Stanton Territorial Hospital in September 2022. Ollie Williams/Cabin Radio
Yellowknife doctor Andrew Kotaska has released a written statement following sanctions related to the sterilization of an Indigenous woman.
The woman’s lawyer is separately seeking to hear from other women in the territory who may have suffered involuntary sterilization, saying a class action could ultimately follow.
Kotaska, a doctor formerly employed at Stanton Territorial Hospital in Yellowknife, released a statement at the end of August following sanctions by a board of inquiry earlier this year.
In November 2019, during a diagnostic surgery in which a patient had given consent to remove only her right fallopian tube and ovary if necessary, Kotaska opted to remove both tubes. The procedure left her sterile.
A board of inquiry representing the NWT’s medical licensing authority found the decision to remove both tubes “represented a significant lapse in judgment” and suspended his medical licence for five months. He was asked to pay a $20,000 penalty and undergo remedial ethics training.
In April 2021, the woman, who is Inuk, filed a $6.5-million lawsuit in the NWT Supreme Court against the territorial government and Kotaska.
In a statement of defence submitted in 2022, Kotaska originally stated he “exercised appropriate medical judgment” and denied breaching the standard of care required.
A year later, Kotaska is publicly acknowledging his error and offering an apology.
“The board of inquiry found that exceeding consent without an intra-operative emergency constituted unprofessional conduct and a serious error in judgment on my part,” he wrote in a statement shared with Cabin Radio.
“I accept this and apologize for it. I recognize that my action in this case caused suffering for my patient and has eroded my contribution to women’s health.”
Prior to 2019, Kotaska might have seemed an unlikely subject for such an inquiry.
In addition to having served as president of the NWT Medical Association, Kotaska has more than 30 years of experience practising medicine. He has held professorships at the Department of Obstetrics and Gynecology at the University of Toronto and University of Manitoba, as well as spending time at the the University of British Columbia’s School of Population and Public Health.
On a UBC faculty profile, Kotaska’s academic interests are listed as “respecting women’s autonomy, avoiding unnecessary obstetrical intervention … the overestimation of risk [and] the ethics of informed consent and refusal.”
He is a listed author on several articles on obstetrics and consent when caring for Indigenous patients. In 2017, he wrote a paper titled “Informed consent and refusal in obstetrics: a practical ethical guide”that was published in Birth, a peer-reviewed medical journal.
Consent in medical ethics
Kotaska has not previously spoken to reporters regarding the lawsuit or the board’s findings. He says some reports omit key details.
He asserts he would never have made the choices he did had he believed the woman wished to become pregnant again.
“As a modern obstetrician and gynecologist, I would not offer a woman removal of her tubes or tubal sterilization unless she had indicated that she was not planning to have further children,” he told Cabin Radio.
However, in a statement that appeared in a report made public by the board of inquiry in May, the woman told the board she had planned to have more children.
During the inquiry, the question of future children was a key factor in determining the extent of sanctions.
Kotaska’s clinical records, and a deposition from a medical student who was present during a consultation, support the position that the woman may have previously indicated she did not plan to have more children.
In documents accessed by Cabin Radio detailing the board’s decision, the board wrote: “The panel acknowledges that this finding is not consistent with the testimony provided by the patient or her spouse, and to the extent that the evidence differs on this point, the panel prefers the evidence of Dr Kotaska.”
What no one disputes is that the patient did not want her left fallopian tube removed, and did not sign a consent form authorizing the removal of her left tube.
According to an expert in medical ethics, whether or not one intends to use an organ isn’t relevant to the issue of consent.
Robyn MacQuarrie teaches obstetrics and gynecology ethics at the University of Ottawa. She previously served a two‐year term on the American Congress of Obstetricians and Gynecologists Committee on Ethics, currently acts as an advisor as part of the Canadian Medical Association’s Committee on Ethics, and is pursuing a PhD in bioethics.
“If it’s something she specifically said no to, it doesn’t matter why she said no,” said MacQuarrie. “She declined to have it done. That’s kind-of the end.”
During surgery on the patient, Kotaska determined that the presence of an ovarian and paraovarian cyst, among other abnormalities, necessitated the removal of the right fallopian tube and right ovary, which was completed without incident. The patient had understood this was a possibility and signed off on it.
At this juncture, he is alleged to have remarked aloud: “Let’s see if I can find a reason to take the left tube as well.”
Kotaska flatly denied making that comment in his legal defence in 2022, but the board of inquiry in 2023 recorded: “His explanation was that he was voicing his thought process out loud.”
In his statement, Kotaska outlines three reasons he made the decision he did during surgery that day in November.
The first was the understanding that his patient wished to be sterile. The second was in thinking of the possibility of future cancer for his patient. The third was to treat the patient’s condition of pelvic pain.
On that third point, his defence reads: “Given the presentation of the left fallopian tube (moderately swollen and hyperemic, with markedly engorged mesosalpingeal veins), Dr Kotaska determined that the nature of the plaintiff’s overall condition represented pelvic congestion syndrome, which ultimately would benefit from the removal of both fallopian tubes.”
