Flatt v. Kantak Page 2
On these pages the following court
documents above have been reproduced for those whose browsers have
difficulty capturing the pdf files below:
Defendant's Brief In Support Of Motion To
Dismiss and Exclude Any Evidence Of Claims By Anita Flatt In Their
Individual Capacities To Amend The Caption Flatt v. Kantak present
Plaintiffs' Memorandum In
Opposition To Defendants' Motion For Summary Judgment And Motion In
Limine To Exclude Testimony Of Plaintiffs' Witnesses [denial upheld
so case goes to trial] Flatt v. Kantak page 2
Memorandum to Defendants' Motion To Exclude Videotapes, Surgical
Instruments, Minutes Of Meetings, And Other Non-Informed Consent Related
Exhibits Flatt v. Kantak page 2
Order on Motions in
Limine, pdf file. Judge Cynthia Rothe-Seeger denies use of videos
and surgical instruments.
Deposition of Craig Shoemaker, Flatt v. Kantak,
Deposition of George Kaplan, Flatt v. Kantak,
The case of
Josiah Flatt versus Sunita A. Kantak, M.D. and MeritCare focuses
on the what physicians must tell parents to avoid liability for what
would otherwise be battery. Originally the State of North Dakota was
also a named defendant in this case because of its failure to protect
Josiah Flatt (as it has all females born in the state) from genital
mutilation in a law passed
in 1995 before Josiah was born. However, Judge Cynthia Rothe-Seeger
dismissed the State of North Dakota from the lawsuit, a decision that
will likely be appealed after Flatt v. Kantak and Meritcare is heard.
Fishbeck v. State of North Dakota lawsuit
brought in 1996 alleged
that genital integrity laws that exclude males are unconstitutional and
must be extended to cover males or be thrown out. Judge Conmy chose not
to let the case have a hearing on the technical ground of lack of
standing. Such a
ruling may have made sense regarding some of the plaintiffs, but his
reasoning was hard to follow when it came to the Fishbeck child
himself who was circumcised.
The larger issue that looms over these
circumcision lawsuits is whether anyone has
the right to ask to have amputated, or to amputate, any normal, healthy body
part from anyone who has not given consent. The physician's responsibility
is clearly to his patient, and in the case of infant circumcision (done
for no apparent medical reason, as nearly all are), the patient is not the parent but the child
whose wishes and freedom of choice must be
the first consideration.
The day is coming, if not here (see
N.Y. Stowell Case), when the rights of children to
decide for themselves whether to have
normal body parts amputated,
will be recognized and respected. The words are already written: See the
American Academy of Pediatrics
position statement on informed consent and physician responsibility.
Until then, so long as parents are assumed to speak for the child, they
must have complete information on what foreskin amputation involves
obviously is a serious operation with life-long consequences.
The burden of proof that the operation
falls below the level of legal concern,
minimus, is on the cutters. Where is the research to say it is
benign? And even what IS known (or what every cutter SHOULD know by now)
is seldom conveyed to parents. This responsibility will no longer be
shirked if Anita Flatt and her attorney
Zenas Baer and
his firm have their way.
Here are many of the
original Flatt-v.-Kantak-and-Meritcare-lawsuit documents on attorney
Zenas Baer's website in Acrobat PDF format.
The following links are to individual documents found there:
Original Complaint not yet posted.
Affidavit of Sunita A. Kantak, M.D.
Notice And Motions To Dismiss and Motions In Limine To Exclude Evidence
Defendant's Brief In Support Of Motion To Dismiss and Exclude Any
Evidence Of Claims By Anita Flatt In Their Individual Capacities To
Amend The Caption
Defendants' Brief In Support Of Motion To Dismiss Meritcare Medical
Defendant's Brief In Support Of Motion To Exclude Evidence Unrelated To
Defendant's Brief In support Of Motion In Limine To Exclude Evidence Of
Videotapes Of Circumcisions
Questionnaire To Prospective Jurors
Plaintiff's Memorandum In Support Of Motion In Limine Seeking Individual
Plaintiffs' Memorandum In Opposition To Defendants' Motion For Summary
Judgment And Motion In Limine To Exclude Testimony Of Plaintiffs'
Memorandum In Support Of Introducing Demonstrative Videotape Evidence
Plaintiff's Reply Memorandum to Defendants' Motion To Exclude
Videotapes, Surgical Instruments, Minutes Of Meetings, And Other
Non-Informed Consent Related Exhibits
Defendant's Brief In Support Of
Motion To Dismiss
and Exclude Any Evidence Of Claims By Anita Flatt
In Their Individual Capacities To Amend The Caption
STATE OF NORTH
DAKOTA IN DISTRICT COURT
COUNTY OF CASS EAST CENTRAL JUDICIAL
Josiah Flatt by and
through his Natural
Guardians Anita Flatt and James Flatt, Civil No.
