Full Opinion

2026 WI 29 CHARLIE MAY BREKKE, Plaintiff-Appellant, v. MIDWEST MEDICAL INSURANCE CO., et al., Defendants-Respondents. No. 2023AP498 Decided July 10, 2026 APPEAL from a judgment and order of the Winnebago County Circuit Court (Woldt, Scott C., J.) No. 2017CV360 Jill J. Karofsky, C.J., delivered the majority opinion of the Court, in which Rebecca Frank Dallet, Janet C. Protasiewicz, and Susan M. Crawford, JJ., joined. Brian K. Hagedorn, J., filed a concurring opinion. Susan M. Crawford, J., filed a concurring opinion in which Jill J. Karofsky, C.J., joined. Annette Kingsland Ziegler, J., filed an opinion concurring in part and dissenting in part. Rebecca Grassl Bradley, J., filed an opinion concurring in part and dissenting in part. ¶1 JILL J. KAROFSKY, C.J. The court of appeals certified to us the following question: Whether an unborn child (or any minor child) is a BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court patient under WIS. STAT. § 448.30 (2013–14)1 and thus entitled to informed consent with the independent right to pursue legal action against a physician who fails to comply with said statute. ¶2 We hold that Charlie May Brekke was a patient under § 448.30 before her birth. The physician who treated Charlie and her surrogate birth mother, Samantha,2 during the pregnancy and birth had a duty to obtain informed consent from Samantha regarding herself and Charlie. As Charlie was born alive, we determine she had an independent right to pursue an informed consent claim. Therefore, we reverse the circuit court’s decision granting partial summary judgment to the defendants and remand the case to the circuit court for further proceedings on Charlie’s informed consent claim. I. BACKGROUND ¶3 To provide context, we begin with the allegations underlying Charlie’s claims in this lawsuit. Then we recount the defendants’ arguments in support of their motion for partial summary judgment, the circuit court’s resolution of that motion, and the negligence claim that proceeded to trial. We then detail the parties’ arguments on appeal, and the narrow question the court of appeals asked this court to resolve. A. CHARLIE’S COMPLAINT ¶4 In November of 2015 Charlie May Brekke was born via a surrogate, Samantha. Charlie was injured during the birthing process and consequently filed a lawsuit in 2017 through a guardian ad litem along with her parents, Timothy Brekke and Chad Brekke.3 Charlie sued Dr. Craig M. Batley, the physician who delivered Charlie and provided 1 All references to the Wisconsin Statutes are to the 2013–14 version unless specified otherwise. To protect her privacy, we refer to the birth mother using the same 2 pseudonym as the court of appeals. United Healthcare Services, Inc. was also an involuntary plaintiff. 3 Timothy’s and Chad’s claims were dismissed with prejudice by stipulation. 2 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court Samantha with prenatal care, as well as Dr. Batley’s insurer Midwest Medical Insurance Co.4 ¶5 Prior to delivery, Samantha was diagnosed with gestational diabetes, which carries a risk of birthing macrosomic—or particularly large—babies. Indeed, Charlie weighed eleven pounds and five ounces at her birth. During Charlie’s birth, which occurred via a vaginal delivery, complications arose due to her large size. Specifically, Charlie alleges she suffered from shoulder dystocia which in turn caused her to suffer a brachial plexus injury, which has left her permanently limited and disfigured.5 ¶6 Charlie filed two claims against Dr. Batley: (1) a claim for negligence for his handling of Samantha’s pregnancy and delivery, and (2) a claim for failure to obtain informed consent under § 448.30 and Wisconsin common law. As to the second claim, she alleged that Dr. Batley breached his duty to disclose to Samantha and the Brekkes alternative modes of treatment and the risks and benefits of those treatments. This included failing to disclose the risk of shoulder dystocia and a permanent brachial plexus injury and failing to offer a cesarean section as an alternate mode of delivery. ¶7 As to both claims, Charlie alleges that Dr. Batley’s negligence and his failure to comply with § 448.30 proximately caused severe and permanent injury. Charlie seeks damages for that injury, as well as for her pain and suffering.6 4 Charlie additionally named Thedacare Physicians—Eastridge, Thedacare Medical Center—Berlin, Inc., and the Injured Patients and Families Compensation Fund. The Thedacare defendants and the Injured Patients and Families Compensation Fund were dismissed with prejudice by stipulation. This case will refer to the remaining defendants collectively as “Dr. Batley.” 