Background Facts
At the time of plaintiff 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. 2019 Wis. Act 185, § 98. On the basis of this legislation, defendant Columbia St. Mary’s moved to dismiss Wren’s complaint and argued that § 895.4801 provided immunity from Wren’s birth injury medical malpractice claims.
The circuit court found that WIS. STAT. § 895.4801 provided immunity from suit to Columbia St. Mary’s, and that Wren failed to meet the burden to demonstrate that the statute was unconstitutional.
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.
Wren argued 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 brought. She specifically argued 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 argued that the United States and Wisconsin Constitutions expressly preclude laws like § 895.4801 from preventing citizens from seeking justice.
The Wisconsin Court of Appeals stated in its February 11, 2025 Decision: “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. 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 … 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.”
“[A]t 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.”
“[E]ven 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 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.”
The Wisconsin Court of Appeals held: “We further conclude that WIS. STAT. § 895.4801 is unconstitutional and does not
provide immunity to Columbia St. Mary’s from Wren’s claims.”
Source Wren v. Columbia St. Mary’s Hospital Milwaukee, Inc., Appeal No. 2024AP126.
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