Sunita A. Kantak, M.D. and MeritCare Medical Center
Defendants Sunita A. Kantak, M.D. (“Dr. Kantak”) and MeritCare Medical
Center (“MeritCare”) submit this brief in support of their motion for
summary judgment of dismissal.
This is an action
arising out of the circumcision of Josiah Flatt. Dr. Kantak
circumcised Josiah with his mother’s permission when he was a newborn
at MeritCare. The only claims remaining in this lawsuit are based on
informed consent for the procedure.[1
Anita Flatt disputes the
information she was provided by Dr. Kantak before the circumcision.
Indeed, there are many disputed facts in this case, but none are
material to this motion or preclude summary judgment. Summary judgment
should be granted in this case because the Plaintiffs’ advocated
position that parents should not be permitted to consent to the
circumcision of infant males absent a medical necessity or abnormality
is not the law in North Dakota. Furthermore, the Plaintiffs
have failed to produce testimony from qualified experts as required to
put an informed consent claim before a jury. Since the claim against
Dr. Kantak fails, any claim against MeritCare based on respondeat
superior likewise fails. Therefore, the Plaintiffs’ claims should be
dismissed in their entirety at this juncture. There is no need for a
I. STATEMENT OF
Josiah Flatt was born at
3:41 a.m., on March 6, 1997, at MeritCare. Dr. Kantak was Josiah’s
pediatrician during his stay in the hospital. Dr. Kantak spoke with
Anita Flatt about circumcision on March 6, 1997. Defendants Sunita A.
Kantak, M.D. and Meritcare Medical Center’s Answer to Interrogatory
(“ATI”) No. 27, attached and marked as Exhibit 1. The medical record
documented that: “RISKS OF LOCAL ANESTHESIA AND CIRCUMCISION
DISCUSSED. PROCEDURE DESCRIBED. PARENT EXPRESSES UNDERSTANDING.”
See Medical Record included with Defendants Response to
Plaintiffs’ Request for Production of Documents (“RPD”) No. 1,
attached and marked as Exhibit 2. Dr. Kantak signed and dated this
paragraph on March 6, 1997. Id.
The medical record also
contains a consent form for the circumcision signed by Anita Flatt on
March 6, 1997, at 7:20 p.m., stating: “The doctor... has explained the
nature and purpose of the surgery or procedure, other methods of
treatment, risks involved and the possibility of complications: I
understand these risks and options available to me. I understand there
is no guarantee or assurance as to the results that may be obtained.”
See Consent signed by Anita Flatt included with RPD No. 1,
attached and mark as Exhibit 3; see also Excerpt from
Deposition of Anita Flatt (“Flatt Dep.”), at 40-44 attached and marked
as Exhibit 4. Anita Flatt signed as the person authorized to consent
for the minor. Ex. 3. She understood that Josiah would be circumcised
after she signed the consent form. Flatt Dep. at 46. She and her
husband had discussed circumcision and agreed that Josiah should be
circumcised since his father was circumcised. Flatt Dep. at 44, 48.
Dr. Kantak circumcised Josiah on March 7, 1997, after applying a local
anesthetic. See ATI No. 71, attached and marked as Exhibit 1.
Dr. Kantak has testified
by deposition and in her interrogatory responses what she discussed
with Anita Flatt. Flatt disputes what Dr. Kantak discussed with her.
This dispute, however, is not material to this motion and does not
preclude summary judgment.
Under Count I,
Plaintiffs claim that Dr. Kantak failed to obtain informed consent
before performing the circumcision and that Josiah’s parents “were not
capable of authorizing a procedure which amputated otherwise healthy
genital tissue from their minor son...
.“ See Complaint at ¶
29. Plaintiffs assert that “[ellective circumcision procedures should
be performed only when the individual affected can give informed
Complaint at ¶ 25. Plaintiffs also assert that Dr. Kantak did not
advise them of any of the complications of circumcision, including
bleeding, infection, scalded skin syndrome, necrotizing fascitis,
sepsis or meningitis, or that surgical problems could result in
urethra fistula, amputation of a portion of the glans penis, or penile
necrosis. See Complaint at ¶ ii. Plaintiffs allege that Dr.
Kantak did not describe the functions or benefits of the foreskin,
including that the foreskin “contributes significantly to the sexual
response of the male.” Id. at ¶¶ 12, 21. Plaintiffs claim that
Josiah suffered severe and permanent injuries as a result of Dr.
