Flatt v. Kantak, Page 1
pages the following court documents above have been reproduced for those
whose browsers have difficulty capturing pdf files:
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 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
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
PLAINTIFFS’ MEMORANDUM IN OPPOSITION
TO MOTION FOR
[This request for a Denial of Dismissal was granted, so the trial
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,
and Anita Flatt and James Flatt,
IN OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY
Plaintiffs, JUDGMENT AND MOTION IN
LIMINE TO EXCLUDE TESTIMONY
OF PLAINTIFFS’ WITNESSES
Sunita A. Kantak, M.D., MeritCare
Civil No. 99-3761
I. FRIVOLOUS PLEADING
The filing by Defendants of this Motion for Summary Judgment is wholly
without merit, frivolous, and presented for an improper purpose such as to
harass Plaintiff or needlessly increase the cost of litigation.
Plaintiff will seek assessment of reasonable costs, expenses and
attorney’s fees pursuant to N.D.R.Civ.P. Rule 11(b), N.D.C.C. §28-26-31,
and N.D.C.C. §28-26-01. The basis of the motion for sanctions will
be set out more fully in a Rule 11 Motion.
Before responding to the substance of Defendants’ Motion for Summary
Judgment, Plaintiff is compelled to comment on the footnote on page 1 of
Defendants’ Brief in Support of Motion for Summary Judgment (hereinafter
referred to as Defendants’ Memorandum). Defendants purport to put
this claim into context by suggesting that the case originally involved
claims against the State of North Dakota challenging the constitutionality
of N.D.C.C. §12.1-36- 01 as a violation of the Equal Protection Clause of
the United States and State Constitutions. This Court dismissed the
constitutional claims. In spite of the request by Plaintiffs to
enter final judgment on the constitutional issues, this Court declined to
do so preventing final judgment from being entered so an immediate appeal
could be taken. N.D.R.App.Pro. Rule 4(A). An appeal will be
taken following entry of final judgment.
The disturbing allegation in Defendants’ Memorandum is “Plaintiffs’
counsel’s similar crusade in Federal Court to overturn the same State
statute had been rejected for lack of standing.” (Defendants’
Memorandum, p. 1, footnote 1) As an officer of the Supreme Court of
the State of North Dakota, the Supreme Court of the State of Minnesota,
the Eighth Circuit Court of Appeals, and the United States Supreme Court,
I took a solemn oath to support and defend the Constitution of the United
States in pursuing my legal career. If defense of the Equal
Protection Clause of the United States Constitution and the Constitution
of the great State of North Dakota to insure that baby boys are granted
equal protection of their genitalia under the laws of the State is a
crusade, I plead guilty. Defendants’ counsel is on no less a
“crusade” in defending the primitive, barbaric practice carried on by the
medical community in violation of their bedrock principle “first do no
harm”. The medical community perpetuates the mutilation of baby boys
without benefit of medical diagnosis purely and simply to satisfy the
whims of the parents. The “crusade” argument advanced by Defendants
is solely intended to deflect attention from the real issues in this case,
i.e. the continuance at the hands of medical doctors of a barbaric
procedure which is not “medical treatment” and is universally condemned in
civilized societies throughout the world. The jury should decide the
issue and judge the medical doctors’ continuing complicity in this serious
affront to human rights of infant boys.
III. STANDARD OF REVIEW
Summary judgment should be granted only if it appears that there are no
genuine issues of material fact or any conflicting inferences which may be
drawn from those facts. N.D.R.Civ.P. Rule 56(C), Production
Credit Assn. of Minot v. Klein, 385 N.W.2d 485 (N.D. 1986). The
party moving for summary judgment has the burden to demonstrate clearly
that there are no genuine issues of material fact. Binstock v.
Tschider, 374 N.W.2d 81 (N.D. 1985). In considering a motion for
summary judgment, the Court may examine the pleadings, depositions,
admissions, affidavits, interrogatories, and inferences to be drawn
therefrom to determine whether summary judgment is appropriate.
Everett Drill Vent. v. Knutson Flying Serv., 338 N.W.2d 662 (N.D.
1983). In so doing, the Court must view the evidence in a light most
favorable to the party opposing the motion, and that party will be given
the benefit of all favorable inferences which can reasonably be drawn from
the evidence. Id. The resisting party must present
competent, admissible evidence by affidavit or other comparable means
which raises an issue of material fact and must, if appropriate, draw the
Court’s attention to relevant evidence in the record by setting out the
page and line in depositions or other comparable documents containing
testimony or evidence raising an issue of material fact.
Industrial Commission of North Dakota v. Wilbur, 453 N.W.2d 824 (N.D.
1990). A genuine issue of fact is material if it might affect the
outcome of the suit under the governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
IV. INFORMED CONSENT POST
A. OBJECTIVE STANDARD IS “BEST
INTEREST” OF CHILD.
Defendants mischaracterize Plaintiffs’ claim. The Defendants
recognize there are disputed issues of material fact, which in and of
itself is sufficient to deny summary judgment unless the issues remaining
are purely a question of law. Defendants assert “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, Plaintiffs have failed to produce
testimony from qualified experts as required to put an informed consent
claim before a jury.” (Defendants’ Memorandum, p. 2) This
position is wholly without merit and frivolous.
The Complaint against Defendants is that Dr. Sunita A. Kantak failed to
obtain “informed consent” before performing the circumcision procedure on
Josiah Flatt. (Complaint, ¶ 28) The Complaint alleges a causal
relationship between the failure to obtain informed consent and the
resulting circumcision of Josiah Flatt causing severe and permanent
injuries. (Complaint, ¶¶ 29 and 30)
A plaintiff in an informed consent case must establish breach of a
physician’s duty of disclosure, causation, and injury. Jaskoviak
v. Gruver, 638 N.W.2d 1, 6 (N.D. 2002) A causal connection
exists when adequate disclosure would have caused the patient to withhold
consent to the particular course of treatment or procedure.
Buzzell v. Libi, 340 N.W.2d 36, 40 (N.D. 1983). A patient can
establish a causal connection between an injury and the physician’s
failure to disclose by showing that had there been a proper disclosure,
the patient would not have consented to the treatment. Jaskoviak
at 7, citing To J.D. Lee and Barry A. Lindahl, Modern Tort Law, ¶
Jaskoviak, Id. p. 9, North Dakota has adopted a rule that a
Plaintiff’s cause of action is not limited to the existence and
nonperformance of a relevant “professional tradition”. The standard
to be followed is that in deference to the patient’s right of
self-determination in particular therapy demands, a standard “set by law
for physicians must be developed rather than one which physicians may or
may not impose upon themselves”. Jaskoviak, 638 N.W.2d 8
citing Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772
(1972), cert. den. 409 U.S. 1064. Jaskoviak went on to hold
that the standard for measuring the performance of a physician’s duty as
it relates to informed consent is conduct which is reasonable under the
circumstances. The test, therefore, for determining whether a
particular peril must be divulged is its materiality to the patient’s
decision. All risks potentially affecting the decision must be
unmasked. Id. at 8. Ultimately, the trier of fact must
determine whether a reasonable person in the Plaintiff’s position would
attach significance to the specific risk. Jaskoviak at 9.
Defendants’ argument beginning at page 11 of Defendants’ Memorandum
entitled “Under North Dakota Law a Parent Can Consent to Circumcision of
an Infant Son Whether or Not There is a Medical Indication or Abnormality”
may be a proper statement of law, but it is totally irrelevant to the
issue of informed consent as framed in the pleadings. There is no
claim in the Complaint arguing that parents do not have the authority to
medically indicated treatments. It is true Plaintiffs’ experts
believe the consent for non-medical removal of otherwise healthy
tissue is not a valid consent. The real issue is, however,
what information Dr. Kantak gave to Anita Flatt in order to inform her of
the risks and benefits of the procedure to meet the informed consent
standard to remove healthy genital tissue for non-medical reasons.
B. STATUTORY STANDARD OF
Although cited in passing, Defendants do not analyze the North Dakota
Century Code dealing with “informed consent”. N.D.C.C. §23-12-13
sets forth the standard for obtaining informed consent in the State of
North Dakota. The standard for obtaining informed consent applies to
any healthcare decisions for a minor patient. N.D.C.C.
§23-12-13(1). There is no disagreement that Josiah Flatt was a minor
patient when he was circumcised on March 7, 1997. The statute
sets out specific limits on the exercise of authority to consent to
healthcare of a minor. Before a parent is authorized to give
informed consent, the parent must:
“first determine in good faith that the
patient, if not incapacitated, would consent to the proposed healthcare.
If such a determination cannot be made, the decision to consent to the
proposed healthcare may be made only after determining that the proposed
healthcare is in the patient’s best interest.”
Accordingly, under North Dakota statutory law, the standard for obtaining
informed consent for a minor involves two inquiries. First, if the
patient (infant) were able to communicate his desires, would he consent to
the procedure? The obvious answer is no given the shrieks and cries
of babies undergoing the procedure who, in their rudimentary way, are
attempting to communicate their displeasure to medical providers who
apparently are oblivious to its meaning. And second, absent a
determination that the infant would want the procedure done, a healthcare
provider may only do the circumcision after determining that the
circumcision is in the infant’s best interests. The infant’s best
interests would be to leave the foreskin intact. Thus, the
analysis of “informed consent” must begin with the “best interest” of
Defendants devote considerable effort to the argument that the entire
premise for the Plaintiffs’ informed consent claim is a mistaken view of
fundamental North Dakota law. (Defendants’ Memorandum, p. 12)
This is a misstatement of the pleadings and totally unsupported by the
To the contrary, the Defendants want this Court to ignore statutory
positive law directly applicable to this case. The plain language of
the consent statute (which was not analyzed by the Defendant) requires a
determination to be made before a circumcision can be performed that the
baby, if not incapacitated, would consent to the healthcare, or, absent
such divine knowledge, the person giving consent would need to determine
that the circumcision was in the baby’s “best interest”. In order to
determine whether or not circumcision was in the baby’s “best interest”, a
parent must be given all available information on the benefits and risks
of the procedure in an unbiased manner. A description of the
benefits and risks must be provided by the medical doctor.
