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Flatt vs. Kantak 3
Kaplan Deposition on Informed Consent

Flatt v. Kantak--Legal    Flatt v. Kantak--Day by Day    Relevant Statutes
   
         

Link to other depositions:
Craig Shoemaker's Deposition

The case of Flatt v. Kantak continued here, page 4



DEPOSITION OF GEORGE KAPLAN, M.D.

(Pages 1 through 155
TUESDAY, FEBRUARY 26, 2002
SAN DIEGO, CALIFORNIA

Reported by:

KARLA MEYER BAEZ
CSR No. 4506, RPR-CRR

George Kaplan, M.D. - 2/26/02

1 Deposition of GEORGE KAPLAN, M.D., the
2 witness, taken on behalf of the Plaintiff, on Tuesday,
3 February 26, 2002, commencing at 1:04 p.m., at 7930
4 Frost Street, Suite 407, San Diego, California, before
5 Karla Meyer Baez, CSR No. 4506.
6
7 APPEARANCES OF COUNSEL
8 FOR PLAINTIFFS:
9 ZENAS BAER & ASSOCIATES
BY: ZENAS BAER
10 331 6th Street
Hawley, Minnesota 56549
11 (218) 483-3372

12
13 FOR DEFENDANTS:
14 VOGEL LAW FIRM
BY: JANE E. VOGLEWEDE
15 502 First Avenue North
Fargo, North Dakota 58107
16 (701) 237-6983
17
18
19
ASAP COURT REPORTING, INC. (800) 490-6587
George Kaplan, M.D. - 2/26/02

1 I N D E X

2 WITNESS EXAMINATION PAGE
3 GEORGE KAPLAN, M.D.
4 BY MR. BAER 4
5

6 INDEX OF EXHIBITS

7 NO. PAGE DESCRIPTION

8 1 8 Circumcision Policy Statement

9 2 8 Pamphlet "Should Your Infant Boy Be
Circumcised"
10
3 8 Handwritten progress notes 3/7/97
11
5 8 Consent for Surgery, Special Procedure,
12 and Anesthesia

13 6 8 Policy and Procedure, Circumcisions

14 7 8 Model Circumcision Informed Consent Form

15 8 8 E-8.08 Informed Consent

16 9 8 Policy Statement, AAP, RE9749

17 11 8 North Dakota Code Title 23

18 12 8 AAP Policy Statement, Informed Consent E9510

19 13 8 H-60.945 Neonatal Circumcision

20 14 8 "Complications of Circumcision," Kaplan

21 15 8 MeritCare Kantak charges

22 16 8 "Circumcision Debate"

23 17 8 "Spence on Circumcision"

24 18 142 Kaplan Curriculum Vitae

25

3

1 SAN DIEGO, CALIFORNIA; TUESDAY, FEBRUARY 26, 2002
2 1:04 P.M.
3 GEORGE KAPLAN, M.D.,
4 having been first duly sworn by the Certified
5 Shorthand Reporter, testified as follows:
6 MR. BAER: This is the time and date noted
7 for the taking of the deposition of Dr. George Kaplan
8 for all purposes under the North Dakota Rules of Civil
9 Procedure.
10 EXAMINATION
11 BY MR. BAER:
12 Q. Could you please identify yourself for the
13 record and give us your address.
14 A. George W. Kaplan, K-A-P-L-A-N, 7930 Frost
15 Street, San Diego, California.
16 Q. And how long have you been in practice, Dr.
17 Kaplan?
18 A. I've been in practice in San Diego since
19 1969, which makes that 32 and a half years, and I was in
20 practice for a year before that in Chicago.
21 Q. I did receive a copy of a curriculum vitae
22 from counsel for the Defendant, Ms. Voglewede, and I
23 just want to show that to you, and can you tell me
24 whether that's an updated CV?
25 A. I know that it isn't, because --

4

1 Q. You have additional --
2 A. There are some additional things that --
3 Q. Okay. You'll be getting us a copy of that?
4 A. Yes. That's what you're getting a copy of.
5 Q. And I identified in the notice to take
6 deposition that I wanted to see your entire file.
7 Have you brought that with you today?
8 A. Yes, I have.
9 Q. Could I just take a moment to look at that?
10 A. Sure.
11 Q. The videotape is a videotape you received I
12 take it from the defense counsel?
13 A. Yes.
14 Q. Have you looked at it?
15 A. Yes, I have.
16 Q. All the way through?
17 A. I think it's only about five minutes long, as
18 I remember.
19 MR. BAER: Did you edit it?
20 MS. VOGLEWEDE: It's just the one segment
21 that shows the penis. That's all that's on it.
22 MR. BAER: Okay.
23 Q. Okay. And --
24 A. Those are my notes.
25 Q. These are your notes?

