Flatt ex rel. Flatt v. Kantak

• Decision Date: 03 September 2004
• Docket Number: No. 20030285.,20030285.
• Citation: 687 N.W.2d 208,2004 ND 173
• Parties: Josiah FLATT, by and through his Natural Guardians Anita FLATT and James Flatt, Plaintiff and Appellant, v. Sunita A. KANTAK, M.D., MeritCare Hospital, and State of North Dakota, Defendants and Appellees.
• Court: North Dakota Supreme Court

687 N.W.2d 208

2004 ND 173

Josiah FLATT, by and through his Natural Guardians Anita FLATT and James Flatt, Plaintiff and Appellant, v. Sunita A. KANTAK, M.D., MeritCare Hospital, and State of North Dakota, Defendants and Appellees.

No. 20030285.

Supreme Court of North Dakota.

September 3, 2004.

Zenas Baer, Zenas Baer & Associates, Hawley, MN, for plaintiff and appellant.

Angela Elsperger Lord (argued) and Jane C. Voglewede (on brief), Vogel Law Firm, Fargo, for defendant and appellee, Sunita A. Kantak, M.D.

Douglas A. Bahr, Solicitor General, Attorney General's Office, Bismarck, for defendant and appellee State of North Dakota.

VANDE WALLE, Chief Justice.

[¶ 1] Josiah Flatt, by and through his natural guardians Anita and James Flatt, appealed from an order denying his motion for a new trial and from an amended judgment entered upon a jury verdict finding Dr. Sunita Kantak was not negligent in obtaining Anita Flatt's informed consent for the circumcision of Josiah Flatt. We affirm.

I

[¶ 2] James and Anita Flatt are the parents of Josiah Flatt, who was born on March 6, 1997, at Meritcare Hospital in Fargo. On March 7, 1997, Dr. Kantak performed a circumcision on Josiah Flatt. Josiah Flatt's medical records, which were signed by Dr. Kantak and dated March 6, 1997, state, "RISKS OF LOCAL ANESTHESIA AND CIRCUMCISION DISCUSSED. PROCEDURE DESCRIBED. PARENT EXPRESSES UNDERSTANDING." According to Dr. Kantak, her discussion about circumcision with a parent typically includes a statement that circumcision is not medically recommended but is a choice, lidocaine is used for anesthesia with a risk of hemorrhage or seizure, circumcision is a minor surgery but is a surgery with risks such as bleeding, infection, trauma to the penis, and uretal meatus, and a benefit of circumcision includes less risk of urinary tract infection. Dr. Kantak testified it was not her standard practice to discuss with a parent every reported risk of circumcision. According to Meritcare's records, Anita Flatt was given written materials, including a booklet entitled "Infant Care," which discussed circumcision, and a booklet entitled "Should Your Infant Boy Be Circumcised?" Anita Flatt denied receiving any written materials or booklets while she was at the hospital. She recalled speaking with Dr. Kantak before the circumcision, but she denies being told by Dr. Kantak about any risks of circumcision, except for pain. On March 6, 1997, Anita Flatt signed a form documenting her consent for Josiah Flatt's circumcision. The form stated that her doctor had explained the nature and purpose of the surgery, other methods of treatment, risks involved, and the possibility of complications, and that she understood those risks and options.

[¶ 3] According to Anita and James Flatt, they later learned of other risks of circumcision and what the procedure entailed. They claimed Anita Flatt would not have consented to the procedure if there had been adequate disclosure. Josiah Flatt, by and through Anita and James Flatt, sued Dr. Kantak and Meritcare, alleging Dr. Kantak failed to obtain Anita Flatt's informed consent before performing the circumcision. Flatt also sued the State of North Dakota, alleging N.D.C.C. § 12.1-36-01, the female genital mutilation law, violated the equal protection provisions of the federal and state constitutions.

[¶ 4] The trial court dismissed Josiah Flatt's federal and state constitutional challenges, concluding he lacked standing to challenge N.D.C.C. § 12.1-36-01. The court dismissed Flatt's claims against Meritcare before submitting the case to a jury, and the jury returned a verdict finding Dr. Kantak was not negligent in obtaining Anita Flatt's consent for the circumcision. The court denied Flatt's motion for a new trial, and a judgment, with costs and disbursements, was entered dismissing the action.