The AAP Circumcision Policy Statement (Kantak Depo. Ex. 10, Z.
Baer Affd. Ex. 5) concluded that there is not sufficient data to
recommend routine neonatal circumcision. The AAP found that
circumcision is not essential to the child’s current well being, and in
order to make informed choices, parents of male infants should be given
accurate and unbiased information and be provided the opportunity to
discuss the decision. (Kantak Depo. Ex. 10, Z. Baer
Affd. Ex. 5) If there is no medical benefit to a procedure, the
prophylactic removal of healthy tissue is not in the child’s best interest
and could be considered criminal assault. Imagine if the medical
doctor removed a finger, earlobe, or other body part at the request of the
Clearly, there is a legal basis for the informed consent claim and
Plaintiffs are not attempting to attack the fundamental right of a
parent to consent to “medical care of an infant child”. Routine
circumcision, however, does not fall under the rubric of “medical care”
inasmuch as there is no medical condition being treated by the routine
surgery. (VanHowe Depo. p. 36, Z. Baer Affd. Ex. 7)
The structure of the informed consent statute in North Dakota recognizes
the autonomy of the child and that limitations on parents are embedded in
the statute making parents and medical doctors accountable for decisions
touching on medical care of infants unable to communicate their needs.
There are only two circumstances under which informed consent can be
obtained for circumcision, i.e. if the baby were not incapacitated would
he consent? If that determination cannot be made, the procedure can
be done only if it is in the child’s best interest. N.D.C.C.
§23-12-13(3). “Best interests” can only be determined by the finder
of fact. A compelling argument could be made that “best interests”
could never involve the amputation of highly erogenous, sensitive tissue
from the penis of a newborn for purely cosmetic reasons.
Applying N.D.C.C. §23-12-13(3) to the facts of this case, Dr. Kantak’s
duty was to disclose to Anita Flatt all of the risks and benefits known
when performing a circumcision. Jaskoviak at 8. In
other words, would a reasonable parent attach significance to risks
associated with the circumcision procedure so as to effect the parent’s
decision on allowing the assault and battery on their infant son’s
genitalia? Defendants deliberately omit any reference to the “best
interest” standard in an attempt to mislead the Court.
C. MATERIAL FACTUAL DISPUTE.
1. He Said/She Said.
Overlooked by Defendants in their zealous attempt to deflect the Court’s
attention to an irrelevant issue, is the fundamental material factual
dispute as it relates to what was said by Dr. Kantak to Anita Flatt to
meet her duty to convey complete information of the risks and benefits of
circumcision. Dr. Kantak does not recall any aspect of the
discussions she had with Anita Flatt about the risks or benefits of
circumcision, nor ever met James Flatt. (Kantak Depo. pp.59,
64, 66, 128, Z. Baer Affd. Ex. 5; Answer to Interrogatory No. 27,
subp. (b), Z. Baer Affd. Ex.10) Dr. Kantak has no
recollection of ever meeting James Flatt and only had brief encounters
with Anita Flatt, the nature of which are subject to dispute. There
is nothing in the medical records
describing the risks or benefits. (Kantak Depo. Ex. 4, Z.
Baer Affd. Ex. 5) (Only the printed form suggesting risks and
benefits were discussed.)
On the other hand, Anita Flatt specifically recalls a nurse approaching
her in the late evening of March 6, 1997, with a consent form to sign.
(Kantak Depo. Ex. 5, Z. Baer Affd. Ex. 5) She had a
number of questions about the consent form and the circumcision process.
The nurse indicated she would need to talk with the doctor in the morning.
Anita Flatt was told she could not be present during the circumcision
procedure. (A. Flatt Depo. p. 33, Z. Baer Affd. Ex. 3)
Anita Flatt recalls the first meeting with Dr. Kantak being March 7, 1997,
“and she didn’t even come in my room.
And - she was just in the doorway. . . and I remember saying-asking about
pain. Is there pain? . . . She was using her hands. And
something about for the pain. It’s nothing. And I remember her
using her hands and her head. And all of a sudden she was gone.”
(A. Flatt Depo. p.
34, Z. Baer Affd. Ex. 3) In addition, in response to
deposition inquiry about what Plaintiff asked Dr. Kantak at the initial
meeting, she responded:
“I know I was concerned about pain. I
know she brushed it off as nothing. They use something. I
cannot tell you what she called it. She said something that was
used. She was using her hands. I remember I was asking about
pain. And that I think I said I understood-confirmed that she does
all the boys, they line up all the boys and they do them. And that I
couldn’t be in the room. But that was it. I talked about pain.
I remember I asked a lot about pain.”
(A. Flatt Depo. p.
46, Z. Baer Affd. Ex. 3) Specifically to the point Anita
“Sunita Kantak did not let me make an
informed choice that is for my son. And I am a believer, after going
through all this, that that is my son’s choice. Someone cut a piece
of his body and caused injury to him and I have a lot of guilt. My
son-my husband was in tears. He described his penis as a bloody
stump. I mean it’s a very private issue. Then as time goes on,
we see that there is this lump of skin on the side of the penis.
That doesn’t help. I wish I was more informed. God, I wish I
would have read about it, I wish my family would have talked about it.
I wish I would have been informed.”
(A. Flatt Depo. p.
49, Z. Baer Affd. Ex. 3) Anita Flatt goes on to say:
“. . . I’m guilty of being ignorant and not
knowing that. I relied on [Kantak] to give me the medical knowledge
about it. I didn’t get it. I didn’t–you know, maybe it comes
down to this. Did I drill her and say use medical terms. No.
I was ignorant. I didn’t know. And I didn’t get them from
(A. Flatt Depo. pp.
49-50, Z. Baer Affd. Ex. 3) Anita Flatt further states:
“I remember the biggest shock to me was little boys still die from being
circumcised. And that one to Jim and I was the one–I mean, even like
.1 percent chance that Josiah could have died, I needed to know that.
I didn’t know that. No one told me that. Bleeding.
Excessive bleeding. Infection. That’s all like stuff that it’s
not like skin that doesn’t feel. It’s stuff that feels. It’s
the sensation. All that is gone.
(A. Flatt Depo. pp.
52-53, Z. Baer Affd. Ex. 3) Anita Flatt further testified:
“I should have been told all the risks that
the medical trained professionals know. I mean, from a medical
standpoint they’re the experts. I needed to rely upon them. I
am not a medical expert. I needed to be told about the bleeding.
I needed to be told about any, any percentage chance of a death. I
needed to be told about infection issues. I needed to be told about
what is this you are taking away from him. It’s full of nerves, it’s
full of sensation. I mean, it has an impact on his sexual life.
I need to be told that. Those issues are for him to decide when he’s
older. The fact that the complications. I think I needed to be
told that–you know, I went in there thinking every guy looks the same
circumcised. That sometimes they don’t get circumcised right.
And I felt I needed to be told the risk that my son has a bulge of skin on
the side of his penis. I needed to know that it wasn’t just
something so routine and just we do it routinely, we line them up, we go
through, it’s nothing big.
The pain is a big one for me. I
needed to be told that it is painful. My understanding from Dr.
Kantak is, oh, nothing. She uses something. Nothing. My
son was in pain. That was pain.”
(A. Flatt Depo. pp.
53-54, Z. Baer Affd. Ex. 3)
James Flatt testified that he did not get any information from Dr. Kantak
and recalls seeing nothing on circumcision. (J. Flatt Depo.
pp. 25, 29, Z. Baer Affd. Ex.4) James Flatt testified that he
should have been told that Josiah
“could die from the–that he could die from it. That he would be in
extreme pain. That it’s–I don’t know how to say it. When I
seen–when he was circumcised, after I seen it, it was pretty graphic to me
of the, I mean, the nature of the cut. I mean, if I look at it I was
never told that he could die, he could get infection, he could–I mean,
that it’s going to take away sexual pleasures from him later on in life.
Everything. I mean, nothing was expressed to me in that.”
(J. Flatt Depo. p.
32, Z. Baer Affd. Ex. 4)
James Flatt unequivocally stated he would not have had his son circumcised
if he had been aware of the risks. (J. Flatt Depo. pp. 32,
33, 38 and 45,
Z. Baer Affd. Ex. 4)
Based on these fundamental material disputed facts, summary judgment is
not appropriate. It is for a jury to decide the believability and
credibility of witnesses describing these facts. There is no basis
for awarding summary judgment on an informed consent case when the entire
case revolves around a “he said/she said” argument. Dr. Kantak has
no recollection of what she said, only a recollection of what her normal
practice is. Anita Flatt and James Flatt have vivid recollections of
what was described to them. Taking the evidence most favorable to
Plaintiffs, and drawing all inferences from that testimony in their favor,
summary judgment is not warranted.
In fact, even if Plaintiffs had no expert witness testimony, a compelling
argument could be made that given the standard of “best interest” of
Josiah Flatt as described in Jaskoviak, summary judgment would be
inappropriate. According to the teaching of Jaskoviak, a
standard set by law for physicians has been established. That
standard is a “best interest” standard as defined in N.D.C.C.