5
1 A. Yes.
2 Q. Okay. I have now had an opportunity to look
3 through what you have provided in response to the notice
4 to take deposition duces tecum.
5 Is this the entirety of the documents you
6 have reviewed to form any opinions about this case?
7 A. Yes, it is.
8 Q. And have you personally visited with Dr.
9 Kantak?
10 A. No, I have not.
11 Q. How about Dr. Shoemaker?
12 A. With regard to this case or --
13 Q. Yes.
14 A. No.
15 Q. You did, of course, visit with him when you
16 served on the committee together, correct?
17 A. Correct.
18 Q. How about Dr. Van Howe?
19 A. No.
20 Q. At the committee?
21 A. He was there.
22 Q. How about Dr. Cole?
23 A. No.
24 Q. How about Dr. Lunn? He is another one of the
25 experts called by the Defendants.

6

1 A. No.
2 Q. Have you talked to any of the nurses whose
3 depositions you apparently have reviewed?
4 A. No.
5 Q. Do you have children?
6 A. Yes, I do.
7 Q. Do you have boys?
8 A. One.
9 Q. Is he circumcised?
10 MS. VOGLEWEDE: I'm going to object to that
11 as an inappropriate and personal question. I'll leave
12 it up to Dr. Kaplan whether he wishes to answer.
13 A. I don't have a problem with it. Yes, he is.
14 BY MR. BAER:
15 Q. You've just handed me a copy of your updated
16 CV.
17 A. Correct.
18 Q. Is that right?
19 A. That's correct.
20 Q. And that is current as of today?
21 A. As of two days ago, yes.
22 MR. BAER: And I don't need this marked as an
23 exhibit. I'll just keep this one, if that's okay with
24 you, unless you want it marked.
25 MS. VOGLEWEDE: I don't have one; so if you
26
7

1 have it marked, I'll get a copy.
2 (Deposition Exhibits 1 through 3, 5 through
3 9, and 11 through 17 were marked for
4 identification)
5 MR. BAER: Okay. I have some exhibits marked
6 already, so I want to -- I'll reserve that to mark it at
7 the end.
8 Q. Okay?
9 A. Okay.
10 Q. Dr. Kaplan, I just wanted to go through some
11 of the articles you've written, and you've written quite
12 a monument of documents and articles over your career,
13 very distinguished career, I might add; and I just
14 wanted to go over some of the articles, and I'm just
15 going from the number on your CV, and I'll identify it
16 as that.
17 The one article you wrote was about acute
18 idiopathic scrotal edema. That is an article appearing
19 in the Journal of Pediatric Surgery in October of 1977,
20 Volume 12, number 5?
21 A. Right.
22 Q. And it looks as though it is authored by you
23 individually.
24 A. That's correct.
25 Q. Could you tell me what the protocol is in

8

1 publishing articles? Does the lead author get mentioned
2 first and then other authors in the string of authors
3 or --
4 A. There are several different protocols that
5 have been utilized. The current one, I think the one
6 that most people currently adhere to, is the first
7 author is generally the person who did the bulk of the
8 work and very often the person whose idea it was,
9 although that isn't always true.
10 The last author is usually the senior author.
11 In an academic institution that may be the department
12 chair or that sort of thing, who had something to do
13 with the article but not necessarily everything.
14 And then the authors in between are listed
15 with variable protocols, if you will. Sometimes it's
16 the second author did the second most and the third
17 author did the third most. Other times it's
18 alphabetically. There are all manner of things.
19 Q. When you use the term "senior author" as
20 being listed last, does that mean senior in just
21 chronological age or in experience or a combination?
22 A. It's usually a combination. It's -- it
23 doesn't necessarily have to do with age, as much as
24 experience and academic rank.
25 Q. And in this article where you describe acute

