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High court honors wrongful death claim, affirms court of appeals decision

The Wisconsin Supreme Court has affirmed a court of appeals decision for a wrongful death suit. The ruling came Friday after the defendants filed a petition for review with the high court following the appeal decision in favor of plaintiff Kim Andruss in Estate of Oros v. Divine Savior Healthcare, Inc.

Anne Oros, 88 at the time, was admitted to Divine Savior’s community-based residential facility in January 2015. With a preexisting Alzheimer’s diagnosis, Oros suffered from four falls at the Portage facility between April and December 2015. She fell for a fifth time in February 2016, and fell again a few weeks later sustaining a head injury. She was then diagnosed with a subdural hematoma.

She died in May 2016 while in hospice care. According to the opinion, during each of Oros’s falls at CBRF, she was not an admitted patient at either Divine Savior’s hospital or its nursing home.

In March 2018, Andruss, Oros’s adult daughter, filed a negligence and wrongful death claim against Divine Savior in the Columbia County Circuit Court, alleging 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.

The defendants filed a Motion for Application of Wisconsin Chapter 655, requesting a dismissal of the claim in June 2019 on the basis that Andruss cannot bring a wrongful death claim as an adult child of Oros and the liability protections given in Chapter  655 bar her claim.

According to the court documents, the Columbia County Circuit Court indicated that it believed Chapter 655 must apply to the entire Divine Savior entity, including its CBRF. The court ruled in January 2020, granting the defendant’s application, denying Andruss’ motion for reconsideration, and dismissing the claims Andruss brought in her individual capacity.

The court of appeals reversed the decision, reasoning that CBRFs were not covered by Chapter 655 and interpreted the defendants’ Motion for the Application of Chapter 655 as a motion to dismiss for failure to state a claim, making the dismissal not warranted.

The defendants filed a petition for review with the Wisconsin Supreme Court, and in April 2021, the petition was granted. Ruling in favor of the plaintiffs, the high court unanimously agreed that the basis of Andruss’ claim against the CBRF falls outside the liability protections of Chapter 655, even if they share common ownership with hospitals and nursing homes.

Justice Annette Ziegler delivered the majority opinion.

Drew De Vinney of Martin Law Office represented the plaintiffs. Samuel Leib of Leib, Knott, Gaynor represented the defendants.


About Ali Teske

Ali Teske is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or ateske@wislawjournal.com.

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