5 Shoulder dystocia is a serious condition that occurs when a baby’s head delivers but a shoulder becomes lodged behind the maternal pubic bone. 6 The Brekkes also alleged that they suffered damages, but those allegations are not relevant to the issues before us. 3 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court B. THE CIRCUIT COURT RESOLUTION ¶8 Dr. Batley filed a motion for partial summary judgment as to the informed consent claim on one ground: under § 448.30, Dr. Batley owed a duty of informed consent only to Samantha, no one else, including Charlie. Dr. Batley argued that the informed consent claim failed as a matter of law because Samantha was the only person who received medical services during the labor, but she was not a plaintiff in the lawsuit. Dr. Batley highlighted how the terms of the surrogacy agreement provided that Samantha controlled all medical decisions about the pregnancy and birth until after Charlie’s birth. ¶9 Charlie responded that she has the right to bring an informed consent claim on her own behalf for treatment Dr. Batley provided to her during the pregnancy and birth.7 Charlie relied on § 448.30 and public policy grounds and argued that Dr. Batley owed Samantha and her separate duties to obtain informed consent. And if Dr. Batley breached his duty to disclose, Charlie reasoned, the inquiry would then be whether a “reasonable person in Charlie’s position, had they been capable of giving consent,” would have opted to be delivered by cesarean section. In reply, Dr. Batley took issue with Charlie’s “reasonable patient” argument. ¶10 After a hearing, the circuit court dismissed Charlie’s informed consent claim. The court reasoned that Samantha was Dr. Batley’s patient and that “[t]he informed consent would need to be given to the mother and no one else and that the claim would have to be brought through the mother . . . .” 7 Charlie also argued that Timothy Brekke, her biological father, had the right to receive information and provide consent relating to Charlie’s care prior to birth. Dr. Batley responded that Timothy was never Dr. Batley’s patient. On appeal, Charlie abandoned the argument that Dr. Batley owed any duty to Timothy Brekke (either on his own behalf or on Charlie’s behalf) and has focused only on the argument that Dr. Batley owed Samantha a duty under WIS. STAT. § 448.30 on Charlie’s behalf. 4 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court ¶11 Charlie’s negligence claim proceeded to a jury trial.8 Charlie introduced evidence to support her claim that Dr. Batley was negligent in delivering Charlie and in responding to the presentation of shoulder dystocia which caused Charlie’s injury and damages. Dr. Batley offered expert testimony to prove that he was not negligent and that Charlie’s injury occurred in the birth canal prior to the presentation of shoulder dystocia. The special verdict form included three questions: 1) Was Dr. Batley negligent in the delivery of Charlie Brekke? 2) Was Dr. Batley’s negligence a cause of Charlie Brekke’s brachial plexus injury? 3) What sum of money, will fairly and reasonably compensate Charlie Brekke for Past and Future Pain, Suffering, Disfigurement and Disability?9 The jury determined that Dr. Batley was not negligent, and it entered a slashed zero in response to the damages question. Charlie made no post- verdict motions with respect to damages. C. APPEAL AND COURT OF APPEALS CERTIFICATION ¶12 Charlie appealed the circuit court’s decision dismissing the informed consent claim on summary judgment. Charlie contended that Dr. Batley owed her a duty of informed consent under § 448.30 prior to her birth. Charlie further maintained that she could prove causation by showing that had she been properly informed, a “reasonable baby” in her position would have chosen to be delivered by cesarean section and consequently would have avoided her injuries. According to Charlie, although Samantha was the one to make that decision as the birth mother, the causation inquiry must consider only Charlie’s best interests. ¶13 Dr. Batley countered that § 448.30 does not create an independent right of recovery for Charlie and that the common law Charlie sought leave to appeal the circuit court’s partial summary 8 judgment order, which the court of appeals denied. 