9

1 idiopathic scrotal edema, the point that I found in that
2 article that I thought was relevant was that you
3 discovered that there was a need to differentiate acute
4 idiopathic scrotal edema from the testicular torsion --
5 A. Correct.
6 Q. -- to prevent invasive surgery on a child
7 when they did not need that invasive surgery. Is
8 that -- am I summarizing it correctly?
9 A. More or less, yes.
10 Q. Is that what you try to do as a urologist,
11 try to give as much information as possible to your
12 peers to diagnose conditions to prevent unnecessary
13 surgeries from taking place?
14 A. Not quite. I think that's a bit of a
15 mischaracterization. I think all of medicine is
16 evolving, if you will, and sometimes observations are
17 made that when studied can improve the care of patients
18 in the future, and I think this falls into that
19 category.
20 It was noticed that there are some children
21 who have what at first blush appears to be a surgical
22 emergency but there are ways to differentiate it, and
23 actually today there are even better ways to
24 differentiate it, and therefore you might be able to
25 avoid an unnecessary operation.

10

1 Q. That's precisely it, is that what you wanted
2 to do is to give more tools to your fellow practitioners
3 to avoid an unnecessary operation with good diagnosis?
4 A. Well, let's say an operation that would be
5 a -- I guess that -- I'll let you handle it the way you
6 characterized it.
7 Q. Because if you had the scrotal explorations
8 in doing the torsion release, there is some morbidity
9 and mortality that is associated with that surgical
10 procedure, and if you can prevent that surgical
11 procedure you can prevent that sort of risk-taking?
12 A. Is that a question?
13 Q. Yes. Is that right?
14 A. Could you rephrase -- or repeat the question,
15 please?
16 Q. Sure. What you're trying to do is prevent
17 the need for scrotal exploration by proper diagnosis,
18 and you want to prevent that surgical operation because
19 there is morbidity and mortality associated with that
20 operation; isn't that right?
21 A. I think a better way to say that might be
22 that you would like to do the proper operation for the
23 proper indication to optimize the outcome for the
24 patient.
25 Q. And if you have a condition, acute idiopathic

11

ASAP COURT REPORTING, INC. (800) 490-6587
George Kaplan, M.D. - 2/26/02

1 scrotal edema, there is no proper operation to treat
2 that, is there?
3 A. That's correct.
4 Q. The next article that you wrote that -- these
5 are in no particular order, by the way; I just pulled
6 these off -- is an article again by yourself entitled
7 Malpractice Risks for Urologists from the 1998 Elsevere
8 Science, Inc., Special Communication. I don't know what
9 publication it was in.
10 A. It was in the -- the name of the Journal of
11 Urology.
12 Q. You're familiar with that article?
13 A. Yes, I am.
14 Q. And the article talks about malpractice
15 affect -- malpractice lawsuits and their affect on
16 individual medical practice; is that right?
17 A. I was quoting someone else; but, yes, that's
18 true.
19 Q. And you likened it to -- that it appears in
20 your observations is that when a doctor is sued for
21 malpractice, the doctor takes it as a personal affront
22 to their integrity?
23 A. That's partially true, because again I'm --
24 I'm quoting someone else, but --
25 Q. Who are you quoting?

12

1 A. It's -- I have to look. Actually that's
2 fairly much common knowledge, but I'm quoting -- can I
3 see the references, please?
4 MR. BAER: Oh, sure.
5 A. It's -- wait a minute. It's Dr. Passano in
6 this audio tape from Harvard Risk Management who's
7 talking about the impact of being sued.
8 BY MR. BAER:
9 Q. Well, you attributed it to Charles S. That's
10 right, it is a -- the impact of being sued resource,
11 and -- but it's your words. It's a sentence that has --
12 A. I understand.
13 Q. You were stating it as though you were
14 adopting that as your experience as well.
15 A. I believe that at least among the medical
16 profession that would be considered common knowledge.
17 Q. And just so that there is no doubt about what
18 that would be, it is the statement most practitioners
19 consider a suit to be a personal attack upon their
20 character, integrity, and ability and an event of which
21 to be ashamed.
22 A. That's correct.
23 Q. And you likened it to a young pubescent boy
24 who is a bedwetter, right?
25 A. Yes.
13