Kantak’s alleged failure to obtain informed consent. Id. at ¶
30. The Complaint asserts that if they would have been informed of the
risks, benefits, and pain allegedly associated with the circumcision,
they would not have consented. Id. at ¶ 13. But more
fundamentally, they urge that they had no legal ability to consent
— rather, only the consenting
male should be permitted to consent to circumcision after reaching
adulthood. Under Count II, Plaintiffs claim that MeritCare is liable
under the doctrine of respondeat superior for Dr. Kantak’s acts and
omissions in performing a procedure without informed consent.
To support their
informed consent claim, the Plaintiffs disclosed three physicians as
expert witnesses: Dr. Christopher Cold, Dr. Robert Van Howe, and Dr.
Eileen Wayne. None of these physicians perform circumcisions. Dr. Cold
is a pathologist and Dr. Wayne is an ophthalmologist, for which
circumcisions are not a part of their practice. Dr. Van Howe, although
a pediatrician, does not perform circumcisions and never has. All of
these physicians were deposed by counsel for Dr. Kantak and MeritCare.
from deposition of Dr.
Cold, attached and marked as Exhibit 5 (“Dr. Cold Dep.”); Excerpts
from deposition of Dr. Van Howe, attached and marked as Exhibit 6
(“Dr. Van Howe Dep.”); Excerpts from deposition of Dr. Wayne, attached
and marked as Exhibit 7 (“Dr. Wayne Dep.”).
Dr. Christopher Cold
Dr. Cold is a board
certified pathologist. Dr. Cold Dep. at 6. He is not certified in any
other specialty. Id. He has limited his practice to pathology
since completing his training in 1990. Id. He did not have any
residency training or fellowship or other training in any specialty
other than pathology. Id at 31. He does not perform
circumcisions. Id. at 30. He does not perform genital exams on
live patients or examine living male newborns. Id. at 30-31.
Although he performed less than 20 circumcisions in his career as a
medical student or as an intern with the Navy, he has not performed
one since 1985 and does not believe he is qualified now to perform
one. Id at 32 34. Performing circumcisions is outside
the scope of his practice as a pathologist. Id. at 65.
He does not hold himself out as an expert in how to perform
circumcisions. Id. at 33, 66. He does not have privileges to
perform circumcisions and would not even try to get privileges for the
procedure. Id. at 33. Nor is he involved in obtaining informed
consent from parents for circumcision. Id. at 34.
As a pathologist, his
experience and exposure to foreskin is limited to its anatomy and cell
structure. Id. at 30. His special interest is the cell
structure of the foreskin and other genital structures, and the
changes that occur on the cellular level with
Dr. Cold commented that
he did not see that bleeding, infections, or other complications were
discussed with the parents in this case. Id. at 66. He could
not say that any bleeding or infection actually occurred. Id.
at 105. He acknowledged that he does not make determinations regarding
anesthesia. Id. at 88. Nor is he an expert on the subject of
pain from circumcision. Id. at 90. He cannot predict whether
Josiah will have a satisfactory sex life and agreed that the effect of
circumcision on sexual pleasure has not been well studied. Id.
But regardless of
what was discussed with the Flatts and no matter what was documented
or how the procedure was performed, his opinion is that circumcision
was unnecessary and improper in this case because Josiah had a normal
penis at birth and did not give his own consent to the circumcision.
Id. at 58, 86, 89. Even if anesthesia is used, he does not
believe it justifies a circumcision. Id. at 88. Dr. Cold is
opposed to routine neonatal male circumcision and does not believe
parents can consent to the removal of normal foreskin on a
newborn boy unless there is a medical abnormality or indication. Id.
at 25, 56, 58. He concedes, however, that a large number are
done in this country, including by his own colleagues. Id. at 6
Dr. Robert Van Howe
Dr. Van Howe is a board
certified pediatrician. Dr. Van Howe Dep. at 4. Dr. Van Howe believes
physicians are poorly educated on the anatomy and function of the
foreskin and are not as knowledgeable as they should be about the
function of the penis
and foreskin. Id.
at 28-29. He is not trained to perform a circumcision. Id. at
20. He has never performed a circumcision. Id. at 20. He has
never had privileges to perform a circumcision. Id. at 20. It
is not within his expertise to talk about surgical technique for a
circumcision. Id. at 29. Dr. Van Howe does not have training in
the use of anesthetic for circumcision. Id. at 32. It follows
that Dr. Van Howe has never obtained consent from a parent to perform
Dr. Van Howe has opined
that Dr. Kantak fell below the standard of care in obtaining adequate
informed consent for Josiah’s circumcision. Id. at 26-27. In
his opinion, it is improper for a physician to perform a circumcision
on a newborn male who has normal, healthy, undiseased foreskin until
the male is old enough to give his own consent. Id. at 27-28,
38. Even if anesthesia is effective, he does not believe a
circumcision can be performed until the patient gives his own consent.
