Wisconsin’s COVID-19 Immunity Statute Ruled Unconstitutional by Court of Appeals 
Myranda Stencil, Coyne, Schultz, Becker & Bauer, S.C.

On February 11, 2025, the Wisconsin Court of Appeals issued a formative decision on Wisconsin’s COVID immunity statute, Wis. Stat. § 895.4801. In Wren v. Columbia St. Mary’s Hospital Milwaukee, Inc., the court of appeals held that Wis. Stat. § 895.4801—which provided broad immunity to healthcare providers for negligent acts or omissions which occurred during the COVID-19 pandemic—is unconstitutional because it is not narrowly tailored to serve the compelling state interest of responding to the pandemic when applied to claims unrelated to COVID-19.[i]  A petition for review was filed on March 13, 2025. As of the date of this publication, the Wisconsin Supreme Court has not yet accepted the case for review. Unless the decision is accepted for review and reversed by the Wisconsin Supreme Court, Wren will act to preclude any immunity defense under Wis. Stat. § 895.4801.

I.              Procedural Posture 

Savannah Wren, both individually and as the personal representative of the Estate of Calvin Gordon, Jr., and Calvin Gordon (collectively “Wren”) filed a medical malpractice lawsuit against Columbia St. Mary’s Hospital Milwaukee, Inc., Jessica Hoelzle, M.D., Jordan Hauck, D.O., and the Injured Patients and Families Compensation Fund (collectively “Columbia St. Mary’s”) related to the care she received during her pregnancy and the death of her newborn son in May 2020 during the COVID-19 pandemic.[ii] 

Columbia St. Mary’s moved to dismiss the lawsuit, arguing that Wis. Stat. § 895.4801 provided them immunity from liability.[iii] After Wren raised constitutional challenges to the COVID immunity statute, Columbia St. Mary’s also argued that she failed to provide “notice” as required by Wis. Stat. § 806.04(11).[iv]

The circuit court dismissed Wren’s complaint, finding that she failed to name the required parties under Wis. Stat. § 806.04(11), that Wis. Stat. § 895.4801 provided immunity to Columbia St. Mary’s, and that Wren failed to meet the burden of demonstrating that the statute was unconstitutional.[v]

Wren appealed the circuit court’s order granting the motion to dismiss filed by Columbia St. Mary’s, arguing that the circuit court erroneously found that Wis. Stat. § 806.04(11) 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.[vi] She also argued that the circuit court erroneously found that Columbia St. Mary’s was entitled to immunity under Wis. Stat. § 895.4801, and that Wis. Stat. § 895.4801 is unconstitutional.[vii]

II.            Controlling Law

Wis. Stat. § 806.04(11) establishes service requirements for constitutional challenges. Wis. Stat. § 806.04(11) provides, in pertinent part: 

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.

Wis. Stat. § 895.4801 established immunity for health care providers for certain acts or omissions beginning on March 12, 2020, and lasting for sixty days following the end of the state of emergency.[viii] Wis. Stat. § 895.4801 provides, in pertinent part:

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 s. 323.10 on March 12, 2020, by executive order 72, or the 60 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.

III.          Legal Reasoning  

On the requirements of Wis. Stat. § 806.04(11), the court of appeals concluded 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.[ix] The court of appeals recognized that the statutory language had previously been interpreted to mean that the legislature did not intend to require that the attorney general be made a party, which was applicable to the speaker of the assembly, the president of the senate, and the senate majority leader as well.[x] The court also recognized that rather than stating that any of these entities shall be made a party, as the statute instructs for municipalities, Wis. Stat. § 806.04(11) instructs instead that these entities shall be “served.”[xi] Finally, the court concluded that the additional language found in Wis. Stat. § 806.04(11) and Wis. Stat. § 803.09(2m) regarding the intervening of parties would be surplusage if the statutory language required more than service.[xii] 

On the constitutionality of Wis. Stat. § 895.4801, the court of appeals concluded that the statute was unconstitutional as it was not narrowly tailored because its broad immunity applied even to claims unrelated to COVID-19, which was the compelling state interest.[xiii] The court of appeals applied strict scrutiny to Wren’s facial challenge of the statute as the statute implicated the fundamental right to a jury trial provided in Article I, Section 5 of the Wisconsin Constitution.[xiv] The court recognized that the challenged legislation was different than a statute of limitations, statute of repose, or other statutory restrictions on medical malpractice claims, as it was an immunity statute for health care professionals and health care providers that completely eliminates any opportunity for a jury trial on one’s claims.[xv] The court noted that the statute completely shields health care professionals and providers from liability for anything short of acts or omissions involving reckless or wanton conduct or intentional misconduct.[xvi] A law subject to strict scrutiny will be upheld only if narrowly tailored to serve a compelling state interest.[xvii]

The court concluded 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.[xviii] The court reasoned that the statute was broadly written and sweeping in the immunity it provides and there was no requirement that the acts or omissions have any nexus to the state of emergency declared in response to COVID-19.[xix] While the court acknowledged that the health care system faced unique challenges during the pandemic, it concluded that 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.[xx] The court reasoned that 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.[xxi] The fact that the statute was limited in time had no bearing on whether the statute was narrowly tailored to meet the compelling state interest in the first place.[xxii]

IV.          Conclusion

The court of  appeals held that the plain language of Wis. Stat. § 806.04(11) requires only service on the attorney general, speaker of the assembly, president of the senate, and senate majority leader, and does not require naming them as parties.

The court of appeals also held that Wis. Stat. § 895.4801, which provided immunity to healthcare providers for negligent acts or omissions during the COVID-19 pandemic, is unconstitutional because it is not narrowly tailored to serve the compelling state interest of responding to the pandemic when applied to claims unrelated to COVID-19.

The court of appeals reversed the circuit court’s order dismissing Wren’s complaint and remanded the case for further proceedings.

On March 13, 2025, a petition for review was filed with the Wisconsin Supreme Court. As of the date of this publication, the supreme court has not yet accepted the case for review.

Author Biography: 

Myranda Stencil is an associate at Coyne, Schultz, Becker & Bauer, S.C. in Madison. She practices in civil litigation defense. She received her B.A. in 2014 from the University of Wisconsin-Madison and her J.D. in 2017 from the University of Wisconsin Law School, where she graduated cum laude. Myranda is admitted to practice in Wisconsin state and federal courts. She is a member of the Wisconsin Defense Counsel.