1 Q. That there is some shame associated with it,
2 and the way to work out of that shame is to go into
3 discussions; but the legal profession says no, don't
4 talk about it; and it put the medical doctor in sort of
5 an isolated, alone sort of situation?
6 A. That's correct.
7 Q. You also concluded, did you not, that in your
8 experience there was no real correlation between bad
9 apples in the medical profession and incidents of
10 malpractice suits, right?
11 A. That was based on the data that I obtained,
12 that's true.
13 Q. But that's what this article --
14 A. Yes, right.
15 Q. -- concludes?
16 A. Right.
17 Q. So just because a medical doctor has never
18 had a malpractice suit filed against them, you can't
19 conclude that they are good doctors or bad doctors, can
20 you?
21 A. No, you can't.
22 Q. The next article that caught my attention was
23 the article -- it was a review -- again, I think it's in
24 Urology, sex assignment in cases of ambiguous genitalia
25 and its outcome. It's from, looks like, 2000 Urology,

14

1 55:8-12, and it's on page 11 where you talk about the
2 different theories of sex assignment.
3 There is one camp that says if you have a
4 child born with ambiguous genitalia, a decision should
5 be made at infancy or very young to reassign the gender
6 of that child.
7 There is another camp that says you should
8 wait, most of the sexuality of a person is in the brain,
9 and you should wait until that child develops to be able
10 to determine whether or not it's going to be a he or a
11 she from a personality standpoint.
12 Is that a fair summary?
13 A. Not quite. First of all, in the first part
14 of that you said reassign, and that's not -- that camp
15 would say "assign," because -- and there is a difference
16 between the two implications.
17 In the -- and in the second part, again, I
18 think that mischaracterizes it a little bit, in that
19 part of the -- part of the group that feels that
20 assignment early on is important feels that much of our
21 development of sexuality, be it male or female, is
22 learned behavior based upon how we're approached.
23 So it's not -- the second camp really says,
24 no, just leave the -- and this is a newer thought, but
25 leave the patient alone, let them decide when they are

15

1 old enough.
2 Q. And the point about this article that struck
3 me was your discussion near the conclusion of the
4 article dealing with reasons for sex assignment surgery
5 being done, and one was phallic trauma, and your
6 observation there was that there is a small group of
7 boys who have sustained traumatic injury to the penis
8 early in childhood, usually as a result of a
9 complication of circumcision.
10 You remember writing that?
11 A. Yes.
12 Q. And that is one of the risks of circumcision,
13 is it not?
14 A. Yes.
15 Q. And most of these surgical interventions
16 after traumatic amputation of the penis as a result of a
17 failed circumcision end up reassigning sex, do they not?
18 A. That I think is a mischaracterization.
19 Actually the data is not totally clear. There are case
20 reports, there are a small series of boys who were
21 reassigned.
22 Again, this is an area where medical thought
23 is evolving, and there is some data currently available
24 that says that may not have been the best practice, but
25 it was thought to be the best practice at the time that

16

1 it was done.
2 Q. Okay. Was this in specific reference to the
3 John Joan John case?
4 A. That's one of the group, but there are others
5 in which these kinds of catastrophes occurred.
6 Q. And I guess the point that I -- that's
7 relevant to this case is that it is -- a recognized risk
8 of circumcision is the traumatic amputation of the
9 entire penal shaft?
10 A. No, that's not true.
11 Q. That's not --
12 A. As far as I know, that actually has never
13 happened.
14 These -- most of these were lost as the
15 result of burns or severe infections but not -- not an
16 amputation.
17 Q. Perhaps I misstated it. It was -- in the
18 John Joan John, it was cauterization that caused the --
19 A. That's the burn.
20 Q. -- essentially burning of the penal shaft?
21 A. Correct.
22 Q. Maybe traumatic amputation was bad
23 terminology, but it was a medical intervention that
24 caused the lack of a penal shaft?
25 A. That I would agree.

