## Facts

- Nancy Montalvo went into preterm labor at St. Mary’s Hospital of Milwaukee at approximately 23–24 weeks’ gestation; attempts to stop labor failed.
- Montalvo and Brian Vila signed written consent for a cesarean section performed by Dr. Terre Borkovec.
- After delivery, the newborn, Emanuel Vila, was born alive but extremely premature (about 23–24 weeks and under 750 grams) and was immediately provided resuscitation and life-saving measures by Dr. Brent W. Arnold (neonatologist), with related care by other defendants.
- Emanuel survived but suffered profound, permanent disabilities.
- The parents alleged the physicians and hospital failed to provide adequate information about the probability and severity of long-term disability associated with resuscitation and intensive care for an infant born at that gestational age and weight.
- Plaintiffs sought recovery under Wisconsin’s informed-consent statute, WIS. STAT. § 448.30, asserting that full disclosure would have led them to decline resuscitation and life-sustaining treatment.

## Issues

1. Whether WIS. STAT. § 448.30 requires disclosure and parental consent (including long-term disability risks) before initiating resuscitation and life-sustaining treatment for an extremely premature, born-alive infant.
2. Whether parents may recover damages on an informed-consent theory by alleging they would have elected non-resuscitation/non-treatment had they been fully informed of the risk of severe disability.
3. Whether public policy permits a cause of action that treats survival with severe disability, rather than death, as the compensable injury attributed to medical treatment.

## Decision

- The Wisconsin Court of Appeals affirmed dismissal of the complaint and judgment for the defendants.
- The court held that Wisconsin’s informed-consent statute does not create a cause of action for damages premised on the claim that parents would have chosen to forgo resuscitation or life-saving treatment of their born-alive, extremely premature infant if better informed of disability risks.
- The court concluded that, under existing Wisconsin pleading rules, substantive law, and public policy, the claims could not proceed.

## Legal Principles

- Wisconsin informed-consent law requires disclosure of information needed for a reasonable patient to make an intelligent decision among available medical choices; the duty is not unlimited and depends on the patient’s condition and the clinical context.
- Immediate resuscitation of a born-alive infant presents a time-critical medical emergency that does not fit the ordinary informed-consent model designed for non-emergent treatment selection.
- Parents do not have an absolute legal right to require physicians to withhold life-preserving treatment from a born-alive child based solely on anticipated disability outcomes.
- Public policy bars damages theories that effectively require courts to compare life with disability to nonexistence (or death) and treat the child’s continued life as the actionable harm, akin to a wrongful-life rationale.

## Conclusion

The court refused to extend Wisconsin’s informed-consent statute to permit damages based on an alleged parental choice to decline resuscitation and intensive care for a born-alive, extremely premature infant, concluding that substantive law and public policy preclude treating survival with disabilities as a compensable injury attributable to providing life-sustaining treatment.


Montalvo v. Borkovec, 647 N.W.2d 413 (Wis. Ct. App. 2002)