Id. at 30. Parents, in his opinion, should not be allowed to
consent to circumcision no matter how well they are informed. Id.
at 37-3 8, 60. He does not believe parents can give valid, legal
consent to circumcision of a newborn. Id. at 60. If a physician
performs a circumcision based upon parental consent, he believes the
physician is acting illegally. Id. at 61.
opinions, Dr. Van Howe concedes that neonatal circumcisions are
commonly performed around the country with or without anesthesia.
Id. at 31, 34, 36. He acknowledges that circumcision is an
accepted procedure included in the practice of a large number of
physicians and that it is a recognized practice around the country to
obtain consent from a parent before doing a circumcision. Id at
36 39, 40. Dr. Van
Howe agrees that
circumcision is a matter of considerable debate in this country and
that there are differences of opinion among physicians in good
standing on the topic. Id. at 77.
Dr. Van Howe’s own colleagues perform circumcisions. Id.
Dr. Eileen Wayne
Dr. Wayne is a board
certified ophthalmologist and completed her residence in
ophthalmology, which involves the conditions and diseases of the eye.
Dr. Wayne Dep. at 3-4. She has no formal training in any specialty
other than ophthalmology and she limits her practice to ophthalmology.
Id. at 4, 12. Dr. Wayne has never performed a circumcision. 8.
She learned about circumcisions during medical school and watched
about 10 or 15, but she acknowledges that circumcisions are
outside of her specialty and that she is not skilled or trained to
perform one. Id. at 9-10, 12. She has never obtained informed
consent from a patient or guardian for a circumcision. Id. at
26. She does not hold herself out as an expert in circumcision. Id.
Dr. Wayne holds herself
out as an expert on informed consent for medical procedures, but not
on the risks and benefits of medical procedures outside of
ophthalmology. Id. at 26. She would not be able to write a
procedure-specific consent form for procedures outside of the
ophthalmology specialty. Id. at 26. Notwithstanding, she has
developed a consent form for medically-necessary circumcision which,
to her knowledge, has never been used by any physician or patient.
Id. at 35, 62.
Dr. Wayne believes it is
impossible to get informed consent from a parent. for an infant
circumcision where there is no disease or abnormality regardless of
the amount of
information that is
provided to the parent. Id. at 37, 39, 64-66. In her opinion,
only the patient can give consent for the procedure after he has
reached the age of majority. Id. at
56. She does not
believe circumcision should have been offered to Josiah’s parents or
that they should have been able to consent at all. Id. at
62-64. In her view, no amount of information that Dr. Kantak could
have provided to Anita Flatt would have met the requirement for
adequate informed consent because, in her view, parents cannot give
consent. Id. at 64-66. Dr. Wayne believes that an infant
circumcision is “fraud and abuse” and that criminal charges should be
brought against doctors who perform them. Id. at 38, 74. Dr.
Wayne recognizes that circumcisions are performed with parental
consent around the country, including at the facilities where she has
privileges. Id. at 63.
Under North Dakota law,
the informed consent claim must be dismissed because parents are
authorized to consent to circumcision of their infant sons whether
or not there is a medical indication or abnormality. Furthermore, the
Plaintiffs have failed to provide qualified expert testimony to
support their informed consent claim. Since the informed consent claim
fails against Dr. Kantak, it likewise fails against her employer.
II. LAW AND ARGUMENT
Summary judgment should
be granted if there are no genuine issues of material fact and if the
moving party is entitled to judgment as a matter of law. Fries v.
Fries, 470 N.W.2d 232, 235 (N.D. 1991); N.D.R. Civ. P. 56(c).
Where the salient facts are undisputed and only a question of law
is involved, summary judgment allows a case to be promptly disposed of
on its merits without a trial. Thedin v. U.S. Fidelity & Guar. Ins.
Co., 518 N.W.2d 703, 705 (N.D. 1994); Hoff v. Minnesota
Mut. Fire & Cas., 398 N.W.2d 123, 125 (N.D. 1986). Even if a
factual dispute exists, summary judgment is appropriate if resolution
of the factual dispute will not change the result under the law.