9The jury was instructed to answer the third question regardless of how it answered the first two questions. Charlie did not object to any of these questions. 5 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court recognizes no such right for an unborn child. Dr. Batley also asked the court of appeals to affirm the circuit court because he was entitled to summary judgment based on the facts and because Charlie could not re- litigate her claim for damages. ¶14 The court of appeals did not resolve these issues and instead certified the following question for our review: Whether an unborn child (or any minor child) is a patient under WIS. STAT. § 448.30 and thus entitled to informed consent with the independent right to pursue legal action against a physician who fails to comply with said statute. Brekke v. Midwest Med. Ins. Co., No. 2023AP498, unpublished slip op. ¶2 (Wis. Ct. App. Apr. 9, 2025). We granted certification and take jurisdiction over all issues in the case. WIS. STAT. § 808.05(2).10 II. STANDARD OF REVIEW ¶15 We review the circuit court’s grant of partial summary judgment de novo, applying the same methodology as the circuit court. DSG Evergreen Fam. Ltd. P’ship v. Town of Perry, 2020 WI 23, ¶15, 390 Wis. 2d 533, 939 N.W.2d 564. Summary judgment shall be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). The interpretation of WIS. STAT. § 448.30, presents a question of law which we review de novo. Bubb v. Brusky, 2009 WI 91, ¶32, 321 Wis. 2d 1, 768 N.W.2d 903. 10 Various separate writings insist that we are coloring outside the lines by deciding issues beyond the certified question presented. So, some procedural clarification is in order. When we answer a certified question from another jurisdiction, we answer only the specific question presented and return the case to the original jurisdiction. WIS. STAT. ch. 821. When we grant a petition for review, we often limit our review to specific questions or issues of law. WIS. STAT. § 809.62(6). However, when we accept certification from the court of appeals, as we did here, such a certification operates as a bypass under WIS. STAT. § 808.05. As such, we take jurisdiction over the entire appeal and may resolve all issues raised. We are not limited to answering the question as certified by the court of appeals. Indeed, it is our responsibility to address all relevant arguments made by the parties on appeal. 6 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court III. ANALYSIS ¶16 We begin with a brief history of the evolution of informed consent claims in Wisconsin. Then we examine WIS. STAT. § 448.30 and all relevant intrinsic sources. We hold that Charlie was a patient under the statute and that § 448.30(2) and (6) do not categorically relieve a physician of the duty to obtain informed consent before treating an unborn child. We next analyze whether Charlie’s claim is derivative of Samantha’s informed consent claim and determine it is not. We then examine whether finding in Charlie’s favor will lead to conflicts between pregnant patients and their unborn children and determine it will not. We conclude by rejecting Dr. Batley’s remaining arguments. A. WISCONSIN’S HISTORY OF INFORMED CONSENT AND Wis. Stat. § 448.30. ¶17 “The doctrine of informed consent comes from the common law and stems from the fundamental notion of the right to bodily integrity[.]” Martin v. Richards, 192 Wis. 2d 156, 169, 531 N.W.2d 70 (1995). In the past, when a medical professional failed to obtain informed consent, a patient would file a claim for tortious battery or assault and battery. See Throne v. Wandell, 176 Wis. 97, 101, 186 N.W. 146 (1922) (“An operation without the consent of a patient” who is capable of consultation “constitutes a technical assault.” (citations omitted)). Such a claim was extended to a patient who was not adequately advised of the potential ramifications of treatment before giving consent because a lack of relevant information vitiated the consent. See Trogun v. Fruchtman, 58 Wis. 2d 569, 597–98, 207 N.W.2d 297 (1973) (explaining the development of theories of informed consent). In the 1970s Wisconsin shifted away from a battery theory of recovery to one of negligence. Id. at 598–600 (“[I]t is preferable to affirmatively recognize a legal duty, bottomed upon a negligence theory of liability, in cases wherein it is alleged