01-1933 Montalvo v. Borkovec, M.D.

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“First, requiring the informed consent process here presumes that a right to decide not to resuscitate the newly born child or to withhold life-sustaining medical care actually existed. This premise is faulty. …

“[I]n Wisconsin, in the absence of a persistent vegetative state, the right of a parent to withhold life-sustaining treatment from a child does not exist. It is not disputed here that there was no evidence that Emanual was in ‘a persistent vegetative state.’ Accordingly, the alternative of withholding life-sustaining treatment did not exist.

“Although Montalvo concedes that as parents they have ‘no right to terminate the child’s life,’ they assert that if ‘there is a balance between giving therapies that help, but which may also seriously harm, the parents should be the final arbiters of that choice.’ In the exigent circumstances confronting the treating physician here, no ‘balance’ existed as proposed by the parents. Failure to treat was tantamount to a death sentence. Under the pleaded circumstances, informed consent was not required.”

Further, the trial court properly ruled that Wisconsin law does not leave the resuscitation decision upon the birth of a child solely to the parents because of the community’s interest in protecting children, and the physicians’ commitment to preserving life.

Judgments affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Flanagan, J., Wedemeyer, P.J.

Attorneys:

For Appellant: Timothy J. Aiken, Milwaukee; David M. Skoglind, Milwaukee; James C. Gallanis, Milwaukee

For Respondent: Michael P. Malone, Milwaukee; Pamela J. Tillman, Milwaukee; Linda E. Hansen, Milwaukee, et al.