The justices ruled that a child who was deformed by a vaginal birth was a patient before she was born, and can pursue a claim against the delivery doctor.
MADISON, Wis. (CN) — The Wisconsin Supreme Court ruled Friday that unborn and minor children are considered “patients” for the purposes of informed consent.
“Our holding does not introduce or expand rights afforded to an unborn child. Rather, just as in any claim for negligence concerning an unborn child, it protects the right of a born child to recover for wrongs done before she was born,” Chief Justice Jill Karofsky wrote for the majority in the 22-page opinion.
Eleven-year-old Charlie Brekke brought the issue of fetal informed consent before the Wisconsin Supreme Court in April.
Brekke was born to a surrogate mother in 2015. The delivery was marred with complications, including shoulder dystocia, where the baby’s shoulders get stuck against the pubic bone.
The surrogate mother presented several risk factors for the condition, and Brekke claimed that had Dr. Craig Batley had an informed consent discussion with her for alternative birth plans, her permanent shoulder injury from birth could have been avoided.
She sued in 2017 in Winnebago County, claiming negligence and a lack of informed consent that resulted in direct injury. The circuit and appellate courts found in favor of the delivery doctor.
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 purse her claims.
“To state the obvious, any medical treatment for an unborn child necessarily affects the pregnant patient,” Karofsky wrote. “This is why the pregnant patient is always responsible for making medical decisions for an unborn child. Nothing in [the informed consent statute] limits the basis upon which she may make her decision.”
The only reasonable interpretation of the statute requires that a physician convey the necessary information to whoever is making medical decisions on behalf of the patient, according to the majority.
In this case, Batley should have informed the surrogate of the risks of a vaginal birth to Brekke’s body, as well as her own body. He never offered the surrogate the option of cesarean section as an alternate mode of delivery, which would have spared Brekke of permanent shoulder disfiguration.
Batley attempted to make the argument that if Brekke is determined to be a patient under the informed consent statute, there could be “dire” conflicts between the duty owed to pregnant patients and the duty owed to unborn children.
But Karofsky said the doctor misunderstands his own 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 alternate modes of treatment and the benefits and risks of those treatments to both herself and the unborn child,” Karofsky said.
The chief justice went on to note that the unborn patient’s rights cannot override a pregnant patient’s right to her own bodily integrity and autonomy, nor does Friday’s ruling introduce or expand rights afforded to an unborn child.
Conservative Justice Rebecca Bradley slammed the majority in her partial dissent, claiming it unnecessarily makes this case into one about abortion before opining that unborn children also have rights under informed consent law.
She points to one sentence of the majority opinion, which limits the independent right to pursue an informed consent claim to those “born alive.”
“Nothing in [this statute] withholds from 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 vest and become actionable,” Bradley said in her 8-page partial dissent.
According to Justice Rebecca Dallet, a finding against Brekke could mean a physician could never obtain informed consent of a minor child or any person incompetent to make their own medical decisions.
Those patients who cannot speak for themselves are still afforded a duty of informed consent, the justices found, which shifts to a legal guardian to make the final call.
The case will be booted back to state court for consideration by a jury, which will be required to ask if informed consent obtained, and if not, would a reasonable person have acted differently if they knew the risks.
Neither party could be reached for comment by press time.
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