the patient-plaintiff was not informed adequately of the ramifications of a course of treatment.”). ¶18 In Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975), this court clarified the limits of a negligence-based informed consent case. There, we stated that “the doctor is to make such disclosures as appear reasonably necessary under circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of disclosure to intelligently exercise his right to consent or to refuse the treatment or procedure proposed.” Id. at 13. We also discussed reasonable limitations on a doctor’s duty to disclose and determined that a doctor need not 7 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court discuss: (1) detailed medical explanations that a patient is unlikely to understand, (2) risks apparent to a patient, or (3) extremely remote possibilities that serve to falsely or detrimentally alarm a patient. Id. at 12– 13. Also, a doctor’s duty is limited in cases of emergency, if the patient is mentally incompetent, or if the patient is a child. Id. And “[c]onsent in case the patient is a child is probably the obligation of the parent or guardian.” Id. at 13 n.3. Finally, we clarified that on the question of causation, an objective standard is applied, which asks what a reasonable person in the patient’s position would have decided if adequately informed of all relevant information. Id. at 13–14. ¶19 In 1981, the Wisconsin legislature passed WIS. STAT. § 448.30, codifying a physician’s duty to inform a patient about treatment. Chapter 375, Laws of 1981. In the following years, cases interpreting § 448.30 treated that statute as a codification of the common law standard articulated in Scaria. See Schreiber v. Physicians Ins. Co. of Wis., 223 Wis. 2d 417, 427, 588 N.W.2d 26 (1999); Martin, 192 Wis. 2d at 174. In 2013, the legislature revised § 448.30 to incorporate a “reasonable physician” standard. 2013 Wis. Act 111. Section 448.30, presently and at the time of Charlie’s birth, reads: 448.30 Informed Consent. Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances. The physician’s duty to inform the patient under this section does not require disclosure of: (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. 8 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court (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 incapable of consenting. (7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient. B. CHARLIE MAY BREKKE WAS A PATIENT UNDER Wis. Stat. § 448.30. ¶20 Our task is to determine whether an unborn child in Charlie’s position is a “patient” under WIS. STAT. § 448.30. “[S]tatutory interpretation begins and is usually complete only after a full consideration of all relevant intrinsic sources” including “the statutory text at issue, related statutes and phrases, a statute’s place within the statutory structure, its stated or textually manifest purpose, and statutory history.” Serv. Emp. Int’l Union Healthcare Wis. v. WERC, 2025 WI 29, ¶¶8, 10, 416 Wis. 2d 688, 22 N.W.3d 876. Statutory language is to be interpreted “reasonably, to avoid absurd or unreasonable results.” Myers v. DNR, 2019 WI 5, ¶30, 385 Wis. 2d 176, 922 N.W.2d 47 (citations omitted). ¶21 As an initial matter, § 448.30 does not define “patient.” Other Wisconsin statutes related to healthcare or healthcare records define “patient” as “a person who receives health care services from a health care provider.” WIS. STAT. §§ 146.81(3), 153.01(7). This meaning is consistent with the common understanding of the term as well as the dictionary definition. Patient, The American Heritage Dictionary of the English Language (3d ed. 1992) (“One who receives medical attention, care, or treatment.”). ¶22 Charlie argues that “[t]here can be no serious dispute that Charlie was Dr. Batley’s patient directly before her birth.” She points to two Wisconsin decisions that recognize an unborn child during the birthing process as a “patient”: (1) Pierce v. Physicians Ins. Co. of Wis., Inc., 2005 WI 14, ¶28, 278 Wis. 2d 82, 692 N.W.2d 558, in which this court recognized that “there are two patients” in the context of a mother pursuing a claim for negligent infliction of emotional distress stemming from the stillbirth of her daughter; and (2) Preston v. Meriter Hosp., Inc., 2008 WI App 25, 307 Wis. 2d 704, 747 N.W.2d 173, in which the court of 9 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court appeals applied the Emergency Medical