Unborn Children as “Patients” Under Wis. Stat. § 448.30: Informed Consent Owed Through the Pregnant Decisionmaker and Independently Enforceable After Live Birth

I. Introduction

Case: Charlie May Brekke v. Midwest Medical Insurance Co., 2026 WI 29 (Wis. July 10, 2026).
Court: Supreme Court of Wisconsin.
Posture: Appeal from partial summary judgment dismissing an informed-consent claim under WIS. STAT. § 448.30; negligence claim tried to a defense verdict.

Charlie May Brekke, born in 2015 via surrogate (Samantha), alleged she suffered shoulder dystocia and a permanent brachial plexus injury during a vaginal delivery. She sued the delivering physician, Dr. Craig M. Batley, and his insurer, asserting (1) negligence in prenatal/delivery management and (2) failure to obtain informed consent under § 448.30. The circuit court dismissed the informed-consent claim, reasoning only Samantha was the “patient” entitled to disclosure and she was not a plaintiff.

The court of appeals certified a core question: whether an unborn child (or any minor child) is a “patient” under § 448.30 and thus has informed-consent protection with an independent right to sue. The Supreme Court accepted certification as a bypass under WIS. STAT. § 808.05(2), and—per the majority—took jurisdiction over the entire appeal.

II. Summary of the Opinion

  • The Court held Charlie was a “patient” under WIS. STAT. § 448.30 before birth because Dr. Batley provided medical care to her in utero and during labor.
  • The physician’s duty to inform under § 448.30 extended to disclosures made to Samantha both (a) for Samantha and (b) on Charlie’s behalf.
  • Statutory exceptions in § 448.30(2) and (6) do not categorically eliminate informed-consent duties for all minors or unborn children.
  • Charlie’s informed-consent claim is not derivative of Samantha’s; Samantha need not be joined as a plaintiff.
  • The Court rejected arguments that the record entitled Dr. Batley to summary judgment on breach, and rejected mootness arguments tied to the negligence-trial verdict and zero-damages entry.
  • Disposition: reversed and remanded for further proceedings on Charlie’s informed-consent claim.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. The common-law foundations and transition to negligence

  • Throne v. Wandell (1922): cited for the historical framing that nonconsensual treatment constituted a technical assault/battery. The majority used it to show informed consent’s doctrinal roots in bodily integrity, before Wisconsin migrated to negligence-based liability.
  • Trogun v. Fruchtman (1973): used to describe the development of informed-consent theories and to support Wisconsin’s move away from battery to negligence for inadequate disclosure.
  • Scaria v. St. Paul Fire & Marine Ins. Co. (1975): central to the Court’s historical narrative. Scaria articulated (a) the disclosure duty to enable a reasonable person to decide, (b) recognized limitations/exceptions, and (c) adopted an objective causation standard. The majority leaned on Scaria to rebut the notion that minors (or incompetent persons) are outside informed-consent law; Scaria’s footnote recognized that “Consent in case the patient is a child is probably the obligation of the parent or guardian.”

2. Statutory codification and modern standards

  • Martin v. Richards (1995) and Schreiber v. Physicians Ins. Co. of Wis. (1999): cited for the proposition that § 448.30 codified the common-law informed-consent duty and for the two-part objective framework (what information should be disclosed; whether disclosure would have changed the decision and avoided injury). The Court also invoked Schreiber to preserve the objective causation inquiry even after the 2013 amendment adopted a “reasonable physician” standard for disclosure content.
  • Bubb v. Brusky (2009): cited for de novo review of statutory interpretation.
  • Hannemann v. Boyson (2005) (in Justice Crawford’s concurrence): used to reinforce informed consent as an expression of the patient’s right to refuse unwanted treatment and control what is done to one’s body.
  • In re Guardianship of L.W. (1992) (in Justice Crawford’s concurrence): cited to locate bodily integrity and self-determination in constitutional and common-law sources.

3. Recognizing the unborn child as a “patient” in other contexts

  • Pierce v. Physicians Ins. Co. of Wis., Inc. (2005): persuasive support for the “two patients” concept in obstetrics. Although Pierce addressed negligent infliction of emotional distress related to stillbirth, the majority used its language to confirm that Wisconsin law can recognize mother and unborn child as distinct patients.
  • Preston v. Meriter Hosp., Inc. (Ct. App. 2008): persuasive authority applying EMTALA to an unborn child as an “inpatient” during labor, supporting the majority’s ordinary-language understanding that an unborn child receiving care can be a “patient.”

4. Personhood, fetal injury, and attachment of claims

  • State ex rel. Angela M.W. v. Kruzicki (1997) and Puhl v. Milwaukee Auto. Ins. Co. (1959): used by the majority to analogize informed-consent injury in utero to prenatal injury claims that become actionable for the child upon live birth. The majority relied on this line to support the conclusion that Charlie, “as [she] was born alive,” may pursue the claim independently. This framing became a major point of disagreement in the separate writings.
  • Vandervelden v. Victoria (Ct. App. 1993): cited by the majority to reject the idea of “independent fetal consent” (i.e., a fetus personally consenting or refusing treatment), while simultaneously affirming that the pregnant patient may provide informed consent on behalf of the unborn child and that modern informed-consent law is negligence-based (not battery).