Kummer v. City of Fargo, 516 N.W.2d 294, 296 (N.D. 1994);
Mattheis v. City of Hazen, 421 N.W.2d 476, 478
(N.D. 1988). Where the facts are such that reasonable minds could not
differ, the court may decide, as a matter of law. Morrison v. Grand
Forks Housing Authority, 436, N.W.2d 221, 224 (N.D. 1989).
When a motion for
summary judgment is properly made and supported, the party opposing
the motion must raise a genuine issue of material fact precluding
summary judgment by setting forth specific facts that demonstrate a
genuine issue for trial. Binstock v. Tschider, 374
N.W.2d 81, 83 (N.D. 1985); N.D.R. Civ. P. 56(e). This
requirement places the burden on the opposing party to present
competent admissible evidence, by affidavit or otherwise, sufficient
to raise a material factual issue. Production Credit Ass’n
of Fargo v. Foss, 391 N.W.2d 622, 625 (N.D. 1986).
The opposing party cannot simply rely on the pleadings. Peterson
v. Zerr, 477 N.W.2d 230, 234 (N.D. 1991). Conclusory
allegations are insufficient to preclude summary judgment. Kummer,
516 N.W.2d at 297; Peterson, 477 N.W.2d at 234; State Bank
of Kenmare v. Lindberg, 471 N.W.2d 470, 476 (N.D.
1991). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Reagan v.
Hi-Speed Checkweigher Company. Inc., 30 F.3d 947, 949 (8th”
Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 106
S.Ct. 2505, 2510-11 (1986)).
Summary judgment is
particularly proper against a party who fails to make a showing
sufficient to establish the existence of an element essential to the
party’s case and on which that party will bear the burden of proof at
trial. Matter of Estate of Stanton, 472
N.W.2d 741, 746
A. Under North Dakota Law. A Parent Can Consent To
Circumcision Of An Infant Son Whether Or Not There Is A Medical
Indication Or Abnormality.
A claim for negligence based on lack of informed consent
relates to a duty of a doctor to disclose
pertinent information to a patient. Jaskoviak v. Gruver,
2002 ND 1, ¶ 13. A plaintiff in an informed consent case must
establish breach of a physician’s duty of disclosure, causation, and
injury. Jaskoviak v. Gruver, 2002 ND 1, ¶ 13 (citing
authorities requiring plaintiff to show the existence of a material
risk which the physician failed to disclose and a causal connection
between the disclosure failure and the actual risk sustained);
Winkier v. Herr, 277 N.W.2d 579 (N.D. 1979). It is
recognized that a physician’s obligation to the patient includes “the
duty of reasonable disclosure of the available choices with respect to
the proposed therapy and of the material and known risks potentially
involved in each.” Winkier, 277 N.W.2d at 587.
Here, the Plaintiffs
claim that Dr. Kantak did not obtain informed consent for the
procedure because she did not get consent from Josiah, the
infant boy. The Plaintiffs urge that a parent should not be permitted
to consent to circumcision under any circumstances, regardless of the
information that is provided to a parent, when the infant’s penis has
normal, healthy foreskin. This platform is endorsed by all three of
and is the basis for their opinions in this case. All of the
Plaintiffs’ experts opine that Dr. Kantak could not have obtained
informed consent from Anita Flatt regardless of the information
provided to her because only the patient can consent to circumcision.
Yet, this is not the law in North Dakota. The entire premise for the
Plaintiffs’ informed consent claim is a mistaken view of fundamental
North Dakota law.
Under North Dakota law,
it is well established that a parent has authority to consent to
health care for a minor child. See N.D. Cent. Code §
23-12-13(1)(e); see also Troxel v. Granville, 530 U.S. 57
(2000) (recognizing long line of Supreme Court precedent upholding a
parent’s fundamental liberty interest to make decisions regarding the
care, custody, and nurture of a child); Parham v. J.R.,
442 U.S. 584 (1979) (recognizing that parents can and must make
decisions regarding medical care and treatment for their children).
This is the general rule with limited exceptions set by the
Legislature. Parental consent cannot be given for “sterilization,
abortion, or psychosurgery or for admission to a state mental health
facility for a period of more than forty-five days without a mental
health proceeding or other court order.” Other statutory provisions
allow for circumstances when a minor can consent to his or her
health care without the authority or consent of the parent. See.
e.g., N.D. Cent. Code § 14-10-17 (“Any person of the age of
fourteen years or older may contract for and receive examination,
care, or treatment for sexually transmitted disease, alcoholism, or
drug abuse without permission, authority, or consent of a parent or
guardian.”). The Legislature did not exclude parental consent for
Statutes are given their
plain, ordinary, and commonly understood meaning. Bigwood v.
