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Keywords

plaintiffnegligencesustained

plaintiffjury instructions

Related Cases

Vandervelden v. Victoria, 177 Wis.2d 243, 502 N.W.2d 276

Facts

On January 10, 1979, Linda Noie, six to eight weeks pregnant, sought an abortion at Fox Valley Reproductive Health Care Services, accompanied by the child's father, Brian Rusch. After discussing the procedure, they returned to the clinic, where Linda signed consent forms, and Dr. Victoria performed the abortion. The procedure was unsuccessful, and Linda later gave birth to Joshua on September 18, 1979, who suffered from health issues attributed to the failed abortion. In 1989, Joshua filed a battery claim against Dr. Victoria, alleging injuries from the procedure.

On January 10, 1979, the plaintiff's mother, Linda Noie, then six-to-eight weeks pregnant with plaintiff, went to the Fox Valley Reproductive Health Care Services to obtain information about an abortion.

Issue

Whether a physician who performs an unsuccessful abortion procedure on a non-viable fetus can be held liable for battery against the unborn fetus when the mother has freely given consent to the abortion.

Dr. Victoria argues the only consent that a physician need obtain before performing an abortion or any other medical procedure on a pregnant woman is that of the woman herself.

Rule

A battery is defined as the unlawful and intentional use of force upon the person of another, resulting in physical harm. To establish a battery, a plaintiff must prove unlawful contact, intentional direction of force, and bodily harm. Consent from the mother is sufficient for medical procedures performed on a fetus.

As defined in the Wisconsin Civil Jury Instructions, a battery is: the unlawful and intentional use of force and violence upon the person of another, resulting in the infliction of physical harm to such other.

Analysis

The court found that since Linda Noie had freely consented to the abortion procedure, Dr. Victoria's actions could not be deemed unlawful contact with the fetus. The court emphasized that the mother's consent was valid and that the procedure, although unsuccessful, was legal. Therefore, Joshua could not establish the first element of battery, as there was no unlawful contact by Dr. Victoria.

In the present case, Joshua has failed to satisfy the first element of a battery—that of unlawful contact by Dr. Victoria. Neither party disputes the fact that Ms. Noie gave her consent for the medical procedure performed by Dr. Victoria.

Conclusion

The court reversed the judgment in favor of Joshua for battery, concluding that negligence law, not battery law, should govern claims for injuries sustained in utero due to medical procedures performed with the mother's consent.

In conclusion, where a woman has freely consented to an abortion procedure on a non-viable fetus, a physician may not be held liable for a battery to the unborn fetus.

Who won?

Dr. Victoria prevailed in the case because the court determined that he could not be held liable for battery against the fetus, given the mother's consent to the abortion procedure.

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