Opposition Brief — Montalvo v. Borkovec

: =a 7

ow FILS

No. 02-997

<$eH-89 2003

Jn The a

Supreme Court of the United States ——

a

NANCY MONTALVO, BRIAN VILA

AND EMANUEL L. VILA, et al.,

Petitioners,

V.

TERRE BORKOVEC, M.D., et al.,

Respondents.

¢

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Wisconsin

¢

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

*

LINDA E. B. HANSEN

Counsel of Record

PATTERSON, THUENTE, SKAAR

MICHAEL P. MALONE & CHRISTENSEN, LLC

SERENA E. POLLACK 2000 US Bank Center

HINSHAW & CULBERTSON 777 E. Wisconsin Avenue

100 E. Wisconsin Avenue Milwaukee, WI 53202

Suite 2600 (414) 276-0977

Milwaukee, WI 53202 Attorneys for Respondents

(414) 276-6464 Jonathan Berkoff, M.D.,

Attorneys for Respondent and Physicians Insurance

Brent W. Arnold, M.D. Co. of Wisconsin

MARILYN M. CARROLL TIMOTHY YANACHECK

KRAVIT, GASS, HOVEL BELL, GIERHART &

& LEITNER, S.C. MOORE, S.C.

825 N. Jefferson Street 44 E. Mifflin Street

Milwaukee, WI 53202-3737 Suite 1000

(414) 271-7100 Madison, WI 53701-1807

Attorneys for Respondent (608) 259-2309

St. Mary’s Hospital Attorneys for Respondent

of Milwaukee Wisconsin Patients

Compensation Fund

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether parents have the right, prior to the birth of

their viable baby, to request that their baby not be resusci-

tated and evaluated for ongoing treatment, simply because

the baby is at risk for developing a disability at some time

in the future?

i

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT

The parties to this matter include the following

petitioners:

1. Nancy Montalvo;

2. Brian Vila;

3. Emanuel L. Vila, by his Guardian ad Litem,

- Timothy J. Aiken;

4. Blue Cross Blue Shield United of Wisconsin;

5. Wisconsin Division of Health Care Finance; and,

6. PrimeCare Health Plan.

The individual respondent named in the caption of

this matter, Terre Borkovec, M.D., is the obstetrician who

performed the cesarean section at issue, and delivered

Emanuel Vila. Petitioners voluntarily dismissed their

claims against her on December 5, 2000. The remaining

respondents in this lawsuit are:

1. Brent W. Arnold, M.D.;

2. Jonathan H. Berkoff, M.D.;

3. St. Mary’s Hospital of Milwaukee;

Parent corporation: Columbia St. Mary’s, Inc.

There is no publicly held company that holds

10% or more of the stock.

4. Wisconsin Patients Compensation Fund;

There is no parent corporation or company that

holds 10% or more of the stock of Wisconsin Pa-

tients Compensation Fund; and,

ill

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT - Continued

5. Physicians Insurance Co. of Wisconsin.

There is no parent corporation or publicly held

company that holds 10% or more of the stock of

Physicians Insurance Co. of Wisconsin.