City of Wahpeton, 565 N.W.2d 498, 502 (N .D. 1997).
Furthermore, the law is what the Legislature says, not what is unsaid.
See Little v. Tracy, 497 N.W.2d 700, 705 (N.D. 1993). A
principle of statutory interpretation recognizes that the mention of
one thing implies the exclusion of another:
must be presumed that the Legislature intended all that it said, and
that it said all that it intended to say. The Legislature must be
presumed to have meant what it has plainly expressed. It must be
presumed, also, that it made no mistake in expressing its purpose and
intent. Where the language of a statute is plain and unambiguous, the
“court cannot indulge in speculation as to the probable or possible
qualifications which might have been in the mind of the legislature,
but the statute must be given effect according to its plain and
obvious meaning, and cannot be extended beyond it.”
N.W.2d at 705 (quoting City of Dickinson v. Thress,
290 N.W. 653, 657 (N.D. 1940)).
Here, the plain and
unambiguous language of the consent statute allows for and does not
exclude parental consent to circumcision. In short, the Legislature
did not exclude parental authority to consent to circumcision, and no
other law in North Dakota prohibits parental consent to circumcision.
Health care providers can and do look to the parent to provide consent
for their minor child, including consent for circumcisions. This is
the authorized practice in North Dakota.
This lawsuit is an
attempt to abolish circumcision in North Dakota of newborn males with
normal, healthy foreskin. Plaintiffs want to change public policy so
that only a competent male once he reaches adulthood, and not his
parent, should be able to
consent to circumcision.
The Plaintiffs’ efforts are misplaced. The North Dakota Supreme Court
has consistently distinguished its role from that of the Legislature:
function is to interpret the statute.... ‘The justice, wisdom,
necessity, utility and expediency of legislation are questions for
legislative, and not for judicial determination.”’ Stokka v.
Cass Coun~ Elec. Coop.. Inc., 373 N.W.2d 911, 914
(N.D.1985) (quoting Syllabus ¶ 11, Asbury Hospital v. Cass County,
72 N.D. 359, 7 N.W.2d 438 (1943)). The legislature is much better
suited than courts to identify or set the public policy in this state.
Haffy. Hettich, 1999 ND 94, ¶ 22, 593 N.W.2d 383; Martin
v. Allianz Life Ins. Co., 1998 ND 8, ¶ 20, 573 N.W.2d
823. “[T]he legislature ‘can do studies, gather evidence, hold
hearings, and come to a decision’ and ‘broad public policy issues are
best handled by legislatures with their comprehensive machinery for
public input and debate’ (citations and quotations omitted).”
Allianz, 1998 ND 8, ¶ 20, 573 N.W.2d 823.
Fargo-Moorhead Young Men’s Christian Ass’n, 632
N.W.2d 407,418 (N.D. 2001). The Legislature
— not the judiciary
— determines public policy.
The proper venue for Plaintiffs’ quest is the Legislature, not a
courtroom in a so-called malpractice claim against a physician who,
like most of her colleagues, happens to perform infant circumcisions
when parents request them.
In short, the
Plaintiffs’ informed consent claim fails as a matter of law because
parents can consent to circumcision of their sons, and
pediatricians are authorized to act on such consent. The
informed consent claims should be dismissed.
B. The Plaintiffs Have Failed To Produce Relevant and
Oualified Expert Testimony To Support Their Informed Consent Claim.
A claim for negligence
based on lack of informed consent relates to a duty of a doctor to
disclose pertinent information to a patient and requires expert
testimony. Jaskoviak v. Gruver, 2002 ND 1, ¶¶ 13, 19. In
Jaskoviak, the North Dakota Supreme
Court discussed a
physician’s duty of disclosure:
is sometimes said that the physician should disclose the diagnosis,
the general nature of the contemplated procedure, the material risks
involved in the procedure, the probability of success associated with
the procedure, the prognosis if the procedure is not carried out, and
the existence and risks of any alternatives to the procedure.”
ND 1, at ¶ 17 (quoting treatise). Furthermore,
duty to disclose can arise only if the physician knew or should have
known of the risks to be disclosed. Also a physician is not required
to disclose all possible risks and dangers of the proposed procedure
but only those that are significant in terms of their seriousness and
likelihood of occurrence. There is no need to disclose risks of little
consequence, those that are extremely remote, or those that are common
knowledge as inherent in the treatment.”
