Hospital dismissed from circumcision lawsuit

By Jeff Baird
jbaird@forumcomm.com

The Forum -- 02/14/2003

A circumcision lawsuit against Fargo's MeritCare Hospital was dismissed Thursday after a judge ruled the hospital is not responsible for informing patients about the procedure.

A jury, however, will still decide whether Dr. Sunita Kantak properly informed Anita Flatt about the risks and benefits of circumcision.

MeritCare Attorney Angela Lord made the motion to dismiss after the plaintiffs called their last witness Thursday.

Lord argued the plaintiffs failed to prove MeritCare is responsible for obtaining patient informed consent.

East Central District Court Judge Cynthia Rothe-Seeger agreed.

She ruled even though the hospital provides the room, tools and nurses, obtaining informed consent is the legal responsibility of the doctor.

Flatt of Hawley, Minn., sued Kantak and MeritCare Hospital in Cass County District Court, claiming she and her husband, James, weren't told complete and accurate information about removing the foreskin from their son's penis.

Flatt says she never received the booklet MeritCare gives out to parents, and only talked to Kantak briefly about the pain involved before the procedure was performed.

Had Flatt understood the risks of the procedure, she wouldn't have had it done, she said.

"My theory was the nurses, who were employees of the hospital, were agents of Sunita Kantak to obtain consent," Flatt attorney Zenas Baer said after court recessed for the day.

Baer said the ruling does not "mean all that much from a practical standpoint."

The decision, for instance, would not impact the amount of money a jury could award Flatt if Kantak was found liable, Baer said.

MeritCare officials left the trial without commenting on Rothe-Seeger's ruling.

Rothe-Seeger did not grant Lord's motion to dismiss Kantak from the lawsuit.

Lord argued that under North Dakota law, doctors are not required to disclose all possible risks or minor risks to patients.

In addition, she said, the potential risks Baer has named, like amputation of the penis, meningitis and death, didn't occur in this case.

Flatt's son, Lord said, has a normal, functioning penis.

Rothe-Seeger did not explain why she didn't drop Kantak from the lawsuit.

The jury will not be told about Rothe-Seeger's ruling on MeritCare until after closing statements, which are expected today.

Baer spent Thursday morning questioning Kantak and Flatt.

He asked Kantak if her talk to parents on circumcision has changed since December 1999 when Flatt filed the lawsuit.

Nurses and doctors have testified Kantak gives a thorough discussion on circumcisions.

Kantak said her circumcision talk has not significantly changed.

During cross examination, Kantak said she talked to Flatt about circumcision on March 6, 1997, the day before the procedure.

She said there is documentation to prove it. Flatt alleges her first visit with Kantak was on March 7.

Kantak said it's not procedure for doctors to go over every possible risk of circumcision unless specifically asked by the parent.

Kantak also said she doesn't recall there being a complication from circumcision in her 15 years at MeritCare.

Flatt, who was recalled to testify, said Kantak did not talk about risks like asymmetry and skin adhesions, both which her son suffered from.

She said she wouldn't have consented to the procedure had she known about the risks.

Two MeritCare doctors testified Thursday afternoon that asymmetry and adhesions are very common, won't impact function and aren't considered a concern.

The adhesions have already been treated and the asymmetry will most likely be unnoticeable by the time the boy reaches puberty, they said.

The case is expected to be handed over to the jury for deliberation this afternoon.

Readers can reach Forum reporter Jeff Baird at (701) 241-5535