iv

TABLE OF CONTENTS

Page

UT Oe Fe Oe vases scence sscnnsescccnevessvedesesenens i

PARTIES TO THE PROCEEDING AND RULE 29.6

DISCLOSURE STATEMENT ................cccscsssccsseees ii

Re Ce ST ES isco civevtctcacaecivetintnemnccissronines iv

ey tPF ae \ivy 8) fy y | -. Ser eererrrenenrenen v

Pre CE escisaivnichcencsctintanvesanreniaisieeneaciomives 1

STATEMENT ON JURISDICTION ....................eesee 1

CONSTITUTIONAL PROVISIONS, STATUTES,

AND OTHER REGULATIONS INVOLVED IN

Fe I saps ncckihnalsdinintectnnsivcisnnciseicnseintanis 2

STARTS OE TE CA iv evesicnsconsscsnvvecsivenesnssonaes 5

REASONS FOR DENYING THE PETITION............ 7

I. NO FEDERAL CLAIM WAS PRESENTED

TO THE WISCONSIN COURTGB.................044. 8

II. THE STATE COURT DECISION RESTS ON

INDEPENDENT AND ADEQUATE STATE

CFP I ienivvsin viexsuncsivnnncmntnsencienvenentndevenmenvces 10

III. THE DECISION OF THE WISCONSIN

COURT IS IN ACCORD WITH EVERY DE-

CISION OF EVERY COURT TO RULE ON

FEE SITE oe bksis cin csciceninereispinamrianscmnienipalese 12

CY Gisiossrnsinincacsenicnsrncncpcetapunbencliouatedentinnies 16

TABLE OF AUTHORITIES

Page

CASES

Adams v. Robertson, 520 U.S. 83 (1997).........cccccccsseeeeees 8,9

Bailey v. Anderson, 326 U.S. 203 (1945)........::ssseeereeeeeees 8

Berman v. Allen, 404 A.2d 8 (1979) ......cccccccsseeeeeeeseeeseeeneees 13

Board of Directors of Rotary Int'l v. Rotary Club of

Duarte, 481 U.S. 537 (1987).............cccccssssssssssesssssnsaceoeees 8

Cardinale v. Louisiana, 394 U.S. 437 (1969) ...........ccceeeeees 8

Cruzan v. Director, Missouri Dept. of Health, 497

CE. BOE CI isesiknsiecescthetirtntainonicetr mateiarnnien 7

Fuller v. Oregon, 417 U.S. 40 (1974) .......ccccceeesesssereeeeeeeeeees 8

HCA, Inc. v. Miller, 36 S.W.3d 187 (Tex. Ct. App.

I cs ceisinseinsanaoninccciiocerceuicsatnaseepeiannnibeaibeunaneisaniee 14, 15

Heath v. Alabama, 474 U.S. 82 (1985) ............ccccseeeeeeeeeeeees 8

Herb v. Pitcairn, 324 U.S. 117 (1945)............cccsscsceeeeeees 1,11

Hill v. California, 401 U.S. 797 (1971)......ccsecsereesseesereeeeees 8

Iafelice v. Zarafu, 534 A.2d 417 (NJ. App. Div.

BD vsicviessinsavertvseateniechittiad ehiaimmnas laminate 12, 13, 14

In re Edna M.F, 210 Wis. 2d 557, 563 N.W.2d 485

CR vcidclatassisclsctnvcceniaalinabetiatceiondasietanianmaanne 7, 10, 15

L.W. v. L.E. Phillips Career Dev. Ctr., 167 Wis. 2d

5S, 462 N. W.2d GO (1992) ...............cccccccsssserrcoesecsersrenesees 11

Michigan v. Long, 63 U.S. 1032 (1983)..........scesseeesereees 11

McGoldrick v. Compagnie Genrale Transatlantique,

Te, a sienna cenacdenesieertnenickannesnvnenonenin 8

Moore v. Illinois, 408 U.S. 786 (1972).............sseceeeeeeeeseeeeees 8

vi

TABLE OF AUTHORITIES -— Continued

Page

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

(TODD). cciserscxcssssvnsserssrevesereieinsnseusnnvnesnsecuesstabeeventannentvesvens 1

Oxley Stave Co. v. Butler Country, 166 U.S. 648

PREITY gcessccsnascsotansennpaveciwaysannensensnnteseunnsenisebaseuagnecepensesents 1