ND 1, at ¶ 18 (citations omitted) (quoting Winkier, 277 N.W.2d
at 588). “‘The disclosure requirement is in essence a requirement of
conduct prudent under the circumstances.”’ Jaskoviak, 2002 ND 1
at ¶ 18 (quoting treatise).
At the very least,
“expert medical testimony is generally necessary to identify the risks
of treatment, their gravity, likelihood of occurrence, and reasonable
alternatives.” Winkier, 277 N.W.2d at 588. “The necessity for
expert testimony is particularly so when such information is outside
the common knowledge of laymen.” Id. Without expert testimony,
the informed consent claim must be dismissed.
Here, the Plaintiffs
have failed to proffer qualified experts whose testimony would be
helpful to the jury. It is the district court’s responsibility to make
certain expert testimony is reliable as well as relevant. Myer
v. Rvgg, 630 N.W.2d 62, 65 (N.D. 2001). Rule 702 of the North
Dakota Rules of Evidence provides:
scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training or education, may testify thereto in the form of
an opinion or otherwise.
N.D.R. Evid. 702.
It is well established
that whether testimony will assist the trier of fact and whether a
witness is qualified as an expert are determinations largely within
the sound discretion of the trial court. Mver, 630 N.W.2d at
65; Kluck v. Kluck, 561 N.W.2d 263, 266 (N.D. 1997).
These decisions will not be reversed absent an abuse of discretion.
Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D. 1990).
Here, testimony from
Dr. Cold, Dr. Van Howe, and Dr. Wayne will not assist the trier of
fact. The Plaintiffs’ witnesses opine that Dr. Kantak could not have
obtained informed consent for Josiah’s circumcision no matter what
information she provided to Josiah’s mother. See supra. As
stated, this is not the law. Moreover, the Court
— not an expert
— instructs the jury on the
law. The Plaintiffs’ expert testimony is simply not relevant to this
case and would not aid a jury in deciding the informed consent issues.
Furthermore, none of
the experts are qualified to offer an opinion on the risks, benefits,
or alternatives of circumcision, or the standard for obtaining
informed consent for one, or any causal connection between an
undisclosed risk and an actual risk sustained in an injury. To qualify
as an expert, the witness must have actual knowledge, skill, training,
or education. See N.D.R. Evid. 702. A witness is not required
to be licensed or certified in a particular specialty to offer expert
testimony, but the witness must have
that count and some degree of expertise in the field. Kluck,
561 N.W.2d at 266; Oberlander, 460 N.W.2d at 402; In
re Aune, 478 N.W.2d 561, 564 (N.D. 1991); Collum v.
Pierson, 411 N.W.2d 92, 95 (N.D. 1987). A physician can testify
about another field of medicine within his experience even though it
is not his specialty. Blessum v. Shelver, 567 N.W.2d 844, (N.D.
1997). Experience is particularly important in an informed consent
case because the expert needs to testify about what the physician knew
or should have known of the risks to be disclosed and their
significance in terms of their seriousness and likelihood of
occurrence. See Winkier, 277 N.W.2d at 588); see also
Cornfeldt v. Tongen, 262 N.W.2d 684, 698-99 (Minn. 1977)
(recognizing that “occupational experience” is needed in a medical
negligence case); Wall v. Faiiwiew Hosp., 584 N.W.2d 395, 405
(Minn. 1998); Williams v. Wadsworth, 503 N.W.2d 120, 124 (Minn.
The Minnesota Supreme
Court’s decision in Williams v. Wadsworth, 503 N.W.2d 120, 124
(Minn. 1993), is persuasive. In Williams, the Court affirmed
the trial court’s decision that the physician was incompetent to
render expert medical testimony on informed consent issues since it
was unlikely that the physician had ever obtained informed consent for
the procedure at issue in the case. Similarly, in this case, Dr. Van
Howe and Dr. Wayne have never obtained informed consent from a parent
for a circumcision having never performed circumcisions. Although Dr.
Cold performed a few circumcisions in medical school, he does not now
considered himself qualified to do so and is not involved in obtaining
informed consent for circumcisions.
The decision of
Cornfeldt v. Tongen, 262 N.W.2d 684 (Minn. 1977) also
provides guidance. In Cornfeldt, the plaintiff proffered
testimony of a pathologist to show an anesthesiologist deviated from
accepted medical practice. Id. at 694. The trial court excluded
the evidence. The pathologist had little training in anesthesiology
and did not claim any real expertise in knowing when combinations of
anesthetics should or should not be given to patients. Furthermore,
the doctor’s occupational experience with anesthesiology was limited
to discussions with the anesthesiologists at his hospital and meetings
of his pathological society. The trial court’s decision was affirmed
by the Minnesota Supreme Court.
