April 22, 2026 – A statute immunizing health care professionals during the COVID-19 state of emergency did not violate the constitutional right to a jury trial, a unanimous Wisconsin Supreme Court recently ruled in Wren v. Columbia St. Mary’s Hospital Milwaukee, Inc. (2026 WI 11), barring a medical malpractice lawsuit from a stillborn childbirth.

Because the Wisconsin Constitution “empowers the [L]egislature to alter or suspend particular common law causes of action,” the immunity statute suspended Savannah Wren’s cause of action, Chief Justice Jill J. Karofsky wrote.

“Without a cause of action here, there is no jury trial right,” and the statute “does not violate the constitutional right to a jury.”

Pandemic Birth

Gov. Tony Evers declared a state of emergency because of the COVID-19 pandemic on March 12, 2020.

The Legislature followed a month later in passing 2019 Wisconsin Act 185, which created Wis. Stat. section 895.4801.

The law granted immunity from civil liability to “any health care professional” for acts or omissions related to health services conducted consistent with guidance during the state of emergency and extending 60 days after the state of emergency ended.

The state of emergency terminated on May 11, 2020, meaning that the statute protected health care professions through July 11.

Wren had a “high risk” pregnancy that “required close monitoring.” Two times in the month before her due date, Wren met with her health care professionals about symptoms that worried her.

“Her medical providers sent her home on both occasions.”

She went to Columbia St. Mary’s Hospital with contractions, but medical staff discharged her a few hours later.

The next day, when she returned to the hospital for a scheduled induction, medical staff could not detect a fetal heartbeat. The baby was stillborn.

Wren argued that the three medical visits and the failure to schedule a timely induction were medical malpractice.

The defendants sought dismissal based on the immunity statute.

Wren replied that the statute was unconstitutional as overbroad and vague under federal and Wisconsin constitutions, violated due process, and violated the right to a jury trial.

Milwaukee County Circuit Court dismissed the case based on the immunity statute.

Wren appealed to the Wisconsin Court of Appeals, which held that the statute “deprived Wren of her right to a jury trial” under the Wisconsin Constitution by failing strict scrutiny.

Constitutional Sections

Two sections of the Wisconsin Constitution governed the analysis of whether the statute unconstitutionally eliminated the right to a jury trial.

Wren appealed based on Wis. Const. article I, section 5, which states that the “right of trial by jury shall remain inviolate.”

The Supreme Court’s analysis, however, pointed to another constitutional section at issue.

Wisconsin Const. article XIV, section 13 allows that “[s]uch parts of the common law as are now in force” in 1848 “not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the [L]egislature.”

The latter constitutional section “permits the [L]egislature to enact” Wis. Stat. section 895.4801 that “suspends Wren’s asserted common law causes of action,” noted Chief Justice Jill Karofsky, who wrote the unanimous opinion.

As held in previous caselaw, “[t]he [L]egislature’s authority includes the power to define and limit causes of action and to abrogate common law on policy grounds.”

With the legislature having power under the Wisconsin Constitution to eliminate medical malpractice liability, “[o]nce Wren’s causes of action have been suspended, the right to a jury trial does not attach.”

As a result, “she has pled no viable cause of action against the defendants upon which the right to a jury trial could attach.”

‘Our Holding Is Consistent’

This decision is not the first time the issue has come up in Wisconsin.

“Our holding is consistent with precedent determining that the Worker’s Compensation Act, which eliminates certain common law claims against employers, does not violate a claimant’s right to a jury trial.”

Because worker’s compensation “provides the exclusive remedy for employees” for work-related injuries, “employers have ‘no common law tort liability’ to their employees.”

Even though the Worker’s Compensation Act provides an alternative remedy, it doesn’t provide a right to jury trial, precedent held.

As the Supreme Court noted, the Court of Appeals’ holding that the immunity statute violated the constitution “necessarily calls into question the constitutionality of numerous other instances in which the [L]egislature eliminated common law causes of action.”

Some of those other statutes include recreational immunity, immunity for preventing or mitigating the spill of a hazardous substance, and “immunity for rendering emergency medical assistance at the scene in good faith.”

“[B]ecause the right to a jury trial does not attach to Wren’s asserted causes of action in this lawsuit, [Wis. Stat. section 895.4801] does not implicate Wren’s constitutional right to a jury trial, and our analysis ends.”

Other Issues on Remand?

Other issues in the case may require Court of Appeals consideration, justifying the Supreme Court’s remand.

The Court of Appeals limited its analysis to the state constitutional right to a jury trial.

Wren also argued at the Court of Appeals that the statute deprived her of constitutional rights under the First and Seventh Amendments of the U.S. Constitution and was unconstitutionally vague for not defining good faith.

Defendants and an amicus brief, however, argued that Wisconsin precedent holds that the Seventh Amendment right to a jury trial doesn’t apply to state court.

The Circuit Court also struck Wren’s supplemental response, which the court held was untimely, that argued the statute violates equal protection principles.

Whether those are matters that need to be addressed is in the hands of the Court of Appeals.