Ridgway v. Ridgway, 454 U.S. 46 (1981) ......sseseeseseeees 11

Stanley v. Illinois, 405 U.S. 645 (1972) .......scsessesereerreeeeeens 8

Street v. New York, 392 U.S. 576 (1969) .........cccceceeeeeeeeeeens 8

Tacon v. Arizona, 410 U.S. 351 (1973)..........ccceeeeeesenneeneees 8

Webb v. Webb, 451 U.S. 493 (1981) ........cceeeeseeeesnsereeeeeeeees 9

STATUTES AND REGULATIONS

BB EFC. © DIGG viccencisescscccsshecisvaenseiscrsstessessiniesineneemnss 1, 2,8

45 C.ER. § 1840. 15(a)-(d).........cccsscsccsssssscvccesscsvesseseesenesssssons 2

Wis. Stats. § 448.30 (2001)...................scccssserrcrecenesssrreeesoees 4

Wis. Stats. § 802.06(2)(a)6 (2000)..........:cccseeseerereeeeesenees 1,5

OPINIONS BELOW

The Circuit Court for Milwaukee County, the Honor-

able Mel Flanagan presiding, granted Respondents’

Motion to Dismiss for failure to state a claim, pursuant to

Wis. Stats. § 802.06(2)(a)6 (2000), at a hearing on April 30,

2001. The Wisconsin Court of Appeals, District I, affirmed

that decision on May 29, 2002. The Supreme Court of

Wisconsin denied Petitioners’ Petition for Review on

September 26, 2002.

4

v

STATEMENT ON JURISDICTION

This Court is without jurisdiction pursuant to 28

U.S.C. § 1257 because Petitioners’ federal claims were not

properly presented to the Wisconsin State Courts below.

The first time a federal claim was presented was in the

Petition for Writ of Certiorari to this Court. The jurisdic-

tion of this Court to re-examine the final judgment of a

state court can only arise if the record as a whole shows,

either expressly or by clear implication, the federal claim

was adequately presented in the state system. New York ex

rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928); Oxley

Stave Co. v. Butler Country, 166 U.S. 648, 655 (1897).

Because the record in this case does not so show, this

Court is without jurisdiction. Moreover, there were inde-

pendent and adequate state grounds for the Wisconsin

Courts’ decisions regarding this matter, thus providing

further reasoning for this Court’s lack of jurisdiction. Herb

v. Pitcairn, 324 U.S. 117, 125 (1945).

,%

Vv

2

CONSTITUTIONAL PROVISIONS, STATUTES, AND

OTHER REGULATIONS INVOLVED IN THE CASE

28 U.S.C. § 1257 State courts; certiorari

(a) Final judgments or decrees rendered by

the highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari where the validity of a

treaty or statute of the United States is drawn in

question or where the validity of a statute of any

State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or

laws of the United States, or where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or

statutes of, or any commission held or authority

exercised under the United States.

Child Abuse Prevention and Treatment Act

(CAPTA) of 1984, Pub. L. No. 98-457, 98 Stat. 1749

(codified at 42 USC § 5101 et. seq.)

45 C.FE.R. § 1340.15(a)-(b) Services and treatment

for disabled infants.

(a) Purpose. The regulations in this section imple-

ment certain provisions of the Act, including section

107(bX10) governing the protection and care of disabled

infants with life-threatening conditions.

(b) Definitions.

(1) The term “medical neglect” means the failure to

provide adequate medical care in the context of the defini-

tions of “child abuse and neglect” in section 113 of the Act

and Sec. 1340.2(d) of this part. The term “medical neglect”

includes, but is not limited to, the withholding of medically

3

indicated treatment from a disabled infant with a life-

threatening condition.

(2) The term “withholding of medically indicated treat-

ment” means the failure to respond to the infant’s life-

threatening conditions by providing treatment (including

appropriate nutrition, hydration, and medication) which,

in the treating physician’s (or physicians’) reasonable

medical judgment, will be most likely to be effective in

ameliorating or correcting all such conditions, except that

the term does not include the failure to provide treatment

(other than appropriate nutrition, hydration, or medica-

tion) to an infant when, in the treating physician's (or

physicians’) reasonable medical judgment any of the

following circumstances apply:

(i) The infant is chronically and irreversibly coma-

tose;

(ii) The provision of such treatment would merely

prolong dying, not be effective in ameliorating or correct-

ing all of the infant’s life-threatening conditions, or other-

wise be futile in terms of the survival of the infant; or

(iii) The provision of such treatment would be

virtually futile in terms of the survival of the infant and

the treatment itself under such circumstances would be

inhumane.