17

1 Q. The next article that you wrote dealt with a
2 letter to the editor from 1998, and it's to the Journal
3 of Urology published at 159:509-511, 1998; and it is i

4 regard to subspecialization, recruitment, and retirement
5 trends of American urologists --
6 A. Right.
7 Q. -- an article, and you wrote a letter to the
8 editor in response to that article, I presume?
9 A. No, actually I wrote the article, if we are
10 talking about the same --
11 Q. Well, there is a --
12 A. Maybe I should just show you. You're
13 correct. I'm sorry.
14 Q. You wrote the letter?
15 A. I wrote -- in this instance I wrote the
16 letter. There is another one where I wrote an article
17 and then --
18 Q. Sure.
19 A. -- wrote a response to a letter. I'm sorry.
20 Q. But in this instance regarding
21 subspecialization of urologists, you wrote a letter to
22 the editor, as I understand it, in response to an
23 article that was essentially saying we don't need any
24 more subspecializations in urology?
25 A. That's right.

18

1 Q. You argued that, yes, there is a need for
2 subspecialization, particularly with regard to pediatric
3 urology?
4 A. Yes, I did.
5 Q. And did you say that -- in the article that
6 physicians as a group are resistant to change?
7 A. Yes.
8 Q. You still believe that?
9 A. Yes, I do.
10 Q. Have they been essentially resistant to
11 change since you've been in practice?
12 A. I think since time immemorial.
13 Q. Then you use as an example one way, to
14 consider the separation of urology from general surgery,
15 delineation of vascular and pediatric surgery as
16 subspecialty disciplines and evolution of thoracic
17 surgery as a distinct entity. I take it those are
18 examples of how subspecialties have been allowed to
19 creep into mainstream medical practice?
20 A. No. Those are examples of boards, actually,
21 or sub-boards that have been created, which is what this
22 article and response were about.
23 And in -- when urology separated from general
24 surgery in the mid 1930's, general surgeons vociferously
25 opposed it.

19

1 When cardiothoracic surgery separated from
2 general surgery, it was vociferously opposed.
3 When vascular surgery became a sub-board, it
4 was opposed.
5 When pediatric surgery became a sub-board, it
6 was opposed.
7 Q. That's what I was referring to. Maybe I just
8 asked a real bad question, Dr. Kaplan.
9 What you're saying here is that examples of
10 this sort of conflict are the creation of the sub-boards
11 that you list here?
12 A. Right. Correct.
13 Q. What you're saying is that these were all
14 opposed by mainstream medicine, and mainstream medicine
15 used arguments that it will give you a competitive
16 advantage, the sub-board a competitive advantage?
17 A. That was one of the arguments.
18 Q. It will make noncertified members of that
19 board more susceptible to lawsuits?
20 A. That's a newer argument, but...
21 Q. It was advanced?
22 A. Right. Yes.
23 Q. And what you said is that you've been unable
24 to find any literature to support your thesis that
25 certification or subspecialty certification leads to

20

1 improved results. Do you believe that?
2 A. I didn't say that.
3 Q. Well, that's --
4 A. Certification specifically, I'm sorry, that's
5 true. But there is certainly ample data, as I think I
6 went on to point out there, to show that increased
7 experience does lead to improved result.
8 Q. But increased experience is not necessarily
9 being a member of a subspecialty board?
10 A. No. But generally if one is certified in a
11 subspecialty, one will concentrate their practice in
12 that area and therefore will have increased experience.
13 Q. You're not suggesting, are you, Dr. Kaplan,
14 that you're any less experienced because you don't have
15 the subspecialty of pediatric urology than you are as a
16 person with your wealth of knowledge, are you?
17 MS. VOGLEWEDE: I'll object to the question.
18 It's confusing and vague.
19 MR. BAER: That it might be. I'll grant you
20 that one.
21 Q. You're not suggesting, Dr. Kaplan, are you,
22 that you are less qualified because you don't have
23 behind your name a subspecialty designation?
24 A. No, I'm not, but I am -- but it becomes
25 difficult for the average person to know whether or not

21

1 I have that experience without that subspecialty
2 certification, and that's what I was addressing.
3 Q. Okay. All right. Now, I noticed in all of
4 the articles that I have been able to read that you
5 authored and all of the literature I've been referred to
6 there does not appear to be a statement by urologists
7 about routine infant circumcision.
8 Has the American -- what is it -- the
9 American Academy of Urologists, or what is it?
10 A. American Urologic Association.
11 Q. Has the American Urologic Association taken a
12 stand on routine infant circumcision?
13 A. An official stand?
14 Q. Yes.
15 A. To the best of my knowledge, no.
16 Q. And as a urologist, you are surgeons first,
17 right?
18 A. Actually urology is a mixture of medical and
19 surgical specialty; but, yes, it is a surgical
20 discipline.
21 Q. You just described how urology broke off from
22 surgery --
23 A. Right.
24 Q. -- the board of surgery. So I would assume
25 that you are a surgical -- defined as a surgical