5. Derivative claims and joinder

  • Phelps v. Physicians Ins. Co. of Wis., Inc. (2009): used to define what makes a claim “derivative” and to show why Charlie’s claim is not derivative of Samantha’s. The majority applied Phelps to emphasize that Charlie’s claim has its own duty/breach/causation/damages elements as to Charlie.
  • Hubbard v. Neuman (Ct. App. 2024): cited for the standard four negligence elements.

6. Procedure: summary judgment and interpretation methodology

  • DSG Evergreen Fam. Ltd. P'ship v. Town of Perry (2020): cited for de novo review of summary judgment.
  • Serv. Emp. Int'l Union Healthcare Wis. v. WERC (2025) and Myers v. DNR (2019): cited for textual/intrinsic-source statutory interpretation and avoiding absurd results.
  • Fuchsgruber v. Custom Accessories, Inc. (2001): used to reject the idea that § 448.30 silently displaced the common-law approach to consent for minors (i.e., that parents/guardians consent for the child).
  • Hopper v. City of Madison (1977): cited for the rule against raising issues for the first time on appeal; used to reject forfeiture arguments.

B. Legal Reasoning

1. “Patient” under § 448.30 includes an unborn child receiving care

The statute applies when a physician “treats a patient,” but does not define “patient.” The majority looked to related Wisconsin healthcare statutes (WIS. STAT. §§ 146.81(3), 153.01(7)) defining “patient” as “a person who receives health care services from a health care provider,” and to the ordinary meaning (“one who receives medical attention”). It then found Charlie received medical care before birth (monitoring, ultrasound, vitals, readiness to intervene), and therefore qualified as a “patient.”

A key analytic move is the Court’s insistence on coherence: if Dr. Batley owed Charlie a duty of reasonable care (negligence) prior to birth, the Court saw “no legal reason” he would not owe the more specific, codified professional duty to inform that is part of negligence law under § 448.30.

2. § 448.30(2) and (6) do not categorically exempt treatment of minors or unborn children

Dr. Batley argued two exceptions eliminate the duty because Charlie could not understand technical information and could not consent. The majority rejected both as categorical shields:

  • § 448.30(2): The majority read this as an information-type limitation (no duty to provide “detailed technical information” unlikely to be understood), not a patient-capacity carveout. It reinforced this interpretation with close grammatical attention (“a patient” vs. “the patient”) and with practical sense: the risk of shoulder dystocia and the option of C-section are not “detailed technical information.”
  • § 448.30(6): The majority treated Dr. Batley’s reading as an “exception would swallow the rule” problem. Because all minors are legally incapable of consenting, interpreting (6) as a categorical removal of any duty would effectively erase informed-consent protections for pediatric care—an “absurd or unreasonable result.” It also found support in (a) Scaria’s expectation that parents/guardians consent for children and (b) related statutory schemes (e.g., ch. 155 health care agents; statutes requiring parental informed consent or information for specific infant/child procedures).

The Court’s core interpretive conclusion: § 448.30 requires disclosure to the person authorized to decide on the patient’s behalf, ensuring that consent given for the patient is actually informed.

3. The duty is “owed to Charlie,” discharged “through Samantha”

The Court drew a careful distinction between (a) who holds the right protected by the duty and (b) who receives the disclosure and gives consent. It held Dr. Batley had “two independent duties”: to inform Samantha for her own treatment decisions and to inform Samantha on Charlie’s behalf for treatment decisions affecting Charlie. This structure allows an unborn (or minor) patient to be protected without embracing the legally incoherent notion of “fetal consent.”

4. Independence (not derivativeness) and no mandatory joinder of Samantha

Using Phelps v. Physicians Ins. Co. of Wis., Inc., the Court held Charlie’s claim is not derivative because it has distinct elements: duty to Charlie, breach affecting Charlie, causation of Charlie’s injury, and Charlie’s damages. Samantha’s absence as a plaintiff therefore does not defeat Charlie’s claim, and the Court rejected the WIS. STAT. § 803.03 joinder argument as underdeveloped.

5. Causation: rejecting the “reasonable baby” test and avoiding maternal-fetal conflict

Charlie argued causation should ask what a “reasonable baby” would have chosen; the Court rejected that as illogical when the patient cannot decide. The Court clarified that in surrogate/pregnancy settings (and more generally when another person decides for the patient), the objective test keys to the decisionmaker: whether a reasonable person in Samantha’s position, considering risks and benefits to both Samantha and Charlie, would have decided differently if properly informed—and whether that different decision would have avoided Charlie’s injury.

The majority also emphasized the limited nature of § 448.30: it is a duty to inform, not a duty to compel a particular choice. Accordingly, recognizing the unborn child as a patient does not itself subordinate the pregnant patient’s bodily integrity and autonomy; the physician cannot treat the pregnant patient without her consent.

