According to the accompanying Act Memo from the Wisconsin Legislative
Council, the legislature passed 2019 Wis. Act 185 as part of the State of
Wisconsin’s response to the state of emergency created by the COVID-19
pandemic.10 The act addressed several areas of concern including those related to
state funding, unemployment assistance, worker’s compensation, education, and
other financial relief for households impacted by COVID-19. Specifically related
to the health care and health care insurance industries, the act contained several

9
Citing to the letter from the attorney general to Wren, Columbia St. Mary’s contends
that Wren failed to satisfy her obligation to notify the attorney general of the appeal in this case.
WISCONSIN STAT. § 806.04(11), however, contains no duty to keep the attorney general updated
on the status of a case involving a constitutional claim.
10
The Act Memo can be found at https://docs.legis.wisconsin.gov/2019/related/lcactme
mo/act185.pdf. A more detailed Information Memo accompanying 2019 Wis. Act 185 from the
Wisconsin Legislative Council can be found at https://docs.legis.wisconsin.gov/misc/lc/informati
on_memos/2020/im_2020_05.

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provisions, including provisions relaxing credentialing requirements for certain
health care professionals, suspending credential renewing requirements for
emergency medical services personnel, provisions providing civil liability
exemptions for the manufacture, distribution, and sale of medical supplies, and
provisions related to insurance coverage for COVID-19 testing.

¶25 Returning to the immunity statute at issue here for health care
providers, WIS. STAT. § 895.4801(2) as enacted provides:

Subject to sub. (3), any health care professional, health care
provider, or employee, agent, or contractor of a health care
professional or health care provider is immune from civil
liability for the death of or injury to any individual or any
damages caused by actions or omissions that satisfy all of
the following:

(a) The action or omission is committed while the
professional, provider, employee, agent, or contractor is
providing services during the state of emergency declared
under [WIS. STAT. §] 323.10 on March 12, 2020, by
executive order 72, or the [sixty] days following the date
that the state of emergency terminates.

(b) The actions or omissions relate to health services
provided or not provided in good faith or are substantially
consistent with any of the following:

1. Any direction, guidance, recommendation, or other
statement made by a federal, state, or local official to
address or in response to the emergency or disaster
declared as described under par. (a).

2. Any guidance published by the department of health
services, the federal department of health and human
services, or any divisions or agencies of the federal
department of health and human services relied upon in
good faith.

(c) The actions or omissions do not involve reckless or
wanton conduct or intentional misconduct.

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¶26 Wren argues that WIS. STAT. § 895.4801 is unconstitutional because
of the broad immunity that it provides to health care professionals and health care
providers for acts and omissions that would ordinarily have served as the basis for
medical malpractice and related claims, such as the ones Wren brings here. She
specifically argues that § 895.4801 violates the due process protections of the Fifth
and Fourteenth Amendments of the United States Constitution and the right to
seek a remedy provision of article I, section 9 of the Wisconsin Constitution.
Wren further argues that the United States and Wisconsin Constitutions expressly
preclude laws like § 895.4801 from preventing citizens from seeking justice.

¶27 We review a challenge to the constitutionality of a statute de novo.
Blake v. Jossart, 2016 WI 57, ¶26, 370 Wis. 2d 1, 884 N.W.2d 484. As part of
our review, we presume that the statute is constitutional. State v. Wood, 2010 WI
17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63.

¶28 Challenges to the constitutionality of a statute are generally of two
types: (1) facial challenges or (2) “as applied” challenges. Blake, 370 Wis. 2d 1,
¶26. Columbia St. Mary’s asserts that Wren has made a facial challenge to WIS.
STAT. § 895.4801. Wren has not clearly identified the type of challenge she makes
in her briefing on appeal; however, she did represent to the circuit court below that
she was making a facial challenge to the statute. Thus, we accept that Wren
makes a facial challenge to the constitutionality of § 895.4801. “To succeed on a
claim that a law is unconstitutional on its face, the challenger must demonstrate
that the State cannot enforce the law under any circumstances.” Blake, 370
Wis. 2d 1, ¶26.

¶29 Additionally, we must decide whether Wren’s challenge to WIS.
STAT. § 895.4801 requires the application of strict scrutiny or rational basis

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review. See Blake, 370 Wis. 2d 1, ¶48. Wren argues that § 895.4801 deprived her
of a fundamental right, thereby triggering strict scrutiny. In response, Columbia
St. Mary’s accepts Wren’s argument that § 895.4801 implicates the fundamental
right to a jury trial provided in article I, section 5 of the Wisconsin Constitution
and also analyzes the constitutionality of § 895.4801 using strict scrutiny. Thus,
we operate on the premise that Wren’s challenge is one involving a fundamental
right to a jury trial provided by of the Wisconsin Constitution.11