(3) Following are definitions of terms used in paragraph

(b)(2) of this section:

(i) The term “infant” means an infant less than one

year of age. The reference to less than one year of age shall

not be construed to imply that treatment should be changed

or discontinued when an infant reaches one year of age, or to

affect or limit any existing protections available under

4

State laws regarding medical neglect of children over one

year of age. In additiori to their applicability to infants less

than one year of age, the standards set forth in paragraph

(b)(2) of this section should be consulted thoroughly in the

evaluation of any issue of medical neglect involving an

infant older than one year of age who has been continu-

ously hospitalized since birth, who was born extremely

prematurely, or who has a long-term disability.

(ii) The term “reasonable medical judgment” means

a medical judgment that would be made by a reasonably

prudent physician, knowledgeable about the case and the

treatment possibilities with respect to the medical condi-

tions involved.

Wis. Stats. § 448.30 (2001).

Any physician who treats a patient shall inform

the patient about the availability of all alternate,

viable medical modes of treatment and about the

benefits and risks of these treatments. The phy-

sician’s duty to inform the patient under this sec-

tion does not require disclosure of:

(1) Information beyond what a reasonably well-

qualified physician in a similar medical

classification would know.

(2) Detailed technical information that in all

probability a patient would not understand.

(3) Risks apparent or known to the patient.

(4) Extremely remote possibilities that might

falsely or detrimentally alarm the patient.

5

(5) Information in emergencies where failure to

provide treatment would be more harmful to

the patient than treatment.

(6) Information in cases where the patient is in-

capable of consenting.

r%

v

STATEMENT OF THE CASE

Just as the federal claim found in the Petition for Writ

of Certiorari (“the Petition”) was not presented to the

Wisconsin Courts below, many of the facts and allegations

-found in the Petition were not presented to the same

courts. This case was initially resolved on a Motion

to Dismiss, pursuant to Wis. Stats. § 802.06(2)(a)6 (2000),

before the Milwaukee County Circuit Court, and was

based solely on the pleadings before the Court. For this

reason the Petitioners’ present claims were not considered

by the Circuit Court, nor the Wisconsin Court of Appeals,

District I, nor the Wisconsin Supreme Court. The only

facts and allegations before the respective Wisconsin

Courts were those in the Petitioners’ Complaint. In addi-

tion to being raised at such a late date, many of the

supposed facts in the Petition are misstatements.

The Respondents do not agree with the recitation of

facts in the Petitioners’ Complaint; the facts were accepted

only for purposes of the Motion to Dismiss before the

Milwaukee County Circuit Court. The basis for this

lawsuit is the parents’ allegations their son should not

-have been resuscitated at the time of his birth. The par-

ents pled this as an informed consent case regarding the

resuscitation. The parents did not sue any of the physi-

cians involved in the care given to Emanuel Vila

-

6

(“Emanuel”) after he was resuscitated. The Wisconsin

Court of Appeals decision underscored the well-settled

principle that informed consent is solely within the realm

of physicians, and further held the Petitioners abandoned

the issue of dismissal of the claim against the hospital

respondent. For this reason, Petitioners’ allegations about

the ability to discontinue medical care at a time after

resuscitation must be disregarded.

In addition to the Petitioners’ failure to raise issues in

the Wisconsin courts below, they misstate some of the facts

before the respective Wisconsin Courts. Respondents

challenge the assertion Emanuel faced a more than ninety

percent (90%) risk of developing a disability; no such facts

were presented to the respective Wisconsin Courts in the

Petitioners’ Complaint. No allegations were presented to

the respective Wisconsin Courts concerning the types of

medical interventions used after Emanuel’s birth, the

reactions of the mother and putative father to the inter-

ventions, the information available to them, or comments

of anyone at the hospital.

