Background
Charlie May Brekke was born in November 2015 via a surrogate, Samantha, who had been diagnosed with gestational diabetes during the pregnancy. Charlie weighed eleven pounds, five ounces at birth. During delivery — a vaginal delivery — complications arose from shoulder dystocia, leaving Charlie with a permanent brachial plexus injury. Dr. Craig M. Batley, who delivered Charlie and provided Samantha with prenatal care, had conducted monitoring, ultrasounds, and other care directed at Charlie throughout the pregnancy.
Through a guardian ad litem, Charlie sued Dr. Batley and his insurer, Midwest Medical Insurance Co., on two theories: negligence in handling the pregnancy and delivery, and failure to obtain informed consent under Wis. Stat. § 448.30 — specifically, failure to disclose the risk of shoulder dystocia and the availability of a cesarean section. Dr. Batley moved for partial summary judgment on the informed consent claim, arguing that under § 448.30 his duty ran only to Samantha as the patient, not to Charlie, and that Samantha — who was not a plaintiff — was the only person who could bring such a claim. The Winnebago County Circuit Court agreed and dismissed the informed consent claim; the negligence claim proceeded to trial and the jury found Dr. Batley not negligent.
Charlie appealed, and the court of appeals certified a single question to the Wisconsin Supreme Court: whether an unborn child (or any minor child) is a “patient” under § 448.30 and thus entitled to informed consent with an independent right to sue. The Supreme Court accepted certification, which operated as a full bypass giving it jurisdiction over all issues on appeal.
The Court’s Holding
The Wisconsin Supreme Court, in a majority opinion authored by Chief Justice Karofsky, reversed the circuit court’s grant of partial summary judgment and remanded for further proceedings on Charlie’s informed consent claim. The court held that Charlie was Dr. Batley’s patient under § 448.30 before her birth. Because Dr. Batley indisputably provided medical care directed at Charlie — monitoring her condition, performing ultrasounds, and preparing to intervene — Charlie fell within the ordinary meaning of “patient” as one who receives medical care. The court found support in prior Wisconsin decisions recognizing that an unborn child during the birthing process can be a “patient,” and reasoned that because Dr. Batley concededly owed Charlie a duty of reasonable care and professional obligations in negligence, there was no logical basis to exclude her from the statute’s informed consent duty.
The court further held that two statutory exceptions invoked by Dr. Batley — § 448.30(2) (no duty to disclose detailed technical information a patient would not understand) and § 448.30(6) (no duty to disclose where the patient is incapable of consenting) — do not categorically relieve a physician of the duty to inform when treating minor or unborn children. The court read § 448.30(2) as addressing a category of information, not the patient’s capacity, and read § 448.30(6) narrowly, rejecting an interpretation that would eliminate the statute’s duty entirely for all minors and incompetent persons — a construction that would allow the exception to swallow the rule. Instead, the duty to inform runs to whoever is authorized to make medical decisions on the patient’s behalf; here, Samantha was both capable of consenting and the appropriate decisionmaker for Charlie.
Finally, the court held that Charlie’s informed consent claim is not derivative of any claim Samantha might bring and that Samantha need not be joined as a party. Dr. Batley owed two independent duties under § 448.30 — one to Samantha on her own behalf and one to Samantha on Charlie’s behalf. Because Charlie was born alive, the conditional liability that attached during the pregnancy became actionable in Charlie’s own name, and the elements of her claim — duty to Charlie, breach as to Charlie, causation, and damages to Charlie — are distinct from any claim Samantha could assert.
Key Takeaways
- An unborn child who receives medical care during pregnancy and delivery can be a “patient” under Wis. Stat. § 448.30 and may bring an independent informed consent claim if born alive.
- The § 448.30(6) exception for patients “incapable of consenting” does not categorically bar informed consent claims for all minors or incompetent persons; the physician’s duty to inform runs to the authorized decisionmaker (parent, guardian, or surrogate).
- An unborn child’s informed consent claim is not derivative of the birth mother’s claim — the physician owes independent duties to each — and the birth mother need not be joined as a plaintiff or bring her own suit for the child’s claim to survive.
- When a certified question is accepted by the Wisconsin Supreme Court as a bypass under Wis. Stat. § 808.05, the court takes jurisdiction over the entire appeal and is not limited to answering only the certified question.
Why It Matters
This decision breaks new ground in Wisconsin medical malpractice law by confirming that the § 448.30 informed consent duty extends to unborn children as patients in their own right — not merely as an adjunct to the pregnant patient’s claim. Physicians who provide prenatal care must now understand that their disclosure obligations run not only to the pregnant patient but also, through that patient, to the unborn child being treated. The ruling closes what could otherwise be a significant gap: a physician who negligently withholds information material to the child’s well-being could escape all informed consent liability simply because the birth mother chose not to sue.
The case also clarifies the scope of § 448.30’s incapacity exception, rejecting a broad reading that would have immunized physicians from informed consent liability any time a patient could not personally understand or consent to treatment — a category encompassing not just fetuses but young children and adults with cognitive impairments. Practitioners and insurers across Wisconsin should revisit their informed consent protocols for obstetric and pediatric care in light of this ruling, as plaintiffs’ counsel will likely invoke it to support independent claims on behalf of minor and incapacitated patients going forward.