¶ 1. N. PATRICK CROOKS, J.

Petitioner Bonnie Pierce (Pierce) seeks review of an unpublished per curiam decision of the court of appeals, which affirmed the circuit court's grant of summary judgment.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

¶ 2. 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.

¶ 3. 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.

¶ 4. 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.

¶ 5. 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.

¶ 6. The defendants filed a motion for summary judgment on Pierce's claim for negligent infliction of emotional distress. The circuit court, Judge James T. Bayorgeon presiding, granted the motion in part. Judge Bayorgeon relied on both Wis. Stat. ch. 655 and Wis. Stat. § 893.55, as well as Kwaterski v. State Farm Mutual Automobile Insurance Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967), to dismiss that portion of Pierce's claim for the negligent infliction of emotional distress arising from the injuries and stillbirth of her daughter. The court held that the plaintiff could only recover for the emotional pain and suffering damages that resulted from her own injuries. Subsequently, the parties agreed to a stipulation that Bartizal and Theda Clark were negligent in the management of labor, and that such negligence caused the death of Brianna. The stipulation provided that the defendants would pay damages for loss of society and companionship and for funeral expenses. Based on a second stipulation, the other claims were dismissed, with the exception of the claims that were dismissed by the court pursuant to the court's order of August 20, 2001, which claims were before the court on the motion for partial summary judgment.

¶ 7. On October 11, 2003, the court of appeals affirmed the circuit court's grant of summary judgment. The court of appeals relied on Finnegan v. Patients Compensation Fund, 2003 WI 98, 263 Wis. 2d 574, 666 N.W.2d 797, and Bowen v. Lumbermens Mutual Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), to determine that Pierce did not satisfy the legal standard for recovery of emotional damages related to Brianna's stillbirth. The court of appeals concluded that Pierce did not satisfy the three-prong test of Bowen, which had recently been applied to plaintiffs' claim in Finnegan. Specifically, the court held that while Pierce observed her daughter suffering, she did not witness the extraordinary event that caused her daughter's suffering — the umbilical cord wrapped around Brianna's neck. Additionally, the court noted that while Pierce's physician may have been negligent in waiting to induce labor, he did not cause the umbilical cord to wrap around the baby's neck. In response, Pierce filed a motion for reconsideration that the court denied on December 4, 2003.

¶ 8. This court granted Pierce's petition for review. Oral arguments were held on April 28, 2004. On June 16, 2004, we ordered the parties to file supplemental briefs addressing the following issues:

1. Was the Circuit Court mistaken in its reliance on the case of Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967) for its conclusion that: "A mother's injuries do not include the injury to or death of a child as part of her own injuries?"

2. Is it appropriate, under relevant case law, to separate or compartmentalize Bonnie Pierce's claimed emotional injury into what is related to her own pain and suffering (including emotional distress) resulting directly from the physical discomfort of child birth, as against her pain and suffering (including emotional distress) resulting from the medical malpractice that caused the death and stillbirth of her child, Briana Lynn Marcks?

3. Did the Stipulation which resulted in the Circuit Court's Order of October 3, 2001, in effect waive either claim referenced in question number 2 that Bonnie Pierce had for her own pain and suffering, including her own claimed emotional injury?

¶ 9. Additional oral arguments were heard on November 3, 2004.

II

¶ 10. The focus of this case is on whether Pierce may bring a claim which includes the negligent infliction of emotional distress arising from the injuries and stillbirth of her daughter, under the undisputed factual circumstances. This is a question of law that we review de novo, independently of the reasoning of the circuit court and the court of appeals, but benefiting from their analyses. See, e.g., Beloit Liquidating Trust v. Grade, 2004 WI 39, ¶ 17, 270 Wis. 2d 356, 677 N.W.2d 298 (question of law whether complaint states a claim); see also State v. Lombard, 2004 WI 95, ¶ 17, 273 Wis. 2d 538, 684 N.W.2d 103 (statutory interpretation is a question of law, subject to de novo appellate review).

¶ 11. Wisconsin Stat. ch. 655 governs claims in the event of medical malpractice. According to Wis. Stat. § 655.007, "any patient or . . . any . . . parent . . . of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter." Wisconsin Stat. § 655.017 limits the noneconomic damages recoverable to those individuals listed in Wis. Stat. § 893.55(4). Section 893.55(4)(a) caps noneconomic damages, defined in part as "pain and suffering; . . . mental distress. . . ." "Notwithstanding the limits on noneconomic damages under this section, damages recoverable against health care providers . . . for wrongful death are subject to the limit under s. 895.04(4)." Section 893.55(4)(f). Wisconsin Stat. § 895.04(4), in turn, separately caps damages "in the case of a deceased minor . . . for loss of society and companionship (which) may be awarded to the . . . parents of the deceased. . . ."