§23-12-13(1)(3). Even lay people understand it is not in the “best
interest” of a child to be subjected to needless, painful surgery that
amputates the most erogenous tissue of the human body.
V. EXPERT WITNESSES
Having established a material factual dispute as to what, if anything, was
described to Anita Flatt regarding the risks and benefits of a
circumcision, the next analysis must be a fleshing out of the medical
standards on what the risks and benefits of the procedure are. Under
settled North Dakota law, expert medical testimony is generally necessary
to identify the risks of treatment, the gravity, likelihood of occurrence,
and reasonable alternatives. Jaskoviak, 638 N.W.2d at 9,
Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979). Plaintiffs
have disclosed three expert witnesses prepared to describe the risks and
benefits of circumcision and the elements of informed consent.
Let me first address the issue about qualification for expert witnesses.
Trial Court’s should be extremely cautious in entering summary judgment in
medical malpractice cases because of a lack of expert testimony, in view
of reluctance of members of the medical profession to testify against
fellow physicians. Winkjer v. Herr, 277 N.W.2d 579, 589 (N.D.
1979). N.D.R.Civ.P. Rule 702 envisions generous allowance of the use
of expert testimony if the witnesses are shown to have some degree of
expertise in the field in which they are to testify. Meyer v.
Rygg, 630 N.W.2d 62, 66 (N.D. 2001). A physician can testify
about another field of medicine within his experience, even though it is
not his specialty.
Collom v. Pierson, 411 N.W.2d 92, 96 (N.D. 1987), cited with approval
in Blessum v. Shelver, 567 N.W.2d 844 (N.D. 1997). An
objection about the extent of the expert’s experience affects the weight
of the testimony and not its admissibility. Id. It is
not necessary that a physician testifying as an expert witness about the
care and treatment rendered by a defendant physician be commensurate or
consistent with the same school of medicine, same field of medicine, and
same general line of practice as defendant physician. Collom Id.
Defendants do not challenge the need for expert testimony to establish the
standard of care, but argue that Dr. Robert VanHowe, a board certified
pediatrician who has done primary research on the issue of circumcision,
is not sufficiently qualified to testify as to the standard of care
because he has never performed a circumcision. Defendants argue that
in spite of the fact that Dr. VanHowe was invited to present his findings
of research of 4,500 medical articles on the issue of circumcision to the
American Academy of Pediatrics Committee studying circumcision, he is
unqualified to give an opinion as to the standard of care.
Additionally, Defendants content that Dr. Christopher Cold, a Pathologist
who has extensively researched the subject of male infant circumcision and
done primary research on the anatomy, histology, and development and
function of the foreskin is insufficiently qualified. (Christopher
Cold Affidavit February 28 2002, Z. Baer. Affd. Ex. 11)
Finally, Defendants contend that Dr. Eileen Wayne, a surgeon specializing
in opthomology who is regularly required to obtain “informed consent” for
procedures is not sufficiently qualified to help the finder of fact.
Dr. Wayne is a member of the American College of Legal Medicine, and
identified as an expert on informed consent. (Z. Baer Affd.
Ex. 12) Dr. Wayne is the author of “Informed Consent for Medically
Necessary Circumcision”, which is a partial list of the risks and benefits
associated with the circumcision procedure affirmed by defense experts Dr.
Kaplan and Dr. Shoemaker. (Wayne Depo. Ex. 3, Z. Baer
Affd. Ex. 6) Dr. Wayne is the author of draft legislation concerning
informed consent and medical accountability submitted to Congress in 1994.
(Wayne Depo. Ex. 7, Z. Baer Affd. Ex. 6)
The attack by Defendants on the qualifications of Drs. VanHowe, Cold and
Wayne, to testify on the standard of care for physicians who circumcise,
suggests a standard of care rejected by Jaskovick in that a
Plaintiffs’ cause of action is not limited to the “existence and
nonperformance of a relevant professional tradition” and that enlightened
societies demand a standard set by law for physicians. Id. at
8. After all, no less authority than defense expert Dr. Kaplan wrote
that circumcision is traditionally done by “inexperienced operators who
are neither urologists nor surgeons”.
There is no Board who reviews qualifications to perform a circumcision.
Physicians present nothing to the hospital to show they are skilled and
qualified to perform circumcisions. (Wayne Depo. p. 13, Z.
Baer Affd. Ex. 6)
Defense expert Dr. Shoemaker agrees with Dr. Wayne that unnecessary
surgery is called fraud and abuse. (Shoemaker Depo. p. 122,
Z. Baer Affd. Ex. 9; Wayne Depo. p. 37, Z. Baer Affd.
Ex. 6) In a broader sense, Dr. Wayne is of the opinion that
performing unnecessary and nonmedically indicated procedures on
nonconsenting patients is fraud and abuse. (Wayne Depo. pp.
38-39, Z. Baer Affd. Ex. 6) She further indicates that the
standard of care in medical practice is that a parent’s consent for
unnecessary surgery on a minor infant is invalid. (Wayne Depo.
p. 36, Z. Baer Affd. Ex. 6) Dr. Wayne is of the opinion that
circumcision should not have been offered to the parents because it was
not medically indicated. (Wayne Depo. p. 62, Z. Baer
Affd. Ex. 6) All of the Plaintiffs’ witnesses possess an abundance
of knowledge through experience, research and medical practice touching on
the issues of circumcision and informed consent.
1. Dr. Robert VanHowe,
Board Certified Pediatrician.
Dr. VanHowe is a Board certified pediatrician, a colleague of Defendant
Dr. Kantak and defense expert witnesses Drs. Lunn and Shoemaker.
Although Dr. VanHowe does not perform circumcisions for philosophical
reasons, he has extensively researched, written and published on the
issue. Dr. VanHowe has reviewed at least 4,500 articles on the issue
of genital alteration. (VanHowe Depo. pp. 1, 3-4, 65-66,
Z. Baer Affd. Ex. 7) Dr. VanHowe has been retained and acted as
an expert witness in a number of cases involving circumcision. (VanHowe
Depo. pp. 16-17, Z. Baer Affd. Ex. 7) Dr. VanHowe was invited
by the American Academy of Pediatrics Task Force on Circumcision to give a
presentation on his findings of the literature research, which
presentation lasted 2 _ to 3 hours. (VanHowe Depo. p. 69,
Z. Baer Affd. Ex. 7) Dr. VanHowe is a peer reviewer for a number
of publications. (VanHowe Depo. p. 75, Z. Baer Affd.
Based on Dr. Van Howe’s experience, expertise, education and training, Dr.
VanHowe would be prepared to testify that surgical amputation of the
foreskin from the male penis results in damage; surgical amputation of the
foreskin from the infant male penis is extremely painful; surgical
amputation of the foreskin from the infant male penis has early
complications such as hemorrhage, infection, amputation of glans penis,
amputation of the entire penis and death; surgical amputation of the
foreskin from infant male penis has been linked to an increased rate of
hospitalization in the first years of life; surgical amputation of the
foreskin from the infant male penis has delayed complications, including
miatal stenosis, hidden or buried penis; surgical amputation of the
foreskin results in psychological complications; surgical amputation of
the foreskin alters sexual practices. (VanHowe Affd. February
10, 2000, Z. Baer Affd. Ex. 7)
In addition, based on his experience as a medical doctor and his research
on genital alteration, he is prepared to testify there are no clear
medical benefits to male genital alteration. Id. at p. 3.
He is further prepared to testify that based on his experience as a
medical doctor and research on genital alteration that overall male
genital alteration impairs health and costs more money than it saves.
Id. at p. 6. He is further prepared to testify that based on his
experience as a medical doctor and research on genital alteration that
some forms of female genital alteration which are illegal are anatomically
identical to removal of the prepuce from the male penis. Id.
at p. 7. He is further prepared to testify that the American Academy
of Pediatrics recommends that where a parent requests an intervention that
is not in the child’s best interest, that the physician has a duty to tell
the parents no and to protect their patient who is the child. (VanHowe
Depo. p. 83, Z. Baer Affd. Ex. 7)
He is further prepared to testify that parents making a decision for
infants must meet two criteria in order to have valid consent.
First, a substitute judgment where you determine what would the child
choose for themselves if they could express a choice, or, you look to the
child’s best interest. The complications and side effects and
downside of circumcision far outweigh any potential benefits that may
exist. (VanHowe Depo. pp. 81-82,
Z. Baer Affd. Ex. 7)
VanHowe is further prepared to testify that there are certain elements of
consent which include disclosure of all known complications from the
procedure, that once full disclosure has been given, the medical doctor
must determine that the consent giver fully understands what has been
disclosed to them, and third, that you have to have a lack of coercion.
In his opinion, based on the record, Dr. Kantak did not meet the standard
of care for informed consent for the procedure of circumcision. (VanHowe
Depo. pp. 89-90, Z. Baer Affd. Ex. 7)
2. Dr. Christopher Cold,
Board Certified Pathologist.