¶30 To be sure, an individual has long enjoyed the ability to pursue a
medical malpractice claim, subject to certain statutes of limitations, statutes of
repose, and other legislatively imposed rules, including the oft-litigated
noneconomic damages cap. See, e.g., Aicher ex rel. LaBarge v. Wisconsin
Patients Comp. Fund, 2000 WI 98, ¶¶44, 53-54, 237 Wis. 2d 99, 613 N.W.2d 849
(addressing the constitutionality of statutes of limitations and statutes of repose for
a medical malpractice claim); Mayo v. Wisconsin Injured Patients & Fams.
Comp. Fund, 2018 WI 78, ¶¶1-2, 383 Wis. 2d 1, 914 N.W.2d 678 (addressing the

11
We limit our discussion to Wren’s argument that WIS. STAT. § 895.4801 deprived her
of her right to a jury trial provided in article I, section 5 of the Wisconsin Constitution, and
therefore, we do not discuss any argument that Wren purports to raise premised on violations of
other constitutional provisions, including the First and Seventh Amendments of the United States
Constitution, or any argument that the statute is unconstitutionally vague because it fails to define
the term “good faith.” See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App.
1989) (“[C]ases should be decided on the narrowest possible ground[.]”). Furthermore, we note,
as both Columbia St. Mary’s and the amicus brief filed by the Wisconsin Association for Justice
note, Wren has incorrectly identified the right to a jury trial provided by the Seventh Amendment
of the United States Constitution as applicable to her claims. See Village Food & Liquor Mart v.
H & S Petroleum, Inc., 2002 WI 92, ¶7 n.3, 254 Wis. 2d 478, 647 N.W.2d 177 (“[I]t has been
long-decided … that the Seventh Amendment to the U.S. Constitution does not apply to actions
in state court.”). Rather, the right to a jury trial provided in article I, section 5 of the Wisconsin
Constitution would apply, which states, “The right of trial by jury shall remain inviolate, and shall
extend to all cases at law without regard to the amount in controversy[.]”

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constitutionality of a noneconomic damages cap for a medical malpractice claim);
see also WIS. STAT. §§ 893.55, 893.56, ch. 655.

¶31 The challenged legislation here, however, is one of immunity and
serves a purpose different from those served by a statute of limitations, statute of
repose, or damages cap. Unlike a statute of limitations, statute of repose, and
other statutory restrictions on medical malpractice claims addressed by prior
courts, immunity provides a complete shield from liability for health care
professionals and health care providers for an act or omission that would otherwise
serve as the basis for a claim. See Willow Creek Ranch, L.L.C. v. Town of
Shelby, 2000 WI 56, ¶¶35-36 & n.11, 235 Wis. 2d 409, 611 N.W.2d 693
(recognizing that immunity operates as a shield from tort liability and allows an
individual to perform a specific function without threat of liability).
Consequently, WIS. STAT. § 895.4801, as an immunity statute for health care
professionals and health care providers, completely eliminates any opportunity for
a jury trial on one’s claims related to an act or omission of a health care
professional or health care provider for an individual, like Wren, who would
otherwise be able to pursue a claim.

¶32 In other words, WIS. STAT. § 895.4801 is more than a mere
limitation or restriction on Wren’s ability to pursue her claims as a statute of
limitations or statute of repose would be. Instead, § 895.4801 is the complete
elimination of Wren’s ability to pursue her claims by completely shielding health
care professionals and health care providers from liability for anything short of
acts or omissions involving reckless or wanton conduct or intentional misconduct.
The right of access to the courts and the opportunity to have a jury trial has not
been preserved in any capacity, and therefore, we consider that Wren’s claim
triggers strict scrutiny because it involves the complete and utter elimination of her

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fundamental right to pursue a jury trial on what would otherwise have been an
actionable claim for an allegation of a negligent act or omission absent WIS. STAT.
§ 895.4801. See State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 507, 261
N.W.2d 434 (1978) (declining to apply strict scrutiny because “[t]he right of
access to the courts, where petitioners will have an opportunity for jury trials, is
expressly preserved”).

¶33 When challenged legislation implicates either a fundamental right or
discriminates against a suspect class, we apply strict scrutiny. State v. Alger, 2015
WI 3, ¶39, 360 Wis. 2d 193, 858 N.W.2d 346. “A law subject to strict scrutiny
will be upheld ‘only if narrowly tailored to serve a compelling state interest.” Id.
(citation omitted). A law survives strict scrutiny only in rare cases. State v.
Baron, 2009 WI 58, ¶48, 318 Wis. 2d 60, 769 N.W.2d 34. In this case, we
conclude that, even assuming WIS. STAT. § 895.4801 served the compelling state
interest of responding to the COVID-19 pandemic, the statute is not narrowly
tailored in furtherance of this purpose, and therefore, it does not survive strict
scrutiny.