MacQuarrie acknowledged that taking out both tubes does diminish the risk of cancer and possible complications later in life, but emphasized consent is especially critical for this kind of surgery.
“I normally take out both the tubes to decrease the risk of tubal ovarian abscess and ovarian cancer down the road,” she said. “But if someone says no, that’s their decision to make. It’s not like you can undo taking out tubes. It’s not reversible. So if you’re doing it electively, you need to be certain.”
MacQuarrie also questioned Kotaska’s third motivation for removing the left fallopian tube – that he had diagnosed and opted to treat a case of pelvic congestion.
“Doing a tubal … is certainly not something that we would typically do in the routine treatment of pelvic congestion syndrome,” she said. “Pelvic congestion is also diagnosed in relation to the ovarian veins, not the veins of the fallopian tubes.”
In the end, Kotaska’s credentials in the field of ethics and medicine may have worked against him. Citing his age, experience, and accolades, the board of inquiry wrote: “The panel is not dealing with an inexperienced or unsophisticated member, and the member clearly ought to have known better.
“Considering that this surgical decision was made during the course of an uneventful operation, in circumstances where the possibility [had previously been] raised and rejected by the patient, whilst the patient was anesthetized, adds to the severity of the unprofessional conduct.”
What will happen next?
Over the summer, the board’s decision made national headlines and prompted renewed discussion of the involuntary sterilization of Indigenous women in Canada.
Disciplinary hearings can present an opportunity to hold doctors accountable for missteps and take rehabilitative steps to restore trust between the physician and the public – but Indigenous trust wasn’t addressed by the board.
Kotaska’s hearing never set out to determine if he acted with appropriate cultural sensitivity; the patient’s race was not mentioned in the panel’s decision report, nor was it listed as a factor in determining the severity of the incident.
It would also be understandable if clearance from the College of Physicians and Surgeons of Alberta, the authority that oversees NWT physician complaints, might not put Indigenous women entirely at ease.
Between 1928 and 1972, working in collaboration with the Alberta Eugenics Board, that same College approved more than 4,000 non-consensual sterilizations as part of the Sexual Sterilization Act.
In his legal defence to the patient’s lawsuit, Kotaska denied his actions were in any way racially motivated or constituted a “forced sterilization.”
That issue is left for the courts to determine.
The lawsuit is still in the discovery phase. If settled privately, there will be no public trial. If the case were to proceed to trial, it would likely happen at some point in 2024.
Cooper believes there may be a number of women in the Northwest Territories impacted by involuntary sterilization. If that’s the case, he says, an NWT class action may be a path to justice.
“What that does is it covers everybody, whether or not they have the ability, the courage, the internal fortitude to come forward and make a claim,” he said. “I hope they come forward and speak to us.”
The patient’s lawsuit briefly acknowledges the historical weight attached to the case with a short statement: “As an Inuit woman, the plaintiff belongs to a class that has historically been targeted by eugenics movements and a class that continues to suffer overt and systemic racism.”
The Northwest Territories Health and Social Services Authority rejected this in its statement of defence, writing that the history of eugenics and continuing systemic racism experienced by Inuit patients “had no foundation in fact.”
Asked to confirm the health authority’s position on eugenics and systemic racism, a representative wrote that while the authority could not comment on legal proceedings, it acknowledged systemic racism and had taken steps to ensure the cultural safety for Indigenous patients.
What could the future look like?
Many health authorities recognize that a one-size-fits-all approach to healthcare can leave out Indigenous patients.
In a position statement on forced and coerced sterilization, the National Council of Indigenous Midwives (NCIM) says healthcare providers must take cultural and medical history into consideration during discussions around birth control.
For NCIM, this also applies to training and disciplinary action.
NCIM places responsibility on governments and regulatory colleges to establish policies and accountability mechanisms around sterilization, as well as cultural competency training for all healthcare professionals.
This means those governments and colleges must “provide clear guidance on how to ensure sterilizations are only performed with free, full, and informed consent” and have a procedure in place to investigate and sanction incidents of forced, coerced, and involuntary sterilization.
This approach, which more specifically acknowledges the history of colonialism and Indigenous needs, might go further to restore trust with Indigenous colleagues and patients after an incident.
The CBC reported several of Kotaska’s colleagues rose to his defence during the hearing, describing him as an “accomplished, thoughtful surgeon.”
“I have learned and grown through this experience, and I hope to continue working with humility to empower women to obtain care in keeping with their values, as close to home as possible,” Kotaska stated.
But at least one woman was left with lingering questions.
“The whole situation is super complex,” said a healthcare worker with significant northern experience who spoke to Cabin Radio on condition of anonymity to discuss a sensitive case.
“Even for me, figuring out how I feel about it… that doctor is very important to reproductive health and choice in the NWT,” the healthcare worker said.
“But this happened.”
The patient at the centre of this report did not return a request for comment. Her lawsuit’s statement of claim describes ongoing anxiety, humiliation and distress.