Montalvo v. Borkovec,
No. 01-1933 (Wis. App. May 29, 2002)

The Court of Appeals of Wisconsin upheld a trial court judgment that dismissed a claim by a woman and her husband that the hospital and physicians who delivered and subsequently cared for their baby failed to obtain their informed consent prior to initiating life-saving measures on their premature infant. The parents argued that they were not informed of the risks and consequences of birth at 23-24 weeks and, accordingly, were not able to intelligently decide whether to permit resuscitative efforts. The court dismissed the claim against the hospital since only doctors, not hospitals, have an obligation to obtain informed consent. The court also dismissed the claim against the physicians since, under Wisconsin common law and the United States Child Abuse Protection and Treatment Act, the parents had no right to decide whether to withhold life-sustaining treatment from their non-vegetative infant. Since there was no choice to be made, no information regarding that choice needed to be provided. In addition, the court ruled that the neonatologists could not be liable for failing to obtain a proper consent for a caesarian section delivery since the obstetricians performed the delivery.