Dr. Christopher Cold has extensively researched the foreskin and glans
penis. Dr. Christopher Cold is prepared to testify that based on
review of the medical records, the deposition of Dr. Sunita Kantak, that
she was unfamiliar with the normal anatomy, histology and development of
the penis. She also exhibited very poor knowledge of how the Gomco
clamp works, and there was no evidence that she had a thorough
understanding of the surgical procedure. She had no knowledge of the
erogenous nature of the foreskin, the normal maturation of the penis, the
indications for circumcisions, nor a full understanding of the
complications of newborn circumcision. Dr. Cold is prepared to
testify that the injury of the foreskin includes the loss of complete
coverage of the glans penis, loss of mobile skin and mucosa to cover the
penis during erection, loss of erogenous penile mucocutaneous tissue, and
a permanent scar on the penis. He is prepared to testify that Josiah
Flatt was harmed as a result of the substandard medical care provided by
Dr. Kantak and MeritCare. (See Answers to Interrogatories and
Request for Production of Documents to Plaintiff Set II, Z. Baer
Affd. Ex. 14; see also Affidavit of Dr. Christopher Cold February
28, 2000, Z. Baer Affd. Ex. 11)
Dr. Cold is further prepared to testify “I have reviewed the medical
records of Josiah Flatt, and find serious deficiencies in his care.
The informed consent does not list a true list of complications. The
operative note gives no information about the amount of anesthesia given,
or the manner of administration. The operative note does not
describe what volume of tissue was removed, and does not mention that the
tissue was submitted to pathology for histo-logic examination or used for
any experiments. There is no mention of any abnormality of the
foreskin, and therefore, it must assume that the penis of Josiah Flatt was
entirely normal before the surgeon amputated a portion of the penis.”
Id. at ¶ 17.
It is a physician’s duty to protect patient’s from unnecessary surgery.
Vulnerable patients such as infants and children must be vigorously
protected from unnecessary surgery. Circumcision takes away a man’s
opportunity to choose whether he has a complete penis or a scar on his
penis. To take away this choice and replace it with a scar violates
the physician’s oath to first do no harm. (Affidavit of Chris Cold,
para. 17, 18, Z. Baer Affd. Ex. 11)
3. Dr. Eileen Wayne, Board
Certified Opthomologist and Informed Consent Expert.
Dr. Eileen Wayne is prepared to testify as to the standard of care that
applies to pediatrician Dr. Kantak and to MeritCare as it relates to the
obtaining of informed consent. Dr. Wayne would testify as to the
standard of care applying to any physician or surgeon obtaining consent
from a proxy would require
determining and meeting the
protecting the child from
protecting the child from
noxious stimuli, pain, suffering and risk
protecting the rights of the
child to autonomy
protecting the right of the
child to physical integrity
protecting the child from
empowering the parent/child
relationship and emotional bonding.
She would further testify that Dr. Kantak departed from the standard of
care in that she
surgery upon a nonconsenting, protesting child.
Subjected the child to
noxious pain and suffering, and unnecessary surgical risk.
Waited only one minute,
rather than the usual 15 minutes, for lidocaine to take effect.
Failed to test whether the
lidocaine had taken effect.
Intentionally inflicted the
pain of both the needle sticks and an unanesthetised circumcision.
Failed to provide
postoperative pain control.
Violated the child’s right to
Destroyed the physical,
sexual and erogenous integrity of the child’s penis.
Did not remember what she was taught
in medical school about the immunologic, erogenous and mechnical gliding
functions of the foreskin.
Could not therefore disclose
that information to the mother
Failed to disclose the fact
that men are attempting to restore a quasi-foreskin and why they need to
Failed to disclose that her
son, as an adult, may be angry with her for altering his sex organ.
Failed to dictate an
operative report. Cannot name the nurse assistant or witness.
Cannot tell us if the child bled, requiring damaging cautery or sutures
causing circulatory compromise. Cannot tell us the millimeters of
foreskin amputated. Cannot tell us whether the foreskin was sold or
disposed of in an appropriate manner.
Further, she is prepared to
testify that Josiah’s injuries include:
Loss of the foreskin.
Loss of the pleasurable
erogenous sex nerves that were in the amputated foreskin.
Loss of the lubricating mucus
Loss of the immunologic
lysozyme produced by the mucus membranes.
Loss of the frictionless
gliding mechanism and sheath.
Loss of sensitivity of the
remaining glans with keratinization and drying of what should be a moist
sexually sensitive glans.
Loss of the sex appeal and
beauty of a red moist glans slipping in and out of its sheath to an
exposed dry, pink, keratinized one.
Being doomed, as an adult, to
dry sex without mucus lubrication and without the protective,
frictionless, gliding sheath of the foreskin.
Being doomed to never know
the fullness and ecstacy of sexual orgasm with a whole penis.
Decreased desirability as a
future mate and sex partners.
Loss of self esteem, knowing
that his pediatrician amputated a sexual part of him and tossed it in the
Lifelong increased risk of
Lifelong increased risk of
early sexual decline in performance.
Imprinting the limbic system
with penis pain instead of penis pleasure.
Imprinting the association of
pain, violence, and sex.
anxiety, and victim mentality.
Weakening the ability of the
child to trust.
Weakening of the pleasurable
emotional bond between parent and child.
(Plaintiffs’ Answers to
Interrogatories Set II, Z. Baer Affd. Ex. 14)
Elements of informed consent are not circumcision specific. (Kantak
Depo. Ex. 12, Z. Baer Affd. Ex. 5) The extensive experience
of the Plaintiffs’ expert witnesses more than meets the standard required
under N.D.R.Ev. Rule 702, particularly in light of the new standard
articulated by the North Dakota Supreme Court that the test for
determining whether a particular peril must be divulged is its materiality
to the patient’s decision. All risks potentially affecting the
decision must be unmasked.
Jaskoviak v. Gruver, 638 N.W.2d 1, 8 (N.D. 2002). In light of
Jaskoviak, and in light of Anita Flatt’s testimony that had she been
informed of the risks, she would not have consented, and James Flatt’s
positive testimony that if he had known of the risks, he would not have
consented to the procedure. Plaintiff has provided more than
adequate expert testimony, the weight of which can be judged by the jury.
(A. Flatt Depo. p. 53, Z. Baer Affd. Ex. 3; J. Flatt
Depo. p. 45, Z. Baer Affd. Ex. 4)
C. DEFENSE EXPERTS CONCUR WITH
Not only do Plaintiffs’ experts establish the standard of care, Defendants
and Defendants’ experts agree. For example, Defendant Dr. Kantak
agrees that the AMA Policy E-8.08 addressing informed consent accurately
reflects the standard of practice. (Kantak Depo. p. 105,
Kantak Ex. 8,
Z. Baer Affd. Ex. 5) The AMA Policy on informed consent
establishes an ethical obligation to help the patient make choices from
therapeutic alternatives. Informed consent is defined as a “basic
social policy” for which only two exceptions apply. Those exceptions
are when a patient is “incapable of consenting and harm from
failure to treat is imminent” or where disclosure would cause a threat of
psychological harm to the patient.
In addition, Dr. Kantak believes that the AAP Policy on informed consent
dated February 1995, sets the standard of practice for informed consent
amongst pediatricians. The AAP Policy indicates that a medical
doctor has a legal and ethical duty to his/her child patient based on
patient needs, not on what someone else expresses. (Kantak
Depo. pp. 109-110; Kantak Depo. Ex. 12, Z. Baer Affd. Ex. 5)
Dr. Kaplan, one of the defense experts, agrees that complications of
circumcision include bleeding, phimosis, concealed penis, skin bridges,
infections, urinary retention, infection, maetitis, chordee, inclusion
cysts, lymph edema, fistula, necrosis, hypospadeas and epispadeas,
complications of plastibel, impotence, psycho social issues, and pain and
anesthesia. (Kaplan Depo. pp. 41-42, Z. Baer Affd. Ex.
5; Complications of Circumcision, George W. Kaplan, M.D., Urologic
Clinics of North America, Vol. 10, No. 3, pp. 543-549, August 1983, Z.
Baer Affd. Ex. 15; Common Problems in Pediatric Urology, Neonatal
Circumcision, Niku, Stock, Kaplan, Vol. 22, No. 1, February 1995,
Z. Baer Affd. Ex. 16) Most complications of surgery occur at the
hands of inexperienced operators who are neither urologists nor surgeons.
(Kaplan Depo. p. 43; Z. Baer Affd. Ex. 5) The Doctrine
of Informed Consent, according to Dr. Kaplan, includes a complete
explanation of the benefits and risks of any procedure. (Kaplan
Depo. p. 137, Z. Baer Affd. Ex. 5) In order to make a
determination of whether circumcision is proper, a parent must look to the
child’s best interest. (Kaplan Depo. p. 139, Z. Baer
Affd. Ex. 5) The standard of practice on obtaining informed consent
would require a medical doctor to make a determination that the procedure
was in the best interests of the child or life saving. (Shoemaker
Depo. p. 31, Z. Baer Affd. Ex. 9) A child is born and endowed
with all the rights and privileges of a human being and a medical doctor
has a duty to respect that person. (Shoemaker Depo. p. 32,
Z. Baer Affd. Ex. 9)
In order to do a circumcision, a doctor must first tear the connective
tissue between the foreskin and the glans penis with a forceps. The
doctor then uses a blunt instrument to tear the epithelium. The
doctor then places a clamp on the foreskin and tightens the clamp to crush
the vascular system and then amputates the foreskin with a scalpel.
All medical complications known to medical doctors should be discussed
with the patient to obtain informed consent. (Shoemaker Depo.
p. 87, Z. Baer Affd. Ex. 9)
Babies subjected to circumcision, even with analgesia, have been known to
suffer elevated blood pressure, elevated pulse, elevated cortisol levels,
high pitch crying, all of which are indications of stress in the baby
while undergoing circumcision. Other symptoms are breath holding,
total body rigidity, vomiting, passing out, respiratory or cardiac arrest
which would all be responses to pain or stress. (Shoemaker
Depo. pp. 97-100,
Z. Baer Affd. Ex. 9) When prepared for circumcision, babies,
in their rudimentary way, communicate their objection to the procedure by
crying, drawing their legs up, vomiting and passing out. (Shoemaker
Depo. pp. 101-102, Z. Baer Affd. Ex. 9)
The standard of care for obtaining informed consent can be altered by the
State legislature which would trump medical practice. (Shoemaker
Depo. p. 53, Z. Baer Affd. Ex. 9) Dr. Shoemaker is not aware
of a law in the State of North Dakota dealing with informed consent.