6. Rejecting alternative grounds to affirm

  • Forfeiture/waiver: rejected because Charlie consistently argued an independent claim on her own behalf at the circuit court stage.
  • Evidence-based summary judgment on breach: rejected because Dr. Batley’s summary judgment motion was limited to the legal duty question; Charlie had no obligation to rebut factual breach arguments not made.
  • Mootness based on negligence verdict and damages “0”: rejected as conclusory; the informed-consent claim was never tried, and Dr. Batley cited no authority requiring an objection to a verdict form in a trial on a different claim to preserve damages issues for a claim dismissed at summary judgment.

C. Impact

1. Obstetrics and prenatal care: explicit recognition of dual-patient informed-consent duties

The decision operationalizes a dual-patient conception for informed consent: in pregnancy and delivery, an unborn child can be a “patient” under § 448.30, with disclosure delivered to (and consent provided by) the pregnant decisionmaker. Practically, this encourages physicians—especially obstetrician-gynecologists—to document disclosure not only of maternal risks/benefits but also fetal risks/benefits and reasonable alternatives (e.g., planned cesarean in macrosomia risk contexts).

2. Pediatrics and incapacity more broadly: narrowing overbroad readings of § 448.30(6)

The Court’s reading of § 448.30(6) matters beyond pregnancy: it rejects the idea that incapacity eliminates informed-consent duties. Instead, incapacity shifts the disclosure/consent process to legally authorized decisionmakers, preserving informed-consent protections for minors and incapacitated adults.

3. Litigation structure: independent claims by the injured child

By holding the child’s claim is independent (not derivative), the decision allows birth-injured plaintiffs to pursue informed-consent theories even when the pregnant patient does not sue, does not wish to sue, is unavailable, or has waived claims. This may increase informed-consent pleading in obstetric malpractice cases (alongside negligence) and will sharpen disputes over what constitutes “reasonable alternate medical modes of treatment” and what a “reasonable” decisionmaker would do.

4. Causation framing: “reasonable decisionmaker” standard in surrogate/pregnancy cases

The Court’s causation clarification—objective reasonableness anchored to the authorized decisionmaker (here, Samantha), not the fetus/infant—will influence jury instructions and expert framing, and reduces the risk of conceptual confusion (“reasonable baby”) that could distort informed-consent analysis.

5. Separate writings signal future fault lines

  • Justice Hagedorn (concurrence): agrees on the holdings but warns the majority’s broader statements may mislead future litigants and suggests the Court should “simply follow the law” without digressions.
  • Justice Susan M. Crawford (concurrence): emphasizes pregnant patients’ decisional authority and argues the decision does not meaningfully change clinical informed-consent practice; she also endorses the “born alive” framing for the child’s ability to sue in her own name.
  • Justice Ziegler (concurrence/dissent): agrees Charlie is a patient but criticizes the majority for answering beyond the certified question and for speaking without engaging the surrogacy agreement’s allocation of decision authority.
  • Justice Rebecca Grassl Bradley (concurrence/dissent): agrees the certified answer is “yes” but attacks the “born alive” limitation and argues it improperly strips unborn children of informed-consent rights and destabilizes wrongful-death/claim-survival logic; she also criticizes dicta on bodily autonomy as inconsistent with other statutory contexts.

IV. Complex Concepts Simplified

  • Informed consent (Wisconsin): a negligence-based claim that a physician failed to provide required information about reasonable alternatives and risks/benefits before treatment, depriving the lawful decisionmaker of an informed choice.
  • “Reasonable physician standard” (content of disclosure): § 448.30 requires disclosure of what a reasonable physician in the same or similar specialty would know and disclose under the circumstances.
  • Objective causation (decision impact): not what the actual person would have done, but what a reasonable person in the relevant position would have decided if properly informed. When someone else must decide for the patient (minor/incapacitated/unborn), the “relevant position” is the authorized decisionmaker’s.
  • Derivative vs. independent claim: a derivative claim depends on another person’s primary tort claim (e.g., loss of consortium). An independent claim has its own duty/breach/causation/damages elements. The Court held Charlie’s claim is independent.
  • Necessary party (WIS. STAT. § 803.03): a person must be joined if complete relief cannot be granted without them, or if their absence risks impairing their interests or exposing existing parties to inconsistent obligations. The Court found no developed basis to require Samantha’s joinder.
  • Summary judgment: a pretrial ruling granted only when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Here, the dispositive motion was framed as a legal-duty question, not a factual breach question.

V. Conclusion

Charlie May Brekke v. Midwest Medical Insurance Co. establishes a clear Wisconsin rule: an unborn child receiving medical care can be a “patient” under WIS. STAT. § 448.30, and the physician must provide the required disclosures to the pregnant decisionmaker on the child’s behalf. The child’s informed-consent claim is independent and may proceed without the pregnant patient as a plaintiff. The decision also prevents § 448.30(6) from being read to erase informed-consent protections for minors and incapacitated persons, and it clarifies that causation focuses on what a reasonable authorized decisionmaker would have done if properly informed.