¶ 12. Here, we have the unique situation where the patient, Bonnie Pierce, was also the parent of the patient, Brianna Lynn Marcks. There is no dispute that Pierce has the derivative claim of a parent for the wrongful death of Brianna under Wis. Stat. § 655.007. It is Pierce's direct claim for emotional distress that is at issue.

¶ 13. The court of appeals characterized Pierce's direct claim for negligent infliction of emotional distress as a bystander claim. That is, that Pierce was merely a witness to the stillbirth of her daughter Brianna and could recover only if she met the test we set forth in Bowen and Finnegan. We conclude differently. Because of the unusual position of Pierce, as a mother in labor, the result of which was a stillbirth, she clearly was not a witness to the "gruesome aftermath" of an automobile accident that eventually resulted in the death of her child, as was the case in Bowen, 183 Wis. 2d at 634-35. Nor was Pierce the witness of "the physical deterioration and death" of her child, as was the case in Finnegan, 263 Wis. 2d 574, ¶ 20. Rather, she was a participant, and a victim of the actionable conduct — medical malpractice — that gave rise to her claim. Accordingly, Bowen and Finnegan are inapposite.

¶ 14. We find that the circumstances here are strikingly similar to those in Westcott v. Mikkelson, 148 Wis. 2d 239, 434 N.W.2d 822 (Ct.App. 1988). There, the mother, Karla Westcott, brought a claim of negligent infliction of emotional distress against an attending physician for injuries related to the delivery of her son, who was asphyxiated by the umbilical cord that had wrapped around his neck, resulting in stillbirth. The court of appeals concluded that Westcott was not a witness or observer of the cause of the emotional distress, but instead a participant. The court said that in determining whether Westcott "is an observer or a participant, it is difficult to imagine a more clear-cut example of the latter than a mother giving birth to a child in distress." Id. at 242.

¶ 15. The same conclusion applies here. It is difficult to imagine that Bonnie Pierce was anything other than a participant, directly involved in the tortious activity that resulted in the stillbirth of Brianna. Accordingly, she can maintain a direct claim for injuries that resulted from that activity. Wisconsin Stat. § 655.007 contemplates such a result, namely, that a patient who has suffered medical malpractice can bring a direct claim. The fact that the same patient may also have a derivative claim for wrongful death is unusual, and likely to arise only in the unique circumstances presented in cases like this where the patient is also a victim/participant in the events at issue.

¶ 16. The court of appeals concluded that Bowen effectively overruled Westcott. Pierce v. Physicians Ins. Co. of Wis., Inc., No. 01-2710, unpublished slip op., ¶ 24 n. 6 (Wis.Ct.App. Nov. 11, 2003). We disagree. Westcott followed Garrett v. City of New Berlin, 122 Wis. 2d 223, 362 N.W.2d 137 (1985), where Connie Garrett pursued a claim for emotional distress based upon a police officer running over her brother with a police car. The officer had been pursuing a group of children, including the two of them, at an outdoor theater. We concluded that "Connie Garrett was not merely an observer who was not directly involved in the tortious activity. She was an object of the police officer's activities since she was a member of the group of children he was pursuing." Id. at 232. In Garrett, we also distinguished the circumstances there from the situation in Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935), where the court refused to recognize a claim for negligent infliction of emotional distress for a mother who witnessed the automobile accident that killed her child. The mother was not in peril herself. See Westcott, 148 Wis. 2d at 241.

¶ 17. Consequently, when Bowen rejected Waube's "zone of danger" rule, it did not, as the court of appeals concluded, undermine Westcott. We continue to recognize a claim for negligent infliction of emotional distress where the claimant is directly involved in the tortious activity. Bowen did nothing to change this.

¶ 18. Other courts have adopted a similar approach where the tortious activity results in the stillbirth of a child and have allowed both a derivative claim for wrongful death and a direct claim for negligent infliction of emotional distress. For example, in Vaillan-court v. Medical Center Hospital of Vermont, Inc., 425 A.2d 92 (Vt. 1980), the Vermont Supreme Court allowed recovery for both the wrongful death of the viable fetus and the emotional distress of the mother. Id. at 143. In Johnson v. Ruark Obstetrics and Gynecology Associates, 395 S.E.2d 85 (N.C. 1990), the North Carolina Supreme Court also recognized a claim for negligent infliction of emotional distress related to the inadequate prenatal care, which allegedly caused the stillbirth of a child, in addition to allowing recovery for a wrongful death claim.

¶ 19. Here, the circuit court erred in determining that Bonnie Pierce "may not seek relief for the emotional distress associated with the injuries and death of her stillborn infant," but could only "seek relief for emotional distress connected to her own injuries." The circuit court came to that conclusion based upon an interpretation of our decision in Kwaterski, that a "mother's injuries do not include the injury to or death of a child as part of her own injuries."