(Shoemaker Depo. p. 59, Z. Baer Affd. Ex. 9; Kantak
Depo. Ex. 11, Z. Baer Affd. Ex. 5). N.D.C.C. §23-12-13.
From review of the medical records and depositions, Dr. Shoemaker believes
that when born, Josiah Flatt exhibited no indication for surgery, was in
no immediate distress, and there would be no harm in waiting until Josiah
reached age 18. The medical records indicated no complaint about the
child’s penis, and no physical finding suggested a need for surgery.
The surgical note of Dr. Kantak does not meet JCHO standards. (Shoemaker
Depo. pp. 116-117, Z. Baer Affd. Ex. 9) Performing
unnecessary surgery and billing for it is fraud. (Shoemaker
Depo. p. 122,
Z. Baer Affd. Ex. 9) In medical practice, it is frequently
taught that “if it is not documented, it was not done”. (Shoemaker
Depo. pp. 122-123, Z. Baer Affd. Ex. 9)
The Motion for Summary Judgment is so deficient on the merits to warrant
sanctions. There is an abundance of material issues of fact even
without expert testimony to warrant trial. The Defendants zealous
attempt to mislead the Court as to the issue has burdened and harassed the
Plaintiff. The Motion should be denied in all respects.
Dated: March 29, 2002
ZENAS BAER AND ASSOCIATES
Zenas Baer (#05460)
Attorney for Plaintiffs
331 6th St., Box 249
Hawley, MN 56549
Reply to Defendants'
Motion to Exclude
State of North Dakota In District Court
County of Cass East Central Judicial
Josiah Flatt by and
through his Natural
PLAINTIFF’S REPLY MEMORANDUM
Flatt and James Flatt, TO
DEFENDANTS’ MOTION TO
EXCLUDE VIDEOTAPES, SURGICAL
INSTRUMENTS, MINUTES OF
MEETINGS, AND OTHER
Sunita A. Kantak, M.D., and
Center, Court File No. CV-99-03761
Plaintiff joins in Defendants’ Memorandum seeking an Order denying
bifurcation of liability and damages. Plaintiff believes that the
issues are so intertwined, bifurcation would be prejudicial and not in
furtherance of judicial economy. The Court should not bifurcate the
issues of liability and damages, and rests on its previous Memorandum in
Broadly speaking, the Defendants have brought Motions in Limine to exclude
evidence including: videotape procedures of available alternative
methods of circumcision (Garrigus and Barichello videos); a
visual animation of a foreskin in action (Tr. Ex. 22, Z. Baer Affd.
Ex. 9); minutes of meetings of the MeritCare Pediatrics Group, MeritCare
Hospital (Tr. Ex. 18-20, Z. Baer Affd. Ex. 5-7), surgical
instruments (Tr. Ex. 3, Z. Baer Affd. Ex. 2), 33 photographs of the
natural male penis (Tr. Ex. 21, Z. Baer Affd. Ex. 8), handwritten
notes of Anita Flatt (Tr. Ex. 15, Z. Baer Affd. Ex. 4); and billing
records (Tr. Ex. 8, Z. Baer Affd. Ex. 3)
The law on admissibility of evidence has been covered in the Memorandum in
support of the introduction of the Barichello and Garrigus
videos, which is incorporated herein by reference, and will only briefly
be touched on here.
Relevant evidence is admissible. NDRE 402. “Relevant” evidence
is any testimony, drawing, photograph, design or other testimonial or
documentary evidence that will make an issue relevant to the proceeding
more probable or less probable. NDRE 401. Relevant evidence
can be excluded only if the Court finds the prejudice, confusion or waste
of time outweighs the probative value. NDRE 403.
All of the exhibits are relevant to issues in dispute in this informed
consent case. The videos are an accurate representation of the
procedure performed on Josiah Flatt and the available alternative methods
of performing circumcision. The tangible evidence aids in proving
best interests of the patient, damages, pain, and aids in judging the
credibility of the witnesses.
B. LEGAL ANALYSIS--STANDARD FOR
In an informed consent case, it is the duty of the doctor to disclose “the
available choices with respect to the proposed therapy and of the material
and known risks potentially involved in each”. Winkjer v. Herr,
277 N.W.2d 579, 587 (N.D. 1979). In North Dakota, the Courts adopt
an “objective” or “material risk” standard which is also referred to as
the “patient rule”. The test is whether the physician “disclosed all
those facts, risks and alternatives that a reasonable person in the
situation which the physician knew or should have known to be the
plaintiffs would deem
significant or material in making a decision to undergo the recommended
treatment . . .” Jaskoviak v. Gruver, 638 N.W.2d 1, 6, 7
“A patient’s right of self-determination in [a] particular therapy demands
a standard set by law for physicians rather than one which physicians may
or may not impose upon themselves.” Jaskoviak at 7, citing
Canterbury v. Spence, 464 F.2d 772 (1972), cert. denied 409 U.S. 1064.
The test for determining whether a “particular peril must be divulged is
its materiality to the patient’s decision: all risks potentially
affecting the decision must be unmasked.” Jaskoviak at 7.
In an informed consent case, a physician must disclose the general nature
of the contemplated procedure, the material risk 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 at 7,
In determining what material risks need to be disclosed, the Courts
apply a two prong test:
1. An examination of the
existence and nature of the risk and the probability of its occurrence;
2. A determination by the
trier of fact [the jury] of whether the risk is the type of harm which a
reasonable patient would consider in deciding on medical treatment.
Jaskoviak at 7,
citing Guidry v. Neu, 708 So.2d 740 (L.A. Ct. App. 1997). Whether or
not a risk is material to warrant disclosure is a function of the
“severity of the potential injury and of the likelihood it will occur”.
Jaskoviak at 7. Ultimately a trier of fact must determine whether a
reasonable person in the Plaintiff's position would attach significance to
the specific risk. Jaskoviak at 7.
C. APPLYING LAW TO EXHIBITS
Applying the law to the specific items of evidence offered, it is clear
that they are all admissible.
1. VIDEOTAPES - SURGICAL
Defendants object to the introduction of the Barichello video and
Garrigus video largely based on Dr. Kantak’s Affidavit indicating that
she uses a different technique in doing the circumcision. Although
it may be true that Dr. Kantak uses a different technique in performing
circumcisions than is depicted in the video, the technique shown in the
video does not deviate from the national standard of care. There is
nothing in Dr. Kantak’s Affidavit that suggests the physicians who are
videotaped on either the Barichello video or the Garrigus
video departed from the accepted national standard of care in performing a
circumcision using alternative surgical techniques. Only if we had a
video of Dr. Kantak performing a circumcision on Josiah Flatt would
Plaintiff be able to meet the threshold argued by Defendant. Perhaps
Dr. Kantak will invite Plaintiff to video her next circumcision, so we can
have a more accurate depiction of the procedure.
(a) National Standard of Care.
Dr. Kantak has admitted the applicable standard of care for the obtaining
of informed consent is set forth by the American Medical Association in
its March 1981 Statement. (S. Kantak Depo. pp.
104-105, and Depo. Ex. 7 and 8, Z. Baer Affd. Ex. 10) The
applicable standard for obtaining informed consent requires Dr. Kantak to
allow the patient (in this case Josiah Flatt) to make his own
determination on treatment. The standard of care states that it is
the physician’s obligation
“to present the
medical facts accurately . . . to the individual responsible for the
patient’s care and to make recommendations for management in accordance
with good medical practice. The physician has an ethical obligation
to help the patient make choices from among the therapeutic alternatives
consistent with good medical practice. Informed consent is a basic
social policy for which exceptions are permitted: (1) where the patient is
unconscious or otherwise incapable of consenting and harm from failure to
treat is imminent; or (2) when risk-disclosure poses such a serious
psychological threat of detriment to the patient as to be medically
contraindicated. Social policy does not accept the paternalistic
view that the physician may remain silent because divulgence might prompt
the patient to forego needed therapy. Rational informed patients
should not be expected to act uniformly, even under similar circumstances,
in agreeing or to refusing treatment.”
(AMA Policy Finder
E-8.08 Informed Consent issued March 1981, (bold supplied), S. Kantak
Ex. 7 and 8, Z. Baer Affd. Ex. 10).
More specifically and more to the point, Dr. Sunita Kantak, as a member of
the American Academy of Pediatrics (AAP), follows the standard
recommendations of bulletins issued by the AAP. (S. Kantak
Depo. pp. 108-109, Z. Baer Affd. Ex. 10) The AAP has issued a
policy statement on Informed Consent, Parental Permission, and Assent in
Pediatric Practice. RE9510, Pediatrics Vol. 95, No. 2, February
1995. The AAP Statement on Informed Consent is
particularly applicable in the context of circumcision. The use of
"proxy consent" according to the AAP Statement,
problems for pediatric health care providers. Such providers have
legal and ethical duties to their child patients to render competent
medical care based on what the patient needs, not what someone else
expresses. Although impasses regarding the interests of minors and
their expressed wishes of their parents or guardians are rare, the
pediatrician’s responsibilities to his or her patient exist independent of
parental desires or proxy consent.”
Parental Permission, and Assent in Pediatric Practice (RE 9510), S.