There was nothing presented to the respective Wis-

consin Courts about the Petitioners’ alleged trip to a

library regarding information about prematurity, or about

any supposed conversations with an unidentified bioethi-

cist. Nothing in the complaint or in the facts before the

respective Wisconsin Courts related to the supposed

attempts to get treatment discontinued. The supposed

request for a bioethics committee meeting was not before

the respective Wisconsin Courts, nor were the allegations

concerning the outcome and options now allegedly offered.

There was nothing before the respective Wisconsin Courts

about the claims of complications related to the newly-

claimed treatments. In fact, such a causal relationship was

7

specifically denied by the ititideors throughout ccm case

in the Wisconsin Courts below.

All of the “facts” in Petitioners’ Statement of the Case,

after the first paragraph on page four (4) of the Petition

and up to and including the first partial paragraph on

page seven (7), are things not in the pleadings and not

considered by the respective Wisconsin Courts. Further,

many of the “facts” are bits and pieces of articles from

medical journals not properly before any court in this case.

Although Petitioners claim the Wisconsin Courts

based their decision on this Court’s holding in C.-uzan v.

Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the

decisions of the respective Wisconsin Courts in this case

were actually based on public policy and a decision of the

Wisconsin Supreme Court in Jn re Edna M.F, 210 Wis. 2d

557, 563 N.W.2d 485 (1997)

ys

Vv

REASONS FOR DENYING THE PETITION

There are many reasons why this is not a proper case

for the exercise of certiorari. Three (3) of these reasons are

discussed below. First, there was no federal question

raised below. Second, the decision rests on independent

and adequate state grounds. Third, the decision of the

Wisconsin Court in this case is in accord with every

decision of every state court that has been presented with

a similar claim.

8

I. NO FEDERAL CLAIM WAS PRESENTED TO

THE WISCONSIN COURTS

The questions presented in the Petition were never

presented in the record or the decision below. Because the

record is absent a showing that a federal claim was pre-

sented in the Wisconsin Court system, this Court is

without jurisdiction under 28 U.S.C. § 1257 to decide this

case and must therefore deny Petitioners’ Petition for Writ

of Certiorari.

This Court “has consistently refused to decide federal

constitutional issues raised [at this Court] for the first

time on review of state court decisions.” Cardinale uv.

Louisiana, 394 U.S. 487, 488 (1969). See also Tacon v.

Arizona, 410 U.S. 351, 352 (1973); Moore v. Illinois, 408

U.S. 786, 799 (1972); Stanley v. Illinois, 405 U.S. 645, 658

n. 10 (1972); Hill v. California, 401 U.S. 797 (1971). All

federal claims must be either addressed by or properly

presented to the state court that rendered the decision this

Court has been asked to review. Adams v. Robertson, 520

U.S. 83, 86 (1997); see also Heath v. Alabama, 474 U.S. 82,

87 (1985); McGoldrick v. Compagnie Genrale Transatlan-

tique, 309 U.S. 430, 434 (1940).

When the highest state court is silent on a federal

question before this Court, this Court assumes the federal

claim was not properly presented to the highest state

court. Board of Directors of Rotary Int'l v. Rotary Club of

Duarte, 481 U.S. 537, 550 (1987). See also Street v. New

York, 392 U.S. 576, 582 (1969); Fuller v. Oregon, 417 U.S.

40, 50 n. 11 (1974); Bailey v. Anderson, 326 U.S. 203, 206-

07 (1945). Petitioners have the burden of defeating this

assumption. Board of Directors, supra, 481 U.S. at 550.

They must do so by showing the Wisconsin court had “a

9

fair opportunity to address the federal question that is

sought to be presented here.” Webb v. Webb, 451 U.S. 493,

501 (1981).