Here, the Plaintiffs’
proffered witnesses have little or no training or practical experience
in performing circumcisions. Dr. Wayne’s specialty involves conditions
and diseases of the eye! She has no formal training in any specialty
other than ophthalmology, and she has never performed a circumcision.
She concedes that circumcisions are outside of her specialty and that
she is not skilled or qualified to perform one. She does not hold
herself out as an expert in circumcision.
pediatrician, Dr. Van Howe is not trained to perform a circumcision
and has never circumcised anyone. The Plaintiffs may argue that Dr.
Van Howe has qualifications based on his research of articles on the
subject of circumcision, even though he does not have any training to
perform circumcisions or experience obtaining consent from parents.
Knowledge of what was the proper professional treatment based on what
a physician has read or has heard from experts in the field is
Chatterton, 160 N.W.2d 662, 668 (Mm. 1968). This “would be no more
persuasive than that of a layman who had read and heard what was the
proper professional practice.” Id.
Dr. Cold is a
pathologist with a special interest in the cell structure of the
foreskin and other genital structures and the changes that occur on
the cellular level with circumcision. There is no dispute in this case
that Dr. Kantak removed normal tissue. There was no abnormality to
anyone’s knowledge. Dr. Cold’s testimony on the cell structure of
normal foreskin is the type of testimony that would perhaps be
presented to a legislative committee of the Legislature in deciding
whether to outlaw circumcision. It has no place in a malpractice
action on the issue of informed consent. In short, Dr. Cold’s
experience and scope of knowledge regarding foreskin tissue are not
helpful to the factual issues in this case. Although he had some
exposure to circumcisions in medical school more than 15 years ago,
circumcisions are outside the scope of his practice and he does not
hold himself out as an expert in how to perform one.
None of these witnesses
can qualify as experts in this informed consent circumcision case.
Since there is no competent expert testimony to support the
Plaintiffs’ informed consent claim, the Plaintiffs have failed to make
a showing sufficient to establish essential elements for their claim
for which they would bear the burden at trial. Summary judgment on
Count I is therefore appropriate.2
C. The Claim Against MeritCare Must Be Dismissed With The
Claim Against Dr. Kantak.
The Plaintiffs’ claim
that MeritCare is liable under the doctrine of respondeat superior for
the acts of Dr. Kantak should be dismissed. Since the Plaintiffs’
informed consent claim fails against Dr. Kantak, the claim against
MeritCare likewise fails because liability under the doctrine of
respondeat superior is derivative or vicarious to that of the
employee. See Nelson v. Gillette, 571 N.W.2d 332, 338
(N.D. 1997).~ Summary judgment is appropriate on Count II.
Based on the foregoing,
Defendants Dr. Kantak and MeritCare request summary judgment in this
case because the premise for the Plaintiffs’ claims is against well
established law in North Dakota since parents are authorized to
consent to circumcision for their sons.3[footnote
3 here?] Furthermore, they have failed
to support their claims with qualified expert testimony.
this case involved claims against the State of North Dakota and
challenges to the constitutionality of the state statute criminalizing
female genital mutilation under equal protection and due process
grounds because the state statute did not prohibit the circumcision of
infant males. Plaintiffs’ counsel’s similar crusade in federal court
to overturn the same state statute had been rejected for lack of
standing. See Fishbeck v. North Dakota, 115 F.3d 580
Cir. 1997). At the outset of the Flatts’ case, the State of
North Dakota moved for dismissal of the constitutional challenges for
lack of standing. Dr. Kantak and MeritCare moved for partial summary
judgment on the constitutional challenges for lack of standing and
lack of state action on their part. In May 2000, the Court granted the
motions and ordered that the federal and state constitutional
challenges under Counts III and IV of the Plaintiffs’ Complaint
Even if this
Court were to find that one or more of the witnesses qualify as an
expert, summary judgment should still be granted because none of the
experts have testified to any risk that actually resulted in an
injury. This is a required element of an informed consent claim
3 [back] The
Plaintiffs make reference to battery and breach of contract in their
complaint. In Winkier v. Herr, 277 N.W.2d 579 (N.D.
1979), the North Dakota Supreme Court recognized that informed consent
claims sound in negligence. To the extent the Plaintiffs are trying
allege a battery or breach of contract claim, they fail as a matter of
Dated this 4th day of March, 2002.
VOGEL, WEIR, HUNKE
Jane C. Voglewede (03309)
Angie E. Lord (05351)
First Avenue North
P.O. Box 1389
Fargo, North Dakota 58107
ATTORNEYS FOR DEFENDANTS