The judges ruled that a child who was deformed by a vaginal birth was a patient before birth and could bring a lawsuit against the delivery doctor.
MADISON, Wis. (CN) – The Wisconsin Supreme Court ruled Friday that unborn and minor children are considered “patients” for purposes of informed consent.
“Our holding does not introduce or expand the rights afforded to an unborn child. Rather, as in any negligence claim involving an unborn child, it protects the right of a born child to recover for wrongs committed before birth,” Chief Justice Jill Karofsky wrote for the majority in 22 page opinion.
Eleven-year-old Charlie Brekke brought the case of informed fetal consent before the Wisconsin Supreme Court in APRIL.
Brekke was born to a surrogate mother in 2015. The birth was beset with complications, including shoulder dystocia, where the baby’s shoulders become stuck to the pubic bone.
The surrogate mother presented several risk factors for the condition, and Brekke asserted that if Dr. Had Craig Batley had an informed consent discussion with her about alternative birth plans, her permanent shoulder injury from birth could have been avoided.
She sued in 2017 in Winnebago County, alleging negligence and lack of informed consent resulting in direct injury. The district and appellate courts found in favor of the obstetrician.
But the state high court reversed course and said Brekke was a patient before her birth and Batley should have obtained informed consent from the surrogate regarding herself and Brekke, and Brekke has every right to pursue her claims.
“To be clear, any medical treatment for an unborn child necessarily affects the pregnant patient,” Karofsky wrote. “That is why the pregnant patient is always responsible for making medical decisions about an unborn child. Nothing in (the informed consent statute) limits the basis on which she can make her decision.”
The only reasonable interpretation of the statute requires a physician to convey the necessary information to anyone making medical decisions on behalf of the patient, according to the majority.
In this case, Batley should have informed the surrogate about the risks of a vaginal birth to Brekke’s body as well as her own. He never offered the surrogate the option of a caesarean section as an alternative mode of delivery, which would have spared Brekke permanent shoulder disfigurement.
Batley tried to argue that if Brekke is determined to be a patient under the informed consent statute, there could be “serious” conflicts between the duty owed to pregnant patients and the duty owed to unborn children.
But Karofsky said the doctor misunderstands his duty, as well as how causation works under the statute.
“There is no conflict in simply giving a pregnant patient full and complete information about reasonable alternative modes of treatment and the benefits and risks of those treatments for both herself and the unborn child,” Karofsky said.
The chief justice went on to note that the rights of the unborn patient cannot override a pregnant patient’s right to her bodily integrity and autonomy, nor does Friday’s decision introduce or expand the rights afforded to an unborn child.
Conservative leader Rebecca Bradley criticized the majority in her partial dissent, arguing that it makes the issue of abortion unnecessary before holding that unborn children also have rights under the informed consent law.
She points to a sentence in the majority opinion that limits the independent right to pursue an informed consent request to those who are “born alive.”
“Nothing in (this statute) denies an unborn child the right to informed consent, and nothing in that statute requires an unborn child to be ‘born alive’ for her informed consent rights to be clothed and rendered operative,” Bradley said in her 8-page partial dissent.
According to Judge Rebecca Dallet, a finding against Brekke could mean that a doctor can never obtain the informed consent of a minor child or any person incapable of making their own medical decisions.
Those patients who cannot speak for themselves are still given a duty of informed consent, the court found, which leaves it to a legal guardian to make the final call.
The case will be returned to the state court for a jury trial, which will be asked to ask whether informed consent was obtained and, if not, whether a reasonable person would have acted differently had he known the risks.
Neither party could be reached for comment by press time.
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