“(Rjequiring parties to raise issues below not only

avoids unnecessary adjudication in this Court by allowing

state courts to resolve issues on state-law grounds, but

also assists us in our deliberations by promoting the

creation of an adequate factual and legal record.” Adams,

520 U.S. at 90, quoting Webb, 451 at 500. In Webb, this

Court further discussed important policy considerations

underlying this requirement. “These considerations

strongly indicate that this Court should apply this general

principle with sufficient rigor to make reasonably certain

that this Court entertain from state courts only where the

record clearly shows that the federal issue has been

properly raised below.” Webb, 451 U.S. at 499. Federal law

based on these policy considerations requires that for this

Court to invoke its jurisdiction in this matter, a federal -

claim must have been raised on the record in the Wiscon-

sin courts. This case is, therefore, improper for review by

this Court.

Rule 14.1(g) of the Rules of the Supreme Court of the

United States requires, in part, that a Petition for Writ of

Certiorari specify the manner .and time of raising the

federal questions sought to be reviewed to show the

federal questions were timely and properly raised to the

court of first instance and to the appellate courts. Peti-

tioners’ complete failure to comply with this requirement

is tacit acknowledgment a federal question was not ade-

quately raised in the respective Wisconsin Courts. Pursu-

ant to Rule 14.4, the failure on Petitioners’ part is

sufficient reascn alone for this Court to deny this petition.

10

Il. THE STATE COURT DECISION RESTS ON

INDEPENDENT AND ADEQUATE STATE

GROUNDS

The decision of the Wisconsin Court of Appeals rested

on Wisconsin statues, Wisconsin case law and Wisconsin

public policy. See 647 N.W.2d 413 (Ct. App. 2002). The

Wisconsin Court of Appeals, basing its decision on inde-

pendent and adequate state grounds, began by compre-

hensively setting forth the Wisconsin informed consent

law, as contained within both common law and statutory

provisions. Jd. at 417-18.

The Wisconsin Court of Appeals made it clear the

Wisconsin doctrine of informed consent, and the associated

exercise of decision-making, only become applicable when

there is a choice of viable medical alternatives. Jd. at 418.

The Court emphasized that, under Wisconsin law, peti-

tioners had no right to deny medical treatment to

Emanuel, therefore their premise, that they would have

elected to withhold or withdraw treatment if given more

information, was entirely faulty because denying treat-

ment was not a viable alternative. Id. at 418-19. Citing In

re Edna M.F. supra, 210 Wis. 2d at, 566-68, 563 N.W.2d

485 (1997), the Court reiterated, “withholding or with-

drawing life-sustaining medical treatment is not in the

best interests of any patient who is not in a persistent

vegetative state.” Id. at 49. Because Emanuel was not in a

persistent vegetative state, the Court held that under

Wisconsin law an alternative of withholding or withdraw-

ing treatment did not exist. The Court went on to find a

separate reason under federal statutory law, why no

medical alternative existed; however, the Wisconsin

grounds were clearly and expressly set forth as entirely

adequate and dispositive when considered alone. Id.

11

The Wisconsin Court of Appeals also based its decision

on Wisconsin public policy grounds, emphasizing Wiscon-

sin’s interest in preserving life is of “paramount signifi-

cance,” and a presumption exists under Wisconsin law

that continued life is in the best interest of individuals. Jd.

at 420-21. See L.W. v. L.E. Phillips Career Dev. Ctr., 167

Wis. 2d 53, 86, 90, 482 N.W.2d 60 (1992).

“This Court from the time of its foundation has

adhered to the principle that it will not review judgments

of state courts that rest on adequate and independent

state grounds.” Herb v. Pitcairn, 324 U.S..117, 125 (1945).

This Court’s “only power over state judgments is to correct

them to the extent that they incorrectly adjudge federal

rights.” Id. at 125-126; Ridgway v. Ridgway 454 U.S. 46,

54 (1981).

This Court’s jurisdiction is presumed to exist only if it

is not clear the state court relied on independent and

adequate state grounds, and when it fairly appears the

state court rested its decision primarily on federal law.