Kantak Depo. Ex. 12, Z. Baer Affd. Ex. 10) The applicable
standard in obtaining proxy consent requires an evaluation of whether or
not the surgical removal of the foreskin was based on the patient’s
[Josiah Flatt’s] need, not what their parent expresses.
Dr. Shoemaker, a defense expert, also admits that the AAP Statement (S.
Kantak Depo. Ex. 12, Z. Baer Affd. Ex. 10), is an
accurate statement of the standard of care as it pertains to informed
consent. (Shoemaker Depo. pp. 29-32, Z. Baer Affd. Ex.
11) Dr. Shoemaker goes one step further and describes the various
elements necessary for obtaining informed consent from a parent. If
a patient is an infant, a medical doctor cannot do a procedure on the
patient (the infant) “unless [Dr. Shoemaker] concluded it was in the best
interest of the child to do the procedure”. (Shoemaker Depo.
p. 31, Z. Baer Affd. Ex. 11) The elements of informed consent
would require the following:
1. Provision of
information: Patient should have explanations, in understandable
language, of the nature of the ailment or condition; the nature of
proposed diagnostic steps and/or treatment, and the probability of their
success; the existence and nature of the risks involved; and the
existence, potential benefits, and risk of recommended alternative
treatment (including the choice of no treatment).
2. Assessment of the
patient’s understanding of the above information.
3. Assessment, if only
tacit, of the capacity of the patient or surrogate, to make the necessary
4. Assurance, insofar as
possible, that the patient has the freedom to choose among the medical
alternatives without coercion or manipulation.”
Parental Permission and Assent in Pediatric Practice (RE 95-10), S.
Kantak Depo. Ex. 12, p. 2, Z. Baer Affd. Ex. 10) (Shoemaker
Depo. p. 33, Z. Baer Affd. Ex. 11)
Relevant to the Doctrine of Proxy Informed Consent is an assessment that
the parent knows the nature of the “proposed diagnostic steps and/or
treatments”. A circumcision is a specific surgical procedure
performed on healthy newborn infant males, not a procedure for therapeutic
purposes--in short it is a cosmetic procedure. One cannot call it
“elective” in the true sense because the baby does not elect to have his
Dr. Shoemaker agrees that the standard of care in the medical practice can
be modified by legislation. (Shoemaker Depo. pp. 58-59, Z.
Baer Affd. Ex. 11) Dr. Shoemaker was, at the time of the
deposition, February 27, 2002, unaware of any North Dakota law concerning
(b) Statutory Informed Consent
Remarkably, the Statements of the AAP and the AMA tract very closely the
statutory law entitled “Persons Authorized to Provide Informed Consent to
Health Care for Incapacitated Persons--Priority” (N.D.C.C. 23-12-13).
The informed consent law sets forth a system for medical
professionals to obtain “informed consent”. Section 1 deals with the
priority of individuals authorized to give “proxy consent” to an
incapacitated individual which includes an infant. Subd. 3 provides
“before any person
authorized to provide informed consent pursuant to this section exercises
that authority, the person must first determine in good faith that the
patient, if not incapacitated, would consent to the proposed health care.
If such a determination cannot be made, the decision to consent to the
proposed health care may be made only after determining that the proposed
health care is in the patient’s best interest.”
Accordingly, under North Dakota statutory law, a material issue for the
jury’s determination is whether or not Josiah Flatt, if not incapacitated,
would consent to the circumcision, or, and perhaps more importantly, was
the circumcision in the patient’s “best interests”. In order to
determine whether or not the surgery would have been consented had Josiah
Flatt been old enough to consent, the jury needs to understand the
procedure, understand what surgical equipment is used, and determine
whether or not a decision to circumcise, for no therapeutic reason, is in
Josiah Flatt’s “best interests”. A video describing the procedure is
the best teaching tool to be used.
The informed consent statute, N.D.C.C. 23-12-13, was amended during the
same legislative session as the Female Genital Mutilation Law codified at
12.1-36-01, (August 1995), was enacted. It is a felony for a medical
doctor to surgically alter healthy female genital tissue.[1
The passage of the State law banning alteration of female genitalia is,
according to Dr. Shoemaker, an example of the standard of medical practice
being altered by legislative enactment. (Shoemaker Depo. p.
Z. Baer Affd. Ex. 11)
The informed consent statute provides a legislative standard for health
care decisions to be made by an authorized person, typically the parent of
the minor child. N.D.C.C. 23-12-13(1)(a)-(i). A person
authorized to consent to health care on behalf of a minor child must first
determine that the patient, if not incapacitated, would consent to the
proposed health care. 1999 N.D. Opinion Attorney General 1, 1999
WL14712 (NDAG) at p. 3. (Z. Baer Affd. Ex. 24) In order
to determine if Josiah Flatt would consent to the procedure, Anita Flatt
must know what the procedure entails, the restraints used and the tools
used to crush the foreskin. After viewing the procedure, Plaintiff
is confident few people would consent.
(i) Best Interests of
If a determination on whether the patient would have consented to the
procedure, if not incapacitated, cannot be made, then the person
consenting to the health care must make the decision based on the “best
interest” of the patient.
Although not defined in the context of a health care decisions, “best
interests” of a child is a fairly well developed concept in the State of
North Dakota. “Best interests” of the child includes an analysis of a
number of factors. N.D.C.C. 14-09-06.2. Relevant to the circumcision
issue is a presumption of unfitness if any domestic violence is proven.
The law presumes unfitness to parent if a Court finds credible evidence
that “domestic violence” has occurred, it creates a rebuttable presumption
that a parent who has perpetrated the “domestic violence” may not be
awarded sole or joint custody of the child. The rebuttable
presumption can be overcome only by clear and convincing evidence that it
is in the child’s best interest to retain a custodial relationship.
Domestic violence is defined to be “physical harm, bodily injury, . . . or
assault . . . on the complaining family or household members.” by
In the context of circumcision, it is clear that the act of circumcision
requires the use of restraining devices (circumstraint); the use of
surgical tools including clamps capable of exerting between 8,000 and
40,000 foot pounds of pressure per square inch on the baby’s newborn
foreskin; scissors, knives and forceps. The result is the amputation
of otherwise normal, healthy tissue, without a medical diagnosis. It
causes injury, physical harm and a permanent scar. If such procedure
were performed by a parent, the parent would be criminally charged and
custody and care of the child would be denied. In short,
circumcision causes physical harm, bodily harm, and is an assault on the
infant for no therapeutic reason. Thinking, concerned and passionate
people must ask why we as a society permit such an assault on the most
vulnerable citizens by a medical community for no therapeutic reason.
The medical community is merely carrying out the uninformed and ignorant
wishes of parents.
In determining “best interests” in a custodial context, would the Court
take into consideration the one parent’s consent to unnecessary harm on an
infant, such as allowing the piercing of an infant’s ear? tongue?
nipple? navel? clitoris? foreskin? If these forms
of assault would be taken into consideration for custody determinations,
“best interests” analysis would also include the amputation of the most
erogenous tissue of the male body for no therapeutic reason, by medical
doctors who have an ethical duty to protect the baby from unnecessary
The performance of a circumcision and a video depiction of how
circumcisions are performed would be relevant to a jury to determine if
indeed the circumcision procedure was in the “best interests” of the child
as required by N.D.C.C. 23-12-13.
(c) Myth–Circumcision-“Just a
The medical community has, for decades, perhaps centuries, continued the
myth that circumcision was “just a little snip”. “Doctors Warned
on Snip Risks by Honey Webb” stated the headline of the Sydney
Morning Herald, Sydney NSW, Australia, Saturday, October 4, 1997,
warning doctors of their potential risks of negligence claims if they
failed to inform parents of all possible side effects. The warning
was issued by the Royal Melborne Institute of Technology. (Z.
Baer Affd. Ex. 20)
British Journal of Urology, 77, June 1996, p. 924, states that
circumcision is not a “simple, minor snip”, but rather a major surgery and
needs careful thought and skill to perform. (Z. Baer Affd.
Ex. 21) The British Medical Journal, Vol. 311, No. 7008 (September
23, 1995), pp. 816-817, reviewed a film produced by Jewish journalist,
Victor Schoenfeld. The reviewer stated “the myth that circumcision
is just a ‘quick snip’ and that newborns don’t feel pain anyway were
comprehensively demolished by the evidence in this generally well-balanced
documentary.” (Z. Baer Affd. Ex. 22).
Clearly, the medical profession has perpetuated the myth and convinced
many, many parents that circumcision was simply a snip of minor import.
The procedure is hidden from parents. The circumcision procedure
itself must be in all its particulars “unmasked”. Without showing
what surgical instruments are used to perform the circumcision, Plaintiff
will be unable to counter the myth that it is just a snip. The jury
will not be able to determine if a parent could reasonably believe the
procedure was in the “best interests” of the infant incapable of providing
consent, or determining whether or not the child would have made the
decision to be circumcised had he not been incapacitated by his tender
In a series of articles in the Maine Times, January 2-8, 1997, Vol.