¶ 20. Just as Bowen and Finnegan are not applicable, neither is Kwaterski. Kwaterski presented the "narrow issue" of "whether an eighth-month, viable unborn child, whose later stillbirth is caused by the wrongful act of another, is `a person' within the meaning" of the wrongful death statute (then Wis. Stat. § 331.03; now Wis. Stat. § 895.03). Kwaterski, 34 Wis. 2d at 15. At the time this court decided Kwaterski, in 1967, only a handful of states allowed wrongful death recovery for a stillborn infant. Id. at 18-19. Twenty-eight years later:

The overwhelming majority of states now permit some form of recovery for the loss of a fetus. For example, approximately ten states and the District of Columbia recognize a common law cause of action for mental anguish suffered as a result of the loss of a fetus. In addition, approximately thirty-six states and the District of Columbia recognize a wrongful death cause of action for the loss of a viable fetus. Most of these states characterize a viable fetus as a "person" or "minor child" under their wrongful death statutes.

Krishnan v. Sepulveda, 916 S.W.2d 478, 480-81 (Tex. 1995) (footnotes omitted).

¶ 21. The passage in Kwaterski that the circuit court relied upon, that "we know of no court that has permitted a plaintiff mother to include injury to or death of a child as part of her injuries," was the explanation for this court's rejection of other courts' reasoning denying wrongful death recovery for a stillborn infant on the basis that "[s]ince the child is part of the mother, the wrong will be remedied if the mother sues and recovers for her injuries." Kwaterski, 34 Wis. 2d at 22. It did not, contrary to the circuit court's conclusion, foreclose a claim for emotional injuries sustained by the mother as a result of the stillbirth. Moreover, as noted above, a number of states since Kwaterski have allowed the plaintiff mother to recover, including recovery for negligent infliction of emotional distress. See, e.g., Vaillancourt, 425 A.2d 92; Johnson, 395 S.E.2d 85; see also Krishnan, 916 S.W.2d at 480 n. 2.

¶ 22. Instead of restricting the remedy for a stillbirth to the mother's claim for her own injuries, we concluded in Kwaterski that a wrongful death remedy would ameliorate likely "incongruous results":

If no right of action is allowed, there is a wrong inflicted for which there is no remedy. Denying a right of action for negligent acts which produce a stillbirth leads to some very incongruous results. For example, a doctor or a midwife whose negligent acts in delivering a baby produced the baby's death would be legally immune from a lawsuit. However, if they badly injured the child they would be exposed to liability. Such a legal rule would produce the absurd result that an unborn child who was badly injured by the tortious acts of another, but who was born alive, could recover while an unborn child, who was more severely injured and died as the result of the tortious acts of another, could recover nothing.

Kwaterski, 34 Wis. 2d at 20.

¶ 23. It would be equally incongruous here to do the reverse — deny recovery to the injured mother because of a stillbirth merely because there is recovery via a wrongful death claim. The wrongful death claim does not and cannot compensate the mother for the pain and anguish that she suffered associated with the stillbirth of her child, resulting from the conceded medical malpractice. The wrongful death claim is intended to compensate the surviving parent for funeral expenses and especially for the loss of society and companionship caused by the child's death. "It does not include . . . the grief and mental suffering caused by the child's death." Wis JI — Civil 1895 (2001).

¶ 24. Kwaterski settled the issue of whether Wisconsin would follow the nascent national trend of allowing a wrongful death claim for a stillborn infant. It provides no guidance as to whether the mother is entitled to recover for her emotional distress as a result of medical malpractice that caused the stillbirth. The circuit court erred in relying on Kwaterski to dismiss Pierce's emotional distress claim related to the stillborn child, and the court of appeals erred in applying Bowen and Finnegan.

III

¶ 25. The circuit court's reliance on Kwaterski to segregate Bonnie Pierce's "own injuries" from those "arising from the injuries and stillbirth of her daughter . . ." ( see circuit court's August 20, 2001 Order), led this court to ask the parties to brief and argue, in addition to the appropriateness of that court's reliance on Kwaterski, the appropriateness of compartmentalizing the suffering, including emotional distress, here.

¶ 26. We are satisfied that, as we reiterated recently in Mullen v. Walczak, 2003 WI 75, 262 Wis. 2d 708, 664 N.W.2d 76, in discussing Redepenning v. Dore, 56 Wis. 2d 129, 143, 201 N.W.2d 580 (1972), it may be impossible to segregate injuries for emotional distress that stem from different sources:

In Redepenning, a mother sought recovery for injuries she sustained in an automobile accident. Her daughter died in the accident, and the mother's claims included one for emotional distress. In upholding a jury's damage award, we determined that the mother's emotional distress was caused both by her own physical injuries as well as witnessing her daughter's death. Ultimately, we concluded that it was impossible to adequately separate the two.