II

[¶ 5] Flatt argues the trial court erred in preventing his experts, Dr. Christopher Cold and Dr. Robert S. Van Howe, from testifying on the standard of care for obtaining informed consent for an elective medical procedure on an infant. He argues expert testimony is necessary to establish the degree of skill and care required of a physician and whether specified acts fall below that standard. He argues the trial court erred in excluding his experts' testimony, "ruling as a matter of law that the `standard of care' is a legal issue."

[¶ 6] "The doctrine of informed consent is essentially the duty of a physician to disclose sufficient information to permit a patient to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure." Koapke v. Herfendal, 2003 ND 64, ¶ 14, 660 N.W.2d 206. If a physician fails to obtain a patient's informed consent, the physician may be found negligent. Jaskoviak v. Gruver, 2002 ND 1, ¶ 13, 638 N.W.2d 1. "A plaintiff in an informed-consent case must establish breach of a physician's duty of disclosure, causation, and injury." Id. An integral part of a physician's duty to a patient is the disclosure of available choices for treatment and the material and known risks involved with each treatment. Winkjer v. Herr, 277 N.W.2d 579, 587 (N.D.1979).

[¶ 7] In Winkjer, 277 N.W.2d at 587, we recognized that a majority of courts have related a physician's duty of disclosure to a subjective standard of the custom of physicians practicing in the community, while a growing number of jurisdictions have adopted an objective standard for measuring the performance of a physician's duty of disclosure based on conduct that is reasonable under the circumstances. We said the jurisdictions adopting the objective standard have stated that a patient's right of self-determination in a particular treatment requires a standard set by law for physicians rather than a subjective standard that physicians may impose upon themselves, and expert testimony on the standard of disclosure is generally allowed as relevant evidence, but that testimony supplements and does not define a physician's legal duty to inform. Id. at 587-88. We acknowledged that expert medical testimony may not be required to establish the existence of a duty to disclose risks under the objective standard, but under either the objective or subjective standard, expert medical testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives, especially when that information is outside the common knowledge of laypersons. Id. at 588. In Winkjer, at 588-89, we concluded the plaintiff had failed to produce expert testimony to refute the defendant's showing there was no genuine issue of fact regarding disclosure of a known risk. Although we recognized a growing number of jurisdictions had adopted the persuasive reasoning of the objective standard, we did not specifically decide whether the standard for disclosure is measured by "the custom of the physician practicing in the community," or by what is "reasonable under the circumstances." Winkjer, at 587-89. See Lemke v. United States, 557 F.Supp. 1205, 1212 (D.N.D.1983); Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D.1983). See also Laurel R. Hanson, Note, Informed Consent and the Scope of a Physician's Duty of Disclosure, 71 N.D. L.Rev. 71, 77-80 (2001).

[¶ 8] In Jaskoviak, 2002 ND 1, ¶¶ 17-19, 638 N.W.2d 1, without explicitly adopting either the subjective or objective standard of disclosure, we discussed common ground under both standards:

In acquiring a patient's informed consent to a medical procedure, a physician should disclose a number of things:

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.

1 [Dan B.] Dobbs, [The Law of Torts], § 251 [2001]. See also Steven E. Pegalis, American Law of Medical Malpractice 2nd § 4:1, pp. 186-88 (1992), noting the American Hospital Association Risk Management Handbook advises disclosing the nature and purpose of the proposed test or treatment, the probable risks and benefits of the proposed intervention, alternative forms of care and their probable risks and benefits, remote or unusual risks involving severe injury, disability, or death, and the risks of refusing care or diagnostic tests.

Assessing the materiality of a risk involves a two-pronged analysis: (1) "an examination of the existence and nature of the risk and the probability of its occurrence"; and (2) "a determination by the trier of fact of whether the risk is the type of harm which a reasonable patient would consider in deciding on medical treatment," Guidry [v. Neu], 708 So.2d [740,] 744 [(La.Ct.App.1997)]. The materiality of information about the risk of a potential injury is a function of the severity of the potential injury and of the likelihood it will occur. 2 [J.D. Lee and Barry A. Lindahl,] Modern Tort Law, § 25:46 [(Rev. ed.1989)]; 1 Dobbs, supra, at § 251. A physician is not required to inform a patient of risks that are so remote as to be negligible even where the consequences may be severe, and is not required to inform the patient of a very minor consequence even though the probability is high. 2 Modern Tort Law, supra, at § 25:46. Thus, as this Court recognized in Winkjer, 277 N.W.2d at 588:

A duty to disclose can arise only if the physician knew or should have known of the risks to be disclosed. Cornfeldt v. Tongen, [262 N.W.2d 684 (Minn.1977)]. 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

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