Hawley mother loses appeal

By Janell Cole, The Forum
Published Saturday, September 04, 2004

BISMARCK -- The mother who unsuccessfully sued MeritCare Hospital and one of its doctors over her infant son's circumcision won't get a new trial, the North Dakota Supreme Court said Friday.

Anita Flatt of Hawley, Minn., also will have to pay more than $58,000 in costs the doctor and hospital incurred defending themselves, the court ruled.

The justices rejected Flatt's argument that she received inadequate information before consenting to her son's circumcision shortly after his birth in 1997. If she had had more information, she would not have consented, she said.

MeritCare said in a prepared statement Friday that it had always believed the lawsuit was without merit and that there were no grounds for a new trial.

Flatt and her attorney, Zenas Baer of Hawley, could not be reached for comment Friday.

Flatt and her late husband, James, filed the lawsuit in 1999 on behalf of their son against Dr. Sunita Kantak, MeritCare Medical Center and the state of North Dakota. They named the state as a defendant because they said a 1995 state law that protects girls from genital mutilation but does not apply to circumcision of boys was discriminatory.

The case has been watched by anti-circumcision activists around the country and internationally.

MeritCare and the state were dismissed from the suit before trial. The family's claim against the doctor was tried before a Cass County jury last year.

Jurors agreed with defense attorneys' arguments that Flatt had been told of the possible complications and that there is no need for doctors to outline every possible "insignificant" risk.

The jury found Kantak not negligent.

Flatt and Baer alleged afterward that there were so many errors committed by District Judge Cynthia Rothe-Seeger that they deserved a new trial. They said much of their witnesses' testimony was improperly kept out of the trial. Rothe-Seeger ruled against a new trial and Flatt appealed to the Supreme Court.

Flatt's issues were given some credence by Supreme Court Justice Dale Sandstrom, who wrote a special concurrence with the high court's decision.

He said he is "concerned that the cumulative effect of the trial court's decision limiting the plaintiffs' evidence may have denied them a fair trial," but that those concerns didn't rise to a level that warranted a new trial.

During Baer's arguments at the Supreme Court in May, Sandstrom questioned a lower court ruling that said the Flatt boy did not have standing to challenge the state female genital mutilation law as discriminatory.

"If this plaintiff doesn't have standing, who does?" he asked. And he wondered how a law written to specifically protect girls wasn't as suspect as a law written to protect white children but not black children or American Indian children.

Readers can reach Forum reporter Janell Cole at (701) 224-0830