MADISON, Wis. (CN) - The Wisconsin Supreme Court on Tuesday grappled with whether an unborn baby is a "patient" under informed consent laws and can later seek legal recourse for birth injuries.

"What are you asking for? What do you want from us?" Justice Rebecca Dallet asked, cutting off a long-winded overview of the factual record from the plaintiff side.

Charlie Brekke, 11, was born to a surrogate mother in 2015. The delivery was marred with complications, including shoulder dystocia, or the baby's shoulders getting stuck against the pubic bone.  

The surrogate mother presented several risk factors for this situation, and had Dr. Craig Batley had an informed consent discussion with her for alternative birth plans, Brekke argued in her lawsuit that her permanent shoulder injury from birth could have been avoided.

Brekke sued Batley in 2017 in Winnebago County, claiming negligence and a lack of informed consent that resulted in a direct injury. The circuit court found in favor of the doctor on the informed consent claim, and a jury later absolved the doctor of any negligence following a trial. The appeals court affirmed.

On Tuesday, Brekke brought the case before the justices of the Wisconsin Supreme Court to determine at what age a person becomes a "patient" owed a duty of informed consent.

Attorney Chester Tennyson Jr. represented Brekke and argued primarily that she became a patient during labor, when Batley began monitoring her heart rate and attempting to safely deliver her.

It is undisputed that Batley should have but never did inform the surrogate mother of the risks associated with vaginal birth in her case due to preexisting conditions and Brekke's larger size at over 11 pounds.

Had he fulfilled that obligation, Tennyson argued, there would be no informed consent claim. The issue arises out of the word "patient" for some of the justices.

Attorney Douglas Knott argued for the doctor that Brekke cannot bring a claim to enforce the rights of the surrogate mother unless the surrogate is a party to the case, though he struggled to articulate the statutory basis for his position.

He went a step further to suggest that even if the unborn baby is a patient, they fall under an exception to the informed consent law for patients unable to make decisions for themself.

"Under your logic, we could never obtain the informed consent of a minor child," Dallet said, earning incredulous looks from the rest of the bench.

The justices pointed out that a child or an incompetent adult is still owed a duty of informed consent, but that it shifts to a legal guardian to make the final call. In this case, Batley "took away [Brekke's] right, through her birth mother, to make an informed decision regarding delivery," according to Tennyson.

Some of the justices questioned exactly how narrowly the court had to rule at all.

"Do we even have to reach this question of whether an unborn baby is a patient when all roads lead back to the mother?" Justice Susan Crawford asked.

In other words, an unborn baby cannot speak for themself, so should the court's holding focus on whether the now 11-year-old child can bring this claim against the doctor with the help of her adoptive fathers for her direct injury?

The court needs only to decide whether there is an issue of material facts requiring a jury's consideration, but Wisconsin law requires the court to ask: Was informed consent obtained, and if not, would a reasonable person have acted differently if they knew the risks?

In this case, Tennyson contended Brekke was the reasonable person - the reasonable baby.

The plaintiffs abandoned this language in oral arguments, skirting around it when brought up by the defense.  

Tennyson asserted in briefs that no reasonable baby would have chosen a vaginal birth over a cesarean section armed with the knowledge that the former could result in severe impairment or death.

Today's arguments began with a retrospective on Justice Rebecca Bradley's 11-year tenure on the high court as her retirement nears. She announced her retirement in August 2025 and will be replaced by Justice-elect Chris Taylor in the coming months.

Chief Justice Jill Karofsky applauded Bradley's almost 500 oral arguments, 61 majority opinions, 68 concurrences and 59 dissents - most of which Karofsky said were in opposition to her own writings.

"Justice Bradley, I want to personally thank you for artfully showing me the error of my ways," Karofsky said smartly after reading some of Bradley's more inflammatory quotes from recent years. "In all seriousness, you made me a better justice. Thanks for being a good sport."

"Except when we are playing tennis," Bradley hit back.

The jovial tone earned a lively response from the gallery and served as a reminder of the justices' joint mission to serve despite an increasingly ideological tilt.

Source: Courthouse News Service