22

1 specialty?
2 A. We are, but there is -- there are many
3 medical aspects to the specialty.
4 Q. The -- as a urologist, your specialty is the
5 genital urinary tract?
6 A. Largely, yes.
7 Q. What organs does that include?
8 A. Well, generally the kidney, the ureters, the
9 bladder, the urethra, the male genitalia, internal and
10 external genitalia, often the adrenal glands, because
11 they sit right on top of the kidneys, and in pediatric
12 urology, often by default, problems associated with the
13 female genitalia, both internal and external.
14 Q. But it is -- I mean your discipline is the
15 one that is the specialty in the male external
16 genitalia?
17 A. Yes.
18 Q. And as I understand it, the American Board of
19 Urology -- what is the actual name, so I don't --
20 A. American Board of Urology is -- the American
21 Board of Urology, but that's --
22 Q. What is your society called?
23 A. The American Urological Association.
24 Q. It's called AUA?
25 A. Correct.

23

1 Q. AUA has not taken a stand on routine infant
2 circumcision?
3 A. That's correct.
4 Q. It does not recommend it as a prophylactic
5 procedure, does it?
6 A. Not as an official statement of the body.
7 Q. To your knowledge, have there been efforts to
8 have the American Urologic Association adopt an official
9 statement of the body?
10 A. Not to the best of my knowledge.
11 Q. And you've been a member of that discipline
12 since 1969 when you began practice?
13 A. When I became a member of the American
14 Urologic Association in 19 -- about 1973, I would
15 assume, because you have to be board certified and jump
16 through a couple of other hoops before you can do that,
17 but...
18 Q. And since 1973, to your knowledge, there has
19 been no effort by the American Urologic Association to
20 push for adopting a stance that routine infant
21 circumcision should be advised for everyone?
22 A. No.
23 Q. The next article that came to my attention
24 was an article you wrote in -- back in 1983, and this is
25 called Complications of Circumcision. It appears to be

24

1 from Urologic Clinics of North America, Volume 10,
2 number 3, pages 543 to 549, August of 1983. Is that
3 right?
4 A. Yes. I -- I mean I wrote the article. I'll
5 accept the citation.
6 Q. All right. Is the substance of the article,
7 even though it is from 1983, still valid as to the types
8 of complications that can be expected from circumcision?
9 A. Yes, I think that's true.
10 Q. And the penal development portion of the
11 article, even though it is from 1983, that hasn't
12 changed, has it?
13 A. No.
14 Q. And there hasn't been any earth-shattering
15 research that suggests your take on penal development or
16 the Urologic Society's take on penal development in 1983
17 was any different than it is now?
18 A. I can't think of anything offhand that would
19 fall into that category.
20 Q. It still is as a fetus the genitalia are
21 really -- they are undifferentiated between male or
22 female until, what, about seven or eight weeks?
23 A. Yes, actually a little later, yes.
24 Q. And the same bundle of nerves or cells, shall
25 we say, when bombarded with certain hormones will either

25

1 create a phallus for the male genitalia or the vaginal
2 vulva opening for the female?
3 A. It may be more complex than just hormone,
4 but...
5 Q. But...?
6 A. But, yes, we diverge.
7 Q. What makes us male and female is what makes
8 those structures which are undifferentiated until that
9 time diverge into male genitalia and female genitalia?
10 A. That's correct.
11 Q. I note on the second page of your article you
12 talk about the -- what I want to call a bad practice of
13 practitioners retracting a foreskin on an infant.
14 A. Yes.
15 Q. And that is something that has been going on
16 in the medical community for a long time, hasn't it?
17 A. I don't know how long it's been going on. I
18 don't -- it doesn't seem to go on in certain other
19 countries. It is a practice that has occurred in this
20 country. I think it's becoming much less common than it
21 was.
22 Q. Why is retraction bad?
23 A. First of all, you don't need to do it. It
24 was being done in the mistaken belief that that would
25 hasten retractability of the foreskin.