29, No. 9, Deputy Editor Sharon Bass addressed the issue entitled
“Circumcision Persists Despite Doctors’ Disapproval”. In the
article, she quotes individuals who express the opinion “it’s not just a
little snip of skin”. The article concludes with the paragraph
“risks and pain coupled with what most agree is an unnecessary operation
drove Kenneth Baker years ago to require parents to watch a circumcision,
either videotaped or live, before he would agree to perform one on their
son. No one ever did.” (Z. Baer Affd. Ex. 23)
Since the circumcisions depicted in the videotape accurately show
physicians doing a circumcision applying the national standard using
standard surgical equipment, it is immaterial that perhaps tiny nuances in
differences in methods of performing the circumcision are prejudicial to
the Defendant. Although Dr. Kantak may indeed do some of the
procedures differently than depicted in the videotape, the result is the
same, i.e. a severed foreskin for no therapeutic reason which violates her
ethical obligation to her child patient, and violates State law inasmuch
as the performance of unnecessary surgery cannot, under any circumstances,
be deemed to be in the “best interests” of the patient, nor can there be
any determination that Josiah Flatt would have wanted the procedure had he
been able to consent.
(d) Babies Resist Circumcision.
Babies naturally resist circumcision, albeit in a nonverbal way, by
crying, screaming and wiggling. All are indicia of the child’s
expression of his intent that he does not want the procedure done.
Dr. Shoemaker testified that an infant who is strapped on a circumstraint
shows a number of indicia of stress induced reactions, including, but not
limited to, resisting the restraints; elevated blood pressure; elevated
cortisone levels; high pitched crying; breath holding; body rigidity;
vomiting; passing out; respiratory or cardiac arrest. (Shoemaker
Depo. pp. 98-99, Z. Baer Affd. Ex. 11). In order for the jury
to adequately determine whether or not the child would have consented to
the procedure had he been able to consent, or determine the issue of “best
interests” of the child, the jury must be able to visualize a circumcision
procedure that does accurately show the alternate types of procedures
available to the medical profession, and particularly show a circumcision
procedure done with the Gomco clamp. Cold Affidavit, Z.
Baer Affd. Ex. 19)
The Defendant raised the issue of lack of knowledge of how much analgesia
was used in the circumcisions performed in the Garrigus and
Barichello videos. According to the nurses who have attended
circumcisions with Dr. Kantak regularly, it is difficult to predict how
babies respond to circumcision with or without Lydocaine. Elizabeth
Mattis, a 29-year employee of MeritCare Hospital, has observed
circumcisions performed with anesthesia and without anesthesia, and states
that at times it is difficult to predict what the reaction of the baby
will be. She says “well some babies are gonna cry whether they
receive anesthesia or not.” (Mattis Depo. p. 11, Z. Baer
Affd. Ex. 12) Mattis has observed physicians doing circumcisions
without anesthesia and indicates that she cannot tell the difference in
the reaction of the babies with or without anesthesia. (Mattis
Depo. pp. 10-11, 14,
Z. Baer Affd. Ex. 12) Rita Frovarp, a Registered Nurse at
MeritCare Medical Center since 1981, indicates that based on years of
experience, that after the use of Lydocaine became standard, she could
note that “there are times babies may not cry as frequent.” She went
on to state that even babies that did not receive Lydocaine would, from
time to time, be very quiet. (Frovarp Depo. p. 39, Z. Baer
Affd. Ex.13) Roberta Engquist, a Registered Nurse at MeritCare since
1985, indicates that Dr. Nyhus, a Family Practitioner who performs
circumcisions without anesthesia (still today), does so “because he
doesn’t think it makes a difference” to use anesthesia. (Engquist
Depo. p. 20, Z. Baer Affd. Ex. 14) Florence Dreiling, a
Registered Nurse at MeritCare since 1981, indicates
Do you notice a difference in the amount of discomfort in the baby when it
is done without benefit of anesthesia as opposed to those who use
It really varies. There are some babies that it’s--it’s a baby’s
temperament. A lot of babies will cry just when you’re putting them
on the board, you know, they’re not wrapped up, they’re laid on a diaper
or blanket so it shouldn’t be cold, and--but there’s some that cry, some
p. 31, Z. Baer Affd. Ex. 15)
None of the nurses who cared for Josiah Flatt or Anita Flatt, nor Dr.
Sunita Kantak, remembers the labor, delivery or circumcision. Anita
Flatt was deprived of the opportunity to observe. Since the reaction
of babies is variable, some screaming, some not screaming, some resisting,
some quiet, the jury should be allowed to observe videotapes showing four
different children being circumcised with Lydocaine and through the use of
different tools for cutting the foreskin. The showing of a video
will not prejudice the jury, but simply give a base line to determine
damages. To deprive the jury of this evidence would allow the
Defendant to secretly perform harmful procedures on patients who would
then be precluded from showing the procedure when complaining about not
getting sufficient information to get “informed consent”. The
whole concept of informed consent is to “unmask” the risks, benefits or
alternative treatment modalities. In order to fully appreciate the
risks, the procedure must be fully explained.
According to the nurses who have been identified as witnesses who know Dr.
Sunita Kantak’s routine about giving information on circumcision to a
parent, Dr. Kantak never describes pain, just the method of controlling
pain; never describes the Plastibel procedure; never describes the Mogan
clamp procedure; does not describe embedded penis; severed penis; or
urethra fistulas as risks. (Mary Johnson Depo. pp. 33-34,
Z. Baer Affd. Ex. 16) Sherry Stoa, a Registered Nurse, in
describing the habit of Dr. Kantak in informing parents about
circumcision, indicates that Dr. Kantak distinguishes herself by going
through more “thoroughly about the mutilation thing, why--if boys, why not
girls, and the controversy of that.” (Stoa Depo. p. 41, Z.
Baer Affd. Ex. 17)
The Plaintiff would definitely agree that it would be most expeditious to
have a videotape of the circumcision of Josiah Flatt. However,
neither the nursing staff, nor Dr. Kantak, can remember any portion of the
labor, delivery or circumcision. Anita Flatt was told she could not
attend the circumcision. (A. Flatt Depo. pp. 33-34, Z.
Baer Affd. Ex. 18) Perhaps a solution would be to obtain a Court
Order allowing the videotaping of a circumcision by Sunita Kantak so that
we have proof of the procedure and how she performs the procedure.
2. VIDEO AND SURGICAL
INSTRUMENTS RELEVANT TO DAMAGES
Further relevance of the video and surgical instruments to the claims in
this case are damages. Josiah Flatt suffered pain and the permanent
loss of erogenous tissue from his body. In order to appreciate the
element of pain, it is necessary for the jury to be able to touch, feel,
and manipulate the instruments used by the medical doctors to summarily
amputate non-diseased tissue for a non-therapeutic reason. By the
nurses’ own admissions, Lydocaine used as an analgesic is not 100%
successful, even under the best of circumstances. There is no
medical doctor willing to state that babies do not feel pain as a result
of the circumcision. In order to be able to appreciate the pain, a
jury should be able to look at the surgical equipment used to perform this
procedure using Lydocaine that at best is a hit or miss proposition on
controlling short-term pain.
Similarly, the 33 photos of the intact penis are relevant to the issue of
what is lost if allowed to grow to full term. Similarly, the visual
animation of the foreskin provides reference for jury members as to the
tissue, its function and purpose, all of which is lost as a result of
None of the exhibits are in any way inflammatory. The surgical
instruments are not coated with blood but are in a sanitary sealed
condition. The circumstraint has no evidence of gore, but is just a
molded plastic circumstraint which holds the baby spreadeagle. The
loud protestations of the Defendant suggests that the procedure is indeed
barbaric and something that reasonable thinking people should be protected
from. Why? So that the medical community can continue hiding
the harm they are causing to babies? Is it to insulate parents from
the reality of what goes on behind curtains when their child is held
spreadeagle and his penis cut? Lasik patients watch a video of the
surgery as part of the information given so they can make an informed
decision--why not circumcision?
3. MINUTES OF MEETINGS.
Defendants also object to the inclusion of minutes of the MeritCare
Pediatric Group’s development of the circumcision policy. These
minutes are relevant to the issues of informed consent, credibility and
damages. Part of the issue is the date on which a newly developed
circumcision booklet was made available and prepared by the Pediatric
Group. For instance, Exhibit 18 depicts minutes of the Maternal
Newborn Joint Practice Council from December 15, 1996, which identifies as
participants Dr. Shoemaker and Dr. Kantak, describing that Dr. Shoemaker
had been selected to participate in a national committee on the task force
of circumcision, and that he was writing a new document about
circumcision, and after approval, would be distributed at “prenatal
classes, family birth center, and the intensive care nursery.” The
subsequent minutes of the Maternal Newborn Joint Practice Council of July
14, 1997, identify Dr. Shoemaker as being present and the discussion on
circumcision brochure identifying that the American Academy of Pediatrics
was revising the current statement and a new statement will be published.
The minutes suggest that the “MeritCare Brochure, written by Dr.
Shoemaker, is available to parents.” (Tr. Ex 18(a), Z. Baer
Affd. Ex. 5) Finally, on October 3, 1997, Exhibit 18(b) depicts
Maternal Newborn Joint Practice Council, of which Dr. Shoemaker is present
indicating that there is discussion about the use of buffered Lydocaine
for circumcision procedures because it causes less discomfort than using
regular Lydocaine. The admission that buffered Lydocaine causes
“less discomfort” suggests that there is and was discomfort with the use
of non-buffered Lydocaine in March 1997, when Josiah Flatt was born.
This is relevant to the issue of pain control and the issue of damages
resulting from the pain suffered by Josiah Flatt. (Tr. Ex. 18(b),
Z. Baer Affd. Ex. 5)
The Defendant also objects to the introduction of the MeritCare Department
of Pediatrics minutes. (Tr. Ex. 19, 19(a) through 19(j), Z. Baer
Affd. Ex. 6) The minutes extend from April 25, 1996, through May 16,
2001. The minutes are relevant to the issues about what the
Pediatric Group knew, when they knew it, and what information they needed
to disclose to parents. The minutes also are relevant to prove
issues of damages, including pain suffered by Josiah Flatt. They are
further relevant to the issue of credibility of when the MeritCare
brochure was made available to the patient population on a regular basis.