Treatment and Labor Act to an unborn child during labor as an “inpatient.” ¶23 In response, Dr. Batley hedges his arguments. On one hand, he concedes that prior to Charlie’s birth he had ethical and professional obligations to Charlie, and he owed Charlie a duty of reasonable care. He further admits that Charlie could bring a negligence claim against him for actions that occurred prior to her birth. Dr. Batley also acknowledges in briefing that he “cannot discern the legislature’s intent as to whether an unborn or minor child is or should be a ‘patient’ within the meaning of WIS. STAT. § 448.30.” Nonetheless, Dr. Batley does not concede that Charlie was a patient under the statute. He leans on guidance from an American College of Obstetricians and Gynecologists (ACOG), Committee Opinion that posits, “it is more helpful to speak of the obstetrician-gynecologist as having beneficence-based motivations toward the fetus of a woman who presents for obstetric care and a beneficence-based obligation to the pregnant woman who is the patient.” Am. Coll. of Obstetricians & Gynecologists, Committee Opinion No. 664, Refusal of Medically Recommended Treatment During Pregnancy, OBSTETRICS & GYNECOLOGY, 3 (2016) (italics in original). During oral argument Dr. Batley continued to insist that Charlie is not a patient under the statute, but he did not elaborate on how the ACOG guidance advanced his argument. ¶24 We determine that Charlie was Dr. Batley’s patient prior to her birth. Dr. Batley indisputably provided medical care to Charlie by, for example, monitoring her condition, conducting an ultrasound, monitoring her vitals at the hospital, and being prepared to otherwise intervene. And while Pierce, 278 Wis. 2d 82, and Preston, 307 Wis. 2d 704, were not informed consent cases—and not dispositive to our question here—those decisions are persuasive in that each confirms a common and reasonable understanding that a “patient” can include an unborn child. As Dr. Batley was providing medical care for Charlie prior to her birth, she was his patient. ¶25 Of import, an informed consent claim is an iteration of a negligence claim. Rather than a general duty of care, it specifies a certain professional duty, now codified in § 448.30. In other words, an informed consent claim is a claim that a physician negligently failed to properly inform a patient. We see no legal reason why Dr. Batley would owe a duty of reasonable care to Charlie or owe professional or ethical obligations to Charlie, but he would not owe a similar duty to Charlie as his patient in 10 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court the context of informed consent.11 Based on the above, we conclude that Charlie was a “patient” under § 448.30. C. Wisconsin Stat. § 448.30(2) AND (6) DO NOT RELIEVE A PHYSICIAN OF THEIR DUTY TO INFORM WHEN PROVIDING TREATMENT TO ALL MINOR AND UNBORN CHILDREN. ¶26 Dr. Batley contends that, even assuming Charlie was a patient, summary judgment was appropriate because two statutory exceptions relieve him of the duty to obtain informed consent when providing treatment to Charlie. Dr. Batley relies on § 448.30(2) which says that physicians are not required to disclose “[d]etailed technical information that in all probability a patient would not understand,” and § 448.30(6) which says physicians are not required to disclose “[i]nformation in cases where the patient is incapable of consenting.” Dr. Batley argues that Charlie, both before and after birth, could not understand technical information and was incapable of consenting. ¶27 We first dispatch with Dr. Batley’s argument regarding § 448.30(2). Subsection (2) concerns a category of information that 11 This holding is consistent with Vandervelden v. Victoria, 177 Wis. 2d 243, 502 N.W.2d 276 (Ct. App. 1993). In Vandervelden the plaintiff brought a battery action against a physician for an unsuccessful abortion attempted when the plaintiff was at less than eight weeks of gestation. Id. at 247. The physician argued he could not be held liable for battery because he obtained consent from the birth mother to perform the procedure. Id. The circuit court permitted the battery claim to proceed after determining that the birth mother’s consent was irrelevant to the fetus and that the fetus themself would have to provide consent. Id. The court of appeals reversed, determining that the birth mother’s consent was relevant to the fetus and shielded the physician from