State justices consider whether pandemic immunity laws improperly block malpractice suits involving non-COVID care.
The Wisconsin Supreme Court is weighing a case that could determine whether a COVID-19 emergency statute shields health care providers from negligence lawsuits unrelated to the virus. The dispute stems from the 2020 stillbirth of a baby delivered at Ascension Columbia St. Mary’s Hospital in Milwaukee and the subsequent malpractice claim filed by the child’s mother, Savannah Wren. Arguments before the high court, held in late October, focused on whether the law unlawfully restricted Wren’s constitutional right to a jury trial.
Wren’s complaint, filed in mid-2023, accuses her physicians of improperly managing her pregnancy, specifically related to her preexisting Type II diabetes. The lawsuit claims that medical staff delayed induction despite risk factors documented in the weeks before delivery. According to the filing, clinicians noted elevated fetal heart rates and persistent high maternal glucose measurements but opted against earlier intervention. Wren first visited the hospital on May 23, 2020, reporting contractions, but was discharged after several hours. She returned the next day for a scheduled induction at 40 weeks and one day gestation. Hospital staff were unable to detect a fetal heartbeat, leading to an emergency cesarean section. Her son was pronounced dead shortly thereafter. The cause of death was determined to be placental abruption.
Hospital attorneys argue that a state law passed in April 2020, approximately six weeks before Wren’s delivery, blocks the claims. The statute granted health care providers temporary immunity from negligence lawsuits during the state’s COVID-19 emergency period, lasting until 60 days after the termination of that emergency declaration. Though enacted in direct response to anticipated strain on the health system, its language applies broadly to all care provided during that window, regardless of whether the treatment was related to COVID-19.
A Milwaukee County judge dismissed Wren’s lawsuit in late 2023, citing the immunity statute. However, the Wisconsin Court of Appeals reversed that ruling in February, concluding that the dismissal deprived Wren of a potential jury trial and raising constitutional concerns about the statute’s reach. The appellate panel wrote that constitutional rights do not evaporate during public health crises, noting the importance of maintaining access to civil remedies.
The Wisconsin Supreme Court’s review centers on whether the legislature exceeded its authority by suspending ordinary malpractice liability. Legal scholars say that legislatures generally hold wide latitude to modify tort law, including limiting or expanding access to civil claims. Some analysts predict that challenging pandemic-era immunity laws will remain difficult for plaintiffs, given courts’ historic reluctance to override legislative judgments made during emergencies.
Similar challenges have surfaced across the country, with varied outcomes. Courts in Louisiana upheld that state’s immunity protections, concluding that lawmakers acted within their authority to prioritize hospital operations during the early months of the pandemic. Michigan’s Court of Appeals, by contrast, ruled that its immunity statute applied only to conduct directly tied to pandemic response efforts, narrowing its scope. Indiana’s high court is also considering a separate case involving a patient who died after developing an infection while hospitalized with COVID-19.
The Wisconsin Supreme Court heard arguments as part of its “Justice on Wheels” program, which periodically convenes sessions outside Madison. Several justices questioned how pandemic-era immunity differs from longstanding workers’ compensation systems, which similarly limit individuals’ ability to pursue negligence claims. The court will issue its decision by the end of its current term in June. If the justices ultimately reinstate the trial court’s dismissal, Wren’s attorneys have indicated they may seek further review of unresolved legal questions.
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Baby’s death at Columbia St. Mary’s tests Wisconsin COVID immunity law
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