Mullen, 262 Wis. 2d 708, ¶ 23 (emphasis in original) (citation omitted).

¶ 27. Similarly, we cannot separate the damages Pierce suffered into what could be described as "her own" from those she suffered in experiencing the stillbirth of her daughter. She experienced labor, the death of an infant inside of her, and the vacuum extraction of her dead child. To segregate her emotional injuries would be an even more Herculean task than in Redepenning. Pierce was not a witness, but rather a participant as a patient. The inextricable nature of Pierce's position as participant/patient relates to the source of her emotional injuries, so that it is indeed impossible for them to be compartmentalized. Accordingly, we conclude that the circuit court erred in separating Pierce's negligent infliction of emotional distress claim, and dismissing that part of her claim "arising from the injuries and stillbirth of her daughter . . ." while allowing Pierce to proceed on "her claim for damages for emotional distress due to her own injuries."

¶ 28. The fact that the sources of Pierce's emotional injuries cannot be segregated does not mean that we have here a single claim of medical malpractice subject to the single cap for noneconomic damages we discussed last term in Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866. In Maurin, there was a single victim of medical malpractice, the child. Id., ¶¶ 9-13. Here, in contrast, there are two patients and two victims, Pierce and her stillborn daughter, Brianna. To apply a single cap here would effectively excuse the medical malpractice inflicted on one of the patient/participant/victims.

IV

¶ 29. Finally, we asked the parties to brief and argue whether the stipulation they entered into concerning dismissal of claims resulted in Pierce's waiver of her claim for negligent infliction of emotional distress. We find that there is no such waiver.

¶ 30. The parties entered into a stipulation which provided that all causes of action set forth in the plaintiff's amended complaint may be dismissed "with the exception of the cause of action which was dismissed by the court by order dated August 20, 2001 . . . with prejudice and without costs to any party based upon the Stipulation attached hereto as Exhibit A." This resulted in a dismissal order of the circuit court, dated October 3, 2001, which excepted the claims or "causes of action that were dismissed by the court pursuant to the court's order of August 20, 2001. . . ." Exhibit A is the stipulation agreeing to liability and settling the wrongful death claim involving loss of society and companionship and funeral expenses and gravesite marker.

¶ 31. Stipulations are contractual in nature. Duhame v. Duhame, 154 Wis. 2d 258, 264, 453 N.W.2d 149 (Ct.App. 1989). We have held that interpretation of a stipulation must, above all, give effect to the intention of the parties. D'Angelo v. Cornell Paperboard Prods. Co., 33 Wis. 2d 218, 227, 147 N.W.2d 321 (1967). In Milwaukee Suburban Transport Corp. v. Milwaukee County, 82 Wis. 2d 420, 263 N.W.2d 503 (1978), this court held:

Stipulations should be construed consistent with the apparent intention of the parties, the spirit of justice, and the furtherance of fair trials upon the merits, and should not be construed technically so as to defeat the purposes for which they were made. In seeking the intent of the parties, the language of the stipulation should not be construed so as to effect the waiver of a right not plainly intended to be relinquished.

Id. at 442 (citations omitted).

¶ 32. The modifying language that the dismissal is "based upon the Stipulation attached hereto as Exhibit A" strongly suggests that the dismissal of claims was based upon the settling of the wrongful death claim, and that the parties intended the dismissal of only that claim. While the parties' intent of what, if anything, was to be dismissed, in addition to the wrongful death claim, and what causes of action were to be preserved, is not entirely clear from the face of the stipulation, it becomes much clearer when the procedural circumstances are reviewed.

¶ 33. As we concluded above, the circuit court erred in compartmentalizing Pierce's negligent infliction of emotional distress claim and separating it into two claims, one for "her . . . own injuries," and another "arising from the injuries and stillbirth" of Brianna. Pierce did not agree that the circuit court correctly characterized her personal injury claim that encompassed her emotional distress claim, and appealed that decision to the court of appeals. Her appeal of the circuit court decision and order leads us to conclude that she did not intend to stipulate to dismiss the entire claim that was the basis of that appeal — her claim which involved the negligent infliction of emotional distress. We are satisfied that Pierce did not, by entering into the stipulation for dismissal, waive her emotional distress claim, or any portion thereof. That stipulation clearly was intended to preserve the claim dismissed by the circuit court order of August 20, 2001.

V

¶ 34. For the reasons set forth, Bonnie Pierce may pursue her entire claim for the negligent infliction of emotional distress, including that portion arising from the injuries and stillbirth of her daughter, Brianna. 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.

By the Court. — The decision of the court of appeals is reversed, and the cause remanded.

¶ 35. LOUIS B. BUTLER, JR., J., did not participate.