liability. Id. at 248–49. In that context, the court clarified that the notion of independent fetal consent had “no basis in the law.” Id. at 251. The court determined that there may be a negligence claim against the physician, but no battery claim. Id. at 253. We take zero issue with Vandervelden’s conclusion that there is no basis in law to support the idea that an unborn child themself can give or withhold consent. Additionally, we confirm that a birth mother may provide informed consent on behalf of an unborn child. Finally, Vandervelden recognized that the plaintiff may have a claim for negligence, just as we recognize that modern informed consent law is based in negligence and not battery. 11 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court physicians need not convey: detailed technical information. It does not concern whether the specific patient being treated is capable of understanding the information conveyed. This is evidenced by the use of the general article “a patient” in subsection (2), as opposed to the specific article “the patient” as used in subsections (3) through (7). Although subsections (3) through (7) reference circumstances that may change from patient to patient, subsection (2) is the same for any patient. There is no argument or suggestion that the risk of shoulder dystocia or the alternative of a cesarean section fall into the category of detailed technical information that a patient would not understand under § 448.30(2). ¶28 Now, turning to § 448.30(6). Dr. Batley’s interpretation of § 448.30(6) would categorically excuse a physician from a duty to provide information before obtaining consent to treat any minor child or incompetent person since neither category of people is capable of giving legal consent. Section 448.30 establishes that physicians have a uniform duty to provide adequate information before obtaining consent (when circumstances allow).12 Under Dr. Batley’s interpretation, the exception would swallow the rule. The language of the statute does not permit such broad and categorical exceptions to the general rule. Indeed, when the legislature makes rules or exceptions for minors, they generally do so expressly.13 But here, there is no reference to age or any indication that all minor children are categorically outside the scope of § 448.30. ¶29 Also, Scaria, which recognized the common law cause of action for informed consent prior to the passage of § 448.30, acknowledged that consent for a minor would likely be provided by a parent or guardian. Scaria, 68 Wis. 2d at 13 n.3. If § 448.30 was intended to contravene the common law expectation that a parent or guardian would provide informed consent on behalf of a minor child, the legislature 12 See generally, Schreiber v. Physicians Ins. Co. of Wis., 223 Wis. 2d 417, 427, 588 N.W.2d 26 (1999); Martin v. Richards, 192 Wis. 2d 156, 169, 531 N.W.2d 70 (1995); Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 12–13, 227 N.W.2d 647 (1975). 13 See, e.g., WIS. STAT. §§ 103.64–103.82 (establishing various rules and exceptions related to minors in employment regulation); WIS. STAT. § 155.10 (specifying various duties that must be done by one “who has attained age 18” in the context of a power of attorney for health care). 12 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court would need to be explicit. See Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d 833 (“A statute does not change the common law unless the legislative purpose to do so is clearly expressed in the language of the statute.”). ¶30 The only reasonable interpretation of the statute requires that a physician provide the necessary information to the individual making medical decisions on behalf of the patient (so long as no other exceptions apply). This ensures that the medical decisionmaker has the requisite information in order to give informed consent.14 ¶31 This interpretation is also consistent with other relevant provisions of the Wisconsin statutes. For example, WIS. STAT. ch. 155 governs power of attorney for health care. It says that unless provided otherwise, “the health care agent who is known to the health care provider to be available to make health care decisions for the principal has priority over any individual other than the principal to make these health care decisions.” WIS. STAT. § 155.20(1). This provision clearly contemplates that health care providers must obtain consent from a health care