Michigan v. Eong, 63 U.S. 1082, 1042 (1983). To the extent

the Wisconsin Court of Appeals addressed federal statu-

tory law in its decision, it merely represented an addi-

tional basis for a decision that was clearly dispositive on

state grounds alone. By no means could the Wisconsin

‘Court of Appeals’ decision be categorized as resting pri-

marily on federal law. The decision below was fully and

independently supported by a combination of Wisconsin

statutory provisions and decisional law and, therefore, this

Court is without jurisdiction to consider this matter.

12

Ill. THE DECISION OF THE WISCONSIN COURT

IS IN ACCORD WITH EVERY DECISION OF

EVERY COURT TO RULE ON THE ISSUE

The Wisconsin decision is consistent with the deci-

sions of the courts of two (2) other states that heve faced

claims similar to those being made here: New Jersey and

Texas. Both courts were faced with cases involving parents

and a child suing health care providers for keeping a

premature baby alive without giving the parents the

option of refusing treatment so the baby would die. The

courts in New Jersey dealt with this issue in Iafelice v.

Zarafu, 534 A.2d 417 (N.J. App. Div. 1987). The Law

Division held the parents and child could not maintain

their claims, as there was no legal alternative to resuscita-

tion of the baby. The court summarized the case as follows:

However ironic it may seem, plaintiffs point to

the survival of their child as proof of damage.

The gravamen of plaintiffs’ complaint is that the

doctrine of informed consent obligated [the phy-

sician] to inform them of the option of non-

treatment. The parents expressed not only the

intent that [the baby] be free from medical

intervention, but that she be allowed to die.

Id. at 1042.

The trial court granted summary judgment dismissing

the plaintiffs’ claim. The Superior Court Law Division

affirmed the dismissal, as did the Appellate Division.

The Law Division framed the issue as: “In discharging

the duty of informed consent, is a physician negligent in

failing to inform parents of a newborn infant manifesting a

life-threatening condition . . . that they had the alternative of

13

non-treatment and letting the baby die?” Jd. at 1041. The

court held parents did not have that option.

The Jafelice decision was based on public policy

grounds. The court stated the right of the child to live

outweighed the right of the parents not to endure emo-

tional and financial injury. The court cited Berman uv.

Allen, 404 A.2d 8 (1979), a wrongful life case in which the

plaintiff’s claim was dismissed, for the proposition life is

to be cherished, regardless of whether it is experienced

with or without a disability:

One of the most deeply held beliefs of our society

is that life - whether experienced with or with-

out a major physical handicap — is more precious

than non-life. See In re Quinlan, 70 N.J. 10, 19 &

n.1 (1976). Concrete manifestations of this belief

are not difficult to discover. The documents

which set forth the principles upon which our so-

ciety was founded are replete with references to

the sanctity of life. * * * Nowhere in these docu-

ments is there to be found an indication that the

lives of persons suffering from physical handi-

caps are to be less cherished than those of non-

handicapped human beings.

* * *

We cannot, however, say that she would have

been better off had she never been brought into

the world .. . To rule otherwise would require us

to disavow the basic assumption upon which our

society is based. This we cannot do. [80 N.J. Su-

per. at 429, 430.]

Tafelice, 501 A.2d at 1047.

14

The Jafelice court decided the issue as follows:

This court determines that as of the time here

relevant, November 1980 and in the circum-

stances presented, there was no legal duty which

obliged the movants to inform the parents of an

infant suffering from a life-threatening condition

of an alternative to withhold treatment and to let

the child die. It is only “the alternatives to that

treatment, if any ...” [citations omitted] that a

physician must present and in the case at bar

death was not a legally-sanctioned alternative.

Id. at 1049.

The Appellate Division, adopting the decision by the

Law Division, further stated that:

The mistaken premise of this appeal is that al-

lowing the child to die untreated was a legally

viable alternative ... we find no support for the

belief that a newborn child may be put to death

through benign neglect on the mere expectation

that she will, in some unquantified way, be a de-

fective person. As the Supreme Court wrote in

Berman v. Allan, 80 N.J. Super. 421, 430 (1979),

“It is life itself that is jealously safeguarded, not

life in a perfect state.”

