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Pierce v. Physicians Insurance Co. of Wisconsin2/17/2005
. Petitioner Bonnie Pierce (Pierce) seeks review of an unpublished per curiam decision of the court of appeals, which affirmed the circuit court's grant of summary judgment. This case presents the narrow issue of whether a mother who suffers the stillbirth of her infant as a result of medical malpractice has a personal injury claim involving negligent infliction of emotional distress, which includes the distress arising from the injuries and stillbirth of her daughter, in addition to her derivative claim for wrongful death of the infant. In these unusual circumstances, we conclude that the mother may recover as a parent, for the wrongful death of the stillborn infant; and as a patient, for her personal injuries including the negligent infliction of emotional distress. We also conclude the stipulation of the parties did not waive this claim. Accordingly, we reverse the decision of the court of appeals that affirmed the circuit court's order, which dismissed that portion of the mother's personal injury claim for negligent infliction of emotional distress arising from the injuries and stillbirth of her daughter.
I.
. The relevant facts of this case are undisputed. Bonnie Pierce was nearly 35 weeks pregnant when she arrived for an appointment with her obstetrician, Dr. Frederick Bartizal, Jr., (Bartizal) on November 18, 1996. Bartizal examined Pierce and determined that she was four centimeters dilated. She was subsequently admitted to TheDA Clark Regional Medical Center (TheDA Clark) for care.
. Later that day, while at TheDA Clark, Pierce noticed her fetal monitor flashing. A nurse explained to Pierce that her baby's heart rate was declining because the umbilical cord was wrapped around the baby's neck. The nurse repositioned Pierce, apparently believing that the problem would be solved. At 6:00 p.m., Bartizal visited Pierce to examine her and the fetal monitor readings. Bartizal examined Pierce for about 10 to 15 minutes and informed her that she was five centimeters dilated. He explained to her that if she did not go into labor that night, he would induce labor the next morning.
. Pierce fell asleep at approximately 12:45 a.m. without going into labor. At 1:30 a.m., she awoke as a nurse searched for the baby's heartbeat. After the first nurse was unable to find a heartbeat, a second nurse attempted to do so. The second nurse was also unable to detect a fetal heartbeat. In Bartizal's absence, the nurses called on Dr. Darr, who examined Pierce and performed an ultrasound. Doctor Darr informed Pierce that he was not able to detect the baby's heartbeat or any fetal activity. Shortly thereafter, Bartizal returned to the hospital to inform Pierce that her baby would be stillborn. Pierce was treated with an epidural and IV fluids before her baby, named Brianna, was delivered vaginally by vacuum extraction. Pierce kept Brianna with her for approximately 10 hours while she and family members had photographs taken with Brianna.
. On November 16, 1999, Pierce filed a claim in the Outagamie County Circuit Court alleging that Bartizal, TheDA Clark, and their respective insurers were liable for wrongful death and the negligent infliction of emotional distress. On the wrongful death claim, the defendants stipulated to their causal negligence and settled the claim. The other claim, negligent infliction of emotional distress, alleged that the defendants negligently caused Brianna's death and stillbirth, and that experiencing the baby's stillbirth caused Pierce physical injury and severe emotional distress.
. The defendants filed a motion for summary judgment on Pierce's claim for negligent infliction of emotional distress. The circuit court,
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