¶34 There seems to be no dispute that WIS. STAT. § 895.4801 is broadly
written and sweeping in the immunity it provides. As the statute provides, health
care professionals and providers have immunity for any acts or omissions so long
as those acts or omissions were in good faith and occurred during the state of
emergency, or within sixty days thereafter. Sec. 895.4801(2)(a)-(b). The
language of the statute excludes from immunity only those acts or omissions that
involve reckless or wanton conduct or intentional misconduct. Sec.

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895.4801(2)(c). There is no requirement that the acts or omissions have any nexus
to the state of emergency declared in response COVID-19.12

¶35 Wren argues that the broad and sweeping nature of this immunity
renders WIS. STAT. § 895.4801 unconstitutional because it completely eliminated
her ability to seek a jury trial and pursue her claims against Columbia St. Mary’s
when her claims are unrelated to the state’s response to the COVID-19 pandemic.
She contends that she should not be denied the right to a jury trial on her claims
simply because they arose during the state of emergency that Governor Evers
declared in response to the COVID-19 pandemic.

¶36 By contrast, Columbia St. Mary’s argues that the broad nature of the
immunity was necessary in the face of the challenges presented to the health care
industry during the state of emergency created by the COVID-19 pandemic—
including those related to staffing and supply shortages—and providing immunity
for all acts and omissions so long as they were taken in good faith was necessary
to ensure the availability of health care services of all kinds during the state of
emergency.

¶37 While we acknowledge that the health care system faced unique
challenges during the COVID-19 pandemic, “[t]here is no pandemic exception …
to the fundamental liberties the [c]onstitution safeguards. Indeed, ‘individual
rights secured by the [c]onstitution do not disappear during a public health crisis.’”

12
In fact, the original version of the statute introduced in the Assembly as 2019 A.B.
1038 provided immunity for “actions or omissions taken in providing services to address or in
response to a 2019 novel coronavirus outbreak[.]” This limiting language was struck by a later
amendment introduced as Assembly Amendment 4. See Wisconsin Legislative Council,
Amendment Memo (Apr. 15, 2020), https://docs.legis.wisconsin.gov/2019/related/lcamendmemo/
ab1038.pdf.

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Wisconsin Legislature v. Palm, 2020 WI 42, ¶53, 391 Wis. 2d 497, 942 N.W.2d
900 (citation omitted). In other words, Wren’s right to a jury trial on her claims
did not disappear as a result of the state of emergency created by the COVID-19
pandemic when the reason for her claims is unrelated to the compelling state
interest of responding to COVID-19 that underlies the statute. Simply because
Wren was pregnant and had a baby during a pandemic does not make any health
care she received related to COVID-19 and the state’s response to it, and she
cannot be denied a right to a jury trial on her claims when her medical care was
unrelated to the compelling state interest behind the statute. Therefore, we
conclude that the breadth of the immunity provided by WIS. STAT. § 895.4801 is
not narrowly tailored to the compelling state interest that prompted the statute
when it denies the right to a jury trial for claims involving medical care that was
provided for a reason other than the treatment of COVID-19.

¶38 Columbia St. Mary’s argues that the statute was narrowly tailored
because it was limited in time. We are not persuaded that the statute’s time limit
renders the statute constitutional. See Palm, 391 Wis. 2d 497, ¶27 (rejecting “a
specific, limited-in-time scenario” as “questionable and not relevant”). As Wren
asserts, at the time the statute was passed, it was unclear how long the pandemic
would last and, as a result, unclear how long the statute would ultimately pause the
right to a jury trial and provide immunity to the health care industry for negligent
acts or omissions that would have ordinarily served as the basis for claims, such as
the ones Wren brings here. Thus, the fact that the immunity has since ended with
the conclusion of the state of emergency created by the COVID-19 pandemic
cannot save the statute.

¶39 Furthermore, even with a time limit, the fact of the matter remains
that the statute, for a brief period of time, eliminated a patient’s ability to seek a

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jury trial for any negligent acts or omissions of a health care provider, without
requiring that the care provided have a nexus with the stated compelling interest of
responding to the COVID-19 pandemic. The fact that the statute was limited in
time simply means that the state’s compelling state interest prompting the statute’s
creation ended with the end of the state of emergency, and it has no bearing on
whether the statute was ultimately narrowly tailored to meet the compelling state
interest in the first place.

CONCLUSION

¶40 Accordingly, we reverse the circuit court’s order dismissing Wren’s
complaint, and we remand this matter for further proceedings consistent with this
opinion. We conclude that the circuit court erroneously dismissed Wren’s
complaint based on a failure to name the attorney general, the speaker of the
assembly, the president of the senate, and the senate majority leader under WIS.
STAT. § 806.04(11). The plain language of the statute requires service, and having
provided service in this matter, Wren satisfied the requirements of the statute. We
further conclude that WIS. STAT. § 895.4801 is unconstitutional and does not
provide immunity to Columbia St. Mary’s from Wren’s claims.

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

Recommended for publication in the official reports.

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