For instance, on April 21, 1996 (Tr. Ex.19, Z. Baer Affd. Ex. 6),
the minutes of the Department of Pediatric meeting suggests that Dr.
Miller raised concerns regarding circumcisions and the “need to develop a
better handout to give patients regarding circumcisions.”
Exhibit 19(a) depicts minutes from May 22, 1996, showing Sunita Kantak
present where Dr. Miller discusses his concern regarding parents “wanting
to watch circumcisions. It was decided that each physician will
determine what he/she is comfortable with in regards to parents observing
circumcisions.” This testimony would tend to support Anita Flatt’s
recollection of the statements by the nurses that she was not allowed to
watch the circumcision of her son. (Tr. Ex. 19(a), Z. Baer
Affd. Ex. 6) Exhibit 19(b) are the minutes from the June 19, 1996
meeting showing the issue of circumcision being tabled. Sunita
Kantak was present during that discussion. (Tr. Ex. 19(b), Z.
Baer Affd. Ex. 6) Exhibit 19(c) depicts the minutes from the
July 17, 1996 physician meetings at which, again, under old business, the
discussion of circumcision was tabled. (Tr. Ex. 19(c), Z. Baer
Affd. Ex. 6)
Exhibit 19(d) from August 21, 1996, identifies under new business that Dr.
Miller shared his concerns with regard to circumcision preparation for
parents. “Dr. Shoemaker will work on putting together a pamphlet
discussing circumcisions and the payment plan involved with this
procedure.” Minutes of the meeting from August 21, 1996, would
suggest that the physicians’ own group, in the presence of Sunita Kantak,
raised concerns regarding lack of preparation for parents before agreeing
to circumcise their infant babies. (Tr. Ex. 19(d), Z. Baer
Affd. Ex. 6)
Exhibit 19(e) are Department of Pediatrics minutes from September 11,
1996, at which Sunita Kantak was present. Under old business, the
minutes suggest that Dr. Shoemaker is working on completing the
circumcision pamphlet which would be sent around through the Department
for approval before the next meeting. (Tr. Ex. 19(e), Z. Baer
Affd. Ex. 6)
Exhibit 19(f) are the minutes from October 16, 1996, which discuss
circumcision and the request by Dr. Shoemaker for their opinions on the
circumcision handout he had written for parents of newborn boys. The
minutes suggest that Dr. Shoemaker would make revisions and present it
before the group again for input. (Tr. Ex. 19(f), Z. Baer
Affd. Ex. 6)
Exhibit 19(g) reflect minutes of the physicians’ meeting of November 6,
1996, where circumcision was discussed suggesting that Dr. Shoemaker had
sent his letter in to be written in lay terms for patient use. (Tr.
Z. Baer Affd. Ex. 6)
Exhibit 19(h) are the Pediatric Department minutes from December 1996, at
which Sunita Kantak was present indicating under old business that the
circumcision brochure is ready to go to print, 1500 copies will be printed
and distributed. It is written in a low reading level. (Tr.
Z. Baer Affd. Ex. 6)
Plaintiffs were not
provided any meeting minutes of the Pediatric Department following
December 18, 1996, until the next minutes dated November 15, 2000.
There is nothing in the Department minutes suggesting that the minutes of
December 18, 1996 were ever approved, or that the brochure was ever
MeritCare Clinic has produced a brochure which has as an initial
publication date 12-96, and a revision date 1-97. (Kantak
Depo. Ex. 2, Z. Baer Affd. Ex. 10) There is nothing in the
minutes of the Pediatrics Department suggesting a review of the revision
of the circumcision pamphlet.
Anita Flatt has testified that she did not receive literature from anyone
at MeritCare about circumcision and denies ever receiving a copy of the
pamphlet identified as “Should Your Child Be Circumcised?” (A.
Flatt Depo. p. 47, Z. Baer Affd. Ex. 18) On the other
hand, MeritCare nurses will testify that the common procedure used is to
distribute the brochure when the pediatrician on call does rounds.
Squarely at issue is the issue of whether or not Anita Flatt obtained a
copy of the brochure. If the brochure had not been put into
circulation, which we contend is a reasonable inference that could be
drawn from the closeness in time from the development of the brochure to
the birth of Josiah Flatt, the minutes of the meeting showing the
development of the brochure is highly relevant. The documents also
come in for impeachment purposes allowing the finder of fact to determine
whether or not the brochure was in fact distributed to Anita Flatt.
Nurse Sherry Stoa, who has been at MeritCare for 21 years, says as far
back as she can remember, the pediatricians have handed out the
circumcision booklet. (Stoa Depo. pp. 24-27, Z. Baer
Affd. Ex. 17) The minutes of the Pediatric Group suggest otherwise
The next minutes of
the Pediatric Department meeting provided to Plaintiff was November 15,
2000, attended by Sunita Kantak where the discussion is concerning
out-patient circumcisions. The conclusion portion of the minutes
indicate “a parent’s signature is required and the regular surgical
consent form may be used. Lack of consent creates a problem.”
The discussion by the Pediatrics Group indicating that “lack of consent to
perform a circumcision creates a problem” allows a reasonable inference
that the medical community still was rather lax about obtaining consent,
let alone informed consent, from parents who desire to have the physicians
surgically alter their son’s genitalia. The final minutes of the
Pediatric Department meeting are from May 16, 2001. (Tr. Ex. 19(j), Z.
Baer Affd. Ex. 6). Dr. Sunita Kantak is identified as having
been absent from that meeting. Exhibit 19(j) shows further
discussion about circumcisions, and how the hospital can save money by
discharging newborns and parents as soon as they are well. The
suggestion is to complete circumcisions by 10:00 a.m.
The final series of minutes are from MeritCare Hospital Department of
Pediatrics. Beginning on January 24, 1996 (Tr. Ex. 20, Z. Baer
Affd. Ex. 7), the MeritCare Hospital Department of Pediatrics discusses
circumcision policy and received a report from Dr. Welle regarding
Medicaid patients. The conclusion by the hospital is that performing
circumcisions on Medicaid patients results in “no financial loss to the
hospital for performance of circumcisions”. The action of the
Department of Pediatrics as identified in the minutes is “due to the
minimal time commitment for performance of circumcision and lack of
significant financial issues, no change will be made to in-patient
circumcision policy at this time.” These minutes were signed by the
Chairperson of the Department of Pediatrics, Craig T. Shoemaker, M.D.
The minutes are relevant to the extent that they show the persistence of
circumcision is perpetuated by positive economic import to the medical
institution, not based on medical need or best interest of the baby.
In April 1996, the Department of Pediatrics MeritCare Hospital met again.
(Tr. Ex. 20(a), Z. Baer Affd. Ex. 7). The minutes state that
in April 1996, there was “the need for a circumcision policy statement.”
The action taken was “the FBC Joint Practice Council will be asked to
develop a statement regarding the risks and benefits of circumcision.”
The minutes do not say develop a new statement regarding risks and
benefits of circumcision. It says to develop a statement regarding
risks and benefits of circumcision. Prior to April of 1996, an
inference could be drawn that there was no brochure identifying the risks
and benefits of circumcision.
The last minutes of the Department of Pediatrics addressing circumcision
provided by Plaintiff was November 19, 1997. (Tr. Ex. 20(b), Z.
Baer Affd. Ex. 7) The sole reference is “circumcision task force
met in New Orleans”. Nothing further was identified. All of
these minutes are probative to the issue of judging the credibility of the
doctors and nurses in their statement that the circumcision brochure
developed by the hospital was given to Anita Flatt. Anita Flatt
indicates she never received the brochure. A reasonable inference
could be drawn by the timing of the development of the brochure that it in
fact was not prepared for distribution until a later date.
4. HANDWRITTEN NOTES,
In addition, the Defendants are seeking to exclude a series of documents
identified as Exhibit 15, 15(a) through 15(i). (Z. Baer Affd.
Ex. 4) These are handwritten notes by Anita Flatt, post-it notes,
scraps of paper or reimbursement forms, documenting conversations with
hospital and medical personnel involving billing, complaints about
asymmetry of the surgical procedure, and complaints about the doctor not
being present during the delivery. One of the issues in this case is
whether or not Anita Flatt was given a brochure or brochures at the time
of her hospitalization. The hospital contends she was given the
brochure. Anita Flatt contends she was not. Anita Flatt
contends she saved all of the documents she received and even the notes
upon which she wrote comments about conversations with the hospital
administration regarding her concerns. The evidence identified in
Exhibit 15 and its subparts would tend to show that Anita Flatt is indeed
a packrat and collected and saved all of the documents that she received
during her stay at MeritCare Hospital. Those documents are relevant
to the issues of credibility and weight to be given to the testimony of
the parties in this case.
For all the above reasons, the Court should allow the introduction of the
videos, surgical equipment, department minutes, and photos of the natural
penis to allow this jury to evaluate if the circumcision procedure was
truly “unmasked” before the cutting took place.
Dated: January 15, 2003
ZENAS BAER AND ASSOCIATES
Zenas Baer (#05460)
Attorney for Plaintiffs
331 6th St., Box 249
Hawley, MN 56549
[1 back to text] The
constitutionality of this statute has been challenged in the underlying
litigation. An appeal following final judgment will be forthcoming.
Order on Motions in
Limine, pdf file.
Judge Cynthia Rothe-Seeger denies of the use of video tapes and surgical
instruments in court proceedings.