agent before providing medical care in some circumstances. It would be inconsistent if the legislature required a physician to obtain consent in this circumstance, but did not require a physician to appropriately inform a health care agent before obtaining that consent. ¶32 In addition, several statutes require informed consent from a parent or guardian before medical testing or treatments may be pursued for a child. See WIS. STAT. § 51.61(6) (requiring informed consent of a parent or guardian for a minor receiving mental health services under that chapter with some exceptions); § 253.115(6)(b) (requiring parents or guardians be given full information and the opportunity to object before an infant hearing screening is performed); § 253.13(3) (requiring parents or guardians be given full information and the opportunity to object before tests for congenital disorders are performed). It would make little sense 14 Amici appear to agree on this point. The American Medical Association, Wisconsin Medical Society, Wisconsin Hospital Association, and American College of Obstetricians & Gynecologists, acknowledge in their joint brief that the informed consent doctrine “is a bilateral duty that exists between the physician providing information and the person responsible for providing consent, either as the patient or for the patient.” (emphasis added). 13 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court for the legislature to single these procedures out as requiring informed consent from a parent or guardian, but to allow other significant health care decisions—such as a decision for a child to undergo surgery or receive cancer treatment—to be made without informed consent.15 ¶33 To summarize, Charlie was Dr. Batley’s patient prior to birth, Samantha exercised consent to medical treatment on behalf of both herself and Charlie, and Samantha was capable of providing consent. As such, Dr. Batley had a duty pursuant to § 448.30 to obtain informed consent from Samantha on Charlie’s behalf. D. SAMANTHA NEED NOT BE JOINED AS A PARTY. ¶34 Dr. Batley next contends that, even if he was required to obtain informed consent from Samantha on Charlie’s behalf, only Samantha may bring an informed consent claim to recover Charlie’s damages. According to Dr. Batley, even assuming Charlie could pursue an informed consent claim, it would be derivative of Samantha’s claim, or Samantha would have to be joined to the suit under WIS. STAT. § 803.03. Since Samantha did not bring this action and was not joined to this case as a plaintiff, Dr. Batley believes Charlie’s claim cannot survive and summary judgment was therefore appropriate. We disagree. ¶35 We first reject Dr. Batley’s contention that Charlie’s claim is derivative. “[A] derivative claim arises from the tort injury to another; it does not have its own elements of proof that are distinct from the negligence claim to which it attaches; and it must be joined in the same action that brings the primary personal injury claim.” Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶63, 319 Wis. 2d 1, 768 N.W.2d 615. To succeed on a negligence claim, including an informed consent claim, a plaintiff must prove four elements: (1) duty, (2) breach, (3) causation, and (4) damages. Hubbard v. Neuman, 2024 WI App 22, ¶21, 411 Wis. 2d 586, 5 N.W.3d 852. 15 This court has previously recognized a child’s claim pursuant to WIS. STAT. § 448.30 under the theory that the child’s father was owed additional information. See Martin, 192 Wis. 2d 156. Although the parties did not directly litigate the issue of whether a physician owes a duty to inform a child’s parent under § 448.30, we allowed the claim to survive after a thorough review of the history and applicability of § 448.30. Id. 14 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court ¶36 Dr. Batley’s argument is flawed because he does not account for the fact that he owed two independent duties: (1) a duty to inform Samantha on Samantha’s behalf, and (2) a duty to inform Samantha on Charlie’s behalf. While Dr. Batley’s duty to Charlie had to be discharged through Samantha, the duty was to Charlie herself. Samantha had the right to provide consent for any medical treatment that affected her body, but she also carried the right, on Charlie’s behalf, to provide consent for medical treatment that affected Charlie. As such, Charlie’s informed consent claim is not reliant on Samantha establishing negligence as to