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Flatt v. Kantak 1
and Meritcare Hospital
What Constitutes Informed Consent?
 

 

Recent News   Press Coverage of Flatt v. Kantak   Fishbeck v. State of North Dakota   Relevant Statutes   Meritcare Statement of Patients' Rights

 
   

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 page 1
     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
     Plaintiff's Reply 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, page 3
     Deposition of George Kaplan, Flatt v. Kantak, page 4


      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.
      The 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 which obviously is a serious operation with life-long consequences.
      The burden of proof that the operation falls below the level of legal concern, de 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 Center

Defendant's Brief In Support Of Motion To Exclude Evidence Unrelated To Informed Consent

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 Voir Dire

Plaintiffs' Memorandum In Opposition To Defendants' Motion For Summary Judgment And Motion In Limine To Exclude Testimony Of Plaintiffs' Witnesses

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 DISTRICT

Josiah Flatt by and through his Natural
Guardians Anita Flatt and James Flatt,                                               Civil No. 99-3761
Plaintiffs,

vs. 
                                                                           
Sunita A. Kantak, M.D. and MeritCare Medical Center
Defendants.

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.

I. INTRODUCTION

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 footnoote]

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 trial.

I. STATEMENT OF FACTS

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.

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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

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consent.” See 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. See Excerpts

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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

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circumcision. Id. at 30.

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. at 89.

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 1-62.

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

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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 circumcision.

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.

Notwithstanding his 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

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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. at 61.

        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. at 14.

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

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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.

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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)).

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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 (N.D.1991)

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

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Plaintiffs’ “experts” 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 circumcision.

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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:

It 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.”

Little, 497 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

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consent to circumcision. The Plaintiffs’ efforts are misplaced. The North Dakota Supreme Court has consistently distinguished its role from that of the Legislature:

Our 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.

Rodenburg v. 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

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Court discussed a physician’s duty of disclosure:

“It 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.”

Jaskoviak, 2002 ND 1, at ¶ 17 (quoting treatise). Furthermore,

“A 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.”

Jaskoviak, 2002 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:

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If 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

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actual qualifications 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. 1993).

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.

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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.

Although a 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 insufficient. See

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Swanson v. 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 [footnote]

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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.

III. CONCLUSION

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.

Footnotes_______________
1 [back] Originally, 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 (8th 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 be dismissed.

2 [back] 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 law.

_____________________

Dated this 4th day of March, 2002.

VOGEL, WEIR, HUNKE

& McCORMICK, LTD

                                                                    By:___________________________

                                                                               Jane C. Voglewede (03309)
                                                                              Angie E. Lord (05351)

502 First Avenue North
P.O. Box 1389
Fargo, North Dakota 58107
ATTORNEYS FOR DEFENDANTS
(701) 237-6983

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