# Opposition Brief — Montalvo v. Borkovec

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 907

## Text

: =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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0959%3A2. Public record. Not legal advice.