Iafelice, 534 A.2d at 418.

The Fourteenth Court of Appeals in Texas ruled in

favor of a hospital in a similar case. HCA, Inc., v. Miller,

36 S.W.3d 187 (Tex. Ct. App. 2000) (appeal pending), also

involved the birth of a premature baby. The baby was

resuscitated over the parents’ objections, and a wrongful

life/wrongful birth lawsuit based on the doctrine of in-

formed consent was filed against the corporation that

owned the hospital. Ajury awarded damages, however, the

cs ieee eta ieasiaea maaan arene

15

verdict was reversed on appeal because the choice of non-

treatment was not legally available to the parents. Jd. at

720. The Fourteenth Court of Appeals acknowledged

Texas’ policy interest in guarding the well-being of minors,

even where doing so requires limiting the freedom and

authority of parents over their children. Recognizing Texas

statutes allow a parent to discontinue medical care for a

terminally ill child, the Texas Court of Appeals refused to

extend that right to discontinue medical care for non-

terminally ill children, stating “the state’s interest in pre-

serving life is greatest when life can be preserved and then

weakens as the prognosis dims.” Jd. at 925. (Emphasis in

original, citation omitted.)

Petitioners frame this case in terms of parents’ rights

to raise their children, yet they fail to acknowledge they

have the right to raise their child. N ancy Montalvo and

Brian Vila merely lack the right to ensure Emanuel’s

death because he may, someday, have a disability. What

this case is truly about is the right of a child, born alive, to

be resuscitated and evaluated before further treatment

decisions are made. Here, Nancy Montalvo and Brian Vila

allege a right to decide not to render care for Emanuel

simply because he was at risk for developing a disability.

Wisconsin law makes it clear that a third party may not

choose death for a patient whose wishes are not known,

and who is not in a persistént vegetative state. In re Edna

M.F.,, supra.

16

CONCLUSION

This Court has no jurisdiction over this matter be-

cause no federal question was raised before the Wisconsin

Courts and because the decision of the Wisconsin Courts

rested on independent and adequate state grounds. Even

if a federal question had been raised, the decision of the

Wisconsin Courts is based on Wisconsin statutes, case law,

and public policy, and is consistent -with every other

decision of every state court to rule on this issue.

For all of the foregoing reasons, Respondents Brent W.

Arnold, M.D., Jonathan H. Berkoff, M.D., St Mary’s

Hospital of Milwaukee, the Wisconsin Patients Compensa-

tion Fund and Physicians Insurance Company of Wiscon-

sin respectfully request this Honorable Court deny the

Petition. t

Respectfully submitted,

LINDA E.B. HANSEN

Counsel of Record

PATTERSON, THEUNTE,

SKAAR, & CHRISTENSEN, LLC

2000 U.S. Bank Center

777 E. Wisconsin Avenue

Suite 2000

Milwaukee, WI 53202

(414) 276-0977

Attorneys for Respondents

Jonathan K. Berkhoff, M.D.,

and Physicians Insurance

Company of Wisconsin

17.

MICHAEL P. MALONE

SERENA E. POLLACK

HINSHAW & CULBERTSON

100 E. Wisconsin Avenue

Suite 2600

Milwaukee, WI 53202

(414) 276-6464

Attorneys for Respondent

Brent W. Arnold, M.D.

MARILYN M. CARROLL

KRAVIT, GASS, HOVEL & LEITNER

825 N. Jefferson Street

Milwaukee, WI 53202-3737

(414) 271-7100

Attorneys for Respondent

St. Mary’s Hospital of Milwaukee

TIMOTHY YANACHECK

BELL, GIERHART & Moore, S.C.

44 E. Mifflin Street

Suite 1000

Madison, WI 53701-1807

(608) 259-2309

Attorneys for Respondent

Wisconsin Patients

Compensation Fund