herself. ¶37 Rather, Charlie’s claim is that: Dr. Batley owed a duty to Charlie to properly inform Samantha of the reasonable alternate modes of treatment and the benefits and risks of these treatments to Charlie under § 448.30; Dr. Batley breached that duty to Charlie by failing to inform Samantha of the risk of shoulder dystocia and the availability of a cesarean section; and Charlie was damaged as a result. These elements are yet to be proven, but each element is distinct as to Charlie and separate from any tort claim Samantha might bring. ¶38 Indeed, it is helpful to conceptualize Charlie’s claim as akin to a claim for fetal injury, which we have recognized attaches to a child, not the child’s parents, once the child is born alive. See State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 130–31, 561 N.W.2d 729 (1997) (describing how injuries suffered before birth “impose a conditional liability on the tort-feasor” which attaches or becomes actionable once the child is born and becomes a legal person (quoting Puhl v. Milwaukee Auto. Ins. Co., 8 Wis. 2d 343, 356, 99 N.W.2d 163 (1959), overruled on other grounds by In re Stomsted Estate, 99 Wis. 2d 136, 299 N.W.2d 226 (1980))). As Charlie was born alive, her informed consent claim attaches to Charlie herself, and the claim is not derivative.16 16 Justice Bradley cites Wisconsin’s feticide statute, WIS. STAT. § 940.04, to decry our determination that, as she was born alive, Charlie had an independent right to pursue an informed consent claim. Justice Bradley’s concurrence/dissent, ¶88. Reliance on that statute is a red herring. Setting aside that the definitions of “unborn child” the concurrence/dissent cites are explicitly limited to “in this section,” see § 940.04(6), and “in this chapter,” § 48.02, and therefore not relevant to § 448.30, nothing said is relevant to our holdings in this case related to the existence of a § 448.30 claim for Charlie. 15 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court ¶39 Similarly, we see no reason why Samantha would be a necessary party to Charlie’s claim under § 803.03.17 Dr. Batley’s arguments on this topic are underdeveloped and conclusory. Dr. Batley argues that Samantha need not pursue a claim on her own behalf to be a necessary party under § 803.03, but Dr. Batley cites nothing in support of this position and does not address how § 803.03 operates if Samantha has no claim at all, as is the case here. Therefore, we reject Dr. Batley’s argument that Charlie’s informed consent claim must fail because Samantha is not a party to this lawsuit. E. HOLDING THAT CHARLIE IS A PATIENT UNDER Wis. Stat. § 448.30 DOES NOT CREATE CONFLICT BETWEEN PREGNANT PATIENTS AND THEIR UNBORN CHILDREN. ¶40 Charlie’s appeal has focused significantly on how her claim would proceed if she is determined to be a patient under § 448.30. She contends that the causation question should be whether a “reasonable baby” in Charlie’s position would have chosen to be born via a cesarean section. She has also argued that although Samantha has the right to provide informed consent on behalf of Charlie, “only Charlie’s best interests would be material to [Samantha’s] analysis.” In response, Dr. Batley argues that our holding could create conflicts between the duty owed to pregnant patients and the duty owed to unborn children. 17 WISCONSIN STAT. § 803.03(1) reads: (1) PERSONS TO BE JOINED IF FEASIBLE. A person who is subject to service of process shall be joined as a party in the action if: (a) In the person’s absence complete relief cannot be accorded among those already parties; or (b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may: 1. As a practical matter impair or impede the person’s ability to protect that interest; or 2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest. 16 BREKKE v. MIDWEST MEDICAL INSURANCE CO. Opinion of the Court According to Dr. Batley, such implications would be “dire.” ¶41 We pause here to address these arguments and clarify that Charlie’s status as a patient under § 448.30 does not create conflict between pregnant patients and their unborn children. For one thing, the duty under § 448.30 is to inform. There is no conflict in simply giving a pregnant patient full and complete information about reasonable alternate modes of treatment and the benefits and risks of those treatments to both herself and the unborn child. Although the common law obligation underpinning the duty to infor