26

1 Secondly, it's usually painful.
2 And, thirdly, at least in some instances it
3 can lead to some scaring, which will defeat your purpose
4 and prevent retractability of the foreskin.
5 Q. Do you know how it became understood in the
6 general medical practice that retraction was the
7 standard of practice?
8 A. This is pure speculation on my part, but I
9 suspect that it was the fact that many physicians in
10 this country were not familiar with the natural
11 evolution of the foreskin and mistakenly believed that
12 this was something that was beneficial.
13 Q. Didn't you at least in one of your articles
14 cite with approval the letter from 1950, I think,
15 reprinted in the Lancet Journal about the reason you
16 should not retract?
17 A. Is that Mr. Spence's letter.
18 Q. Spence's letter, yes, Exhibit 17. I want to
19 show you that.
20 A. Yes, I cited that.
21 Q. And do you agree with the statement -- and I
22 just want to read this so that we can understand what
23 he's saying, and I want to make sure that I understand
24 it's correct.
25 "Your patient CD, approximately 7 months, has

27

1 the prepuce with which he was born. You ask me, with a
2 note of persuasion in your question, if it should be
3 excised. Am I to make this decision on scientific
4 grounds or am I to acquiesce in a ritual which took its
5 origin at the behest of that arch-sanitarian, Moses?
6 "If you can show good reason why a ritual
7 designed to ease the penalties of concupiscence amidst
8 the sand and flies of the Syrian deserts should be
9 continued in this England of clean bed-linen and lesser
10 opportunity, I shall listen to your argument; but if you
11 base your argument on anatomical faults, then I must
12 refute it. The anatomists have never studied the form
13 of evolution of preputial orifice. They do not
14 understand that nature does not intend it to be
15 stretched and retracted in the Temples of the Welfare
16 Centres or ritually removed in the precincts of the
17 operating theatres. Retract the prepuce, and you see a
18 pinpoint opening, but draw it forward and you see a
19 channel wide enough for all the purposes for which the
20 infant needs the organ at that early age.
21 "What looks like a pinpoint opening at 7
22 months will become a wide channel of communication at
23 17.
24 "Nature is a possessive mistress, and
25 whatever mistake she makes about the structure of the

28

1 less essential organs, such as the brain and stomach, in
2 which she is not much interested, you can be sure that
3 she knows best about the genital organs.
4 "Sir James Spence, Newcastle-upon-Tyne."
5 Does that capsulate your thought also on the
6 foreskin and how it has been misunderstood over the
7 years?
8 A. In part.
9 Q. Would you agree that foreskin is not to be
10 stretched or retracted under any circumstances except by
11 the child themselves?
12 A. No, I don't think I could agree to that.
13 Q. Tell me why?
14 A. Well, there are -- there are some instances
15 where there is infection under the foreskin and the
16 prepusal opening is small enough that basically it's
17 causing a cellulitis, and so it might be helpful to
18 drain that. That would be --
19 Q. There is a medical reason?
20 A. Right.
21 Q. What you're talking about is medical reasons?
22 MS. VOGLEWEDE: I'm not sure he was finished.
23 BY MR. BAER:
24 Q. Okay.
25 A. There comes a time at some point where it is

29

1 thought at least that retraction of the foreskin is
2 necessary for both urinary and sexual function; and if
3 it hasn't happened, sometimes that, too, becomes a
4 reason for which this is -- this might be necessary.
5 But you're correct in that in the prepubital
6 child, generally it is not a necessary procedure.
7 Q. You also indicated in your article,
8 Complications of Circumcision from 1983, that retraction
9 promotes infection and also encourages repeated medical
10 problems as a result of that retraction.
11 Why does it do that?
12 A. I think because it can lead to scarring,
13 irritation and scarring.
14 Q. And isn't the reason for that at birth the
15 foreskin is adherent to the glands?
16 A. Often, yes.
17 Q. And in most instances it is?
18 A. Correct.
19 Q. It does not completely separate up until a
20 year, two years or something like that?
21 A. It can be even longer, that's true.
22 Q. And so that when you do retract it, you
23 indicated it was painful, there could even be a bleeding
24 associated with it?
25 A. There could be.

30

1 Q. And when that is done, when it's allowed to
2 slip back forward to provide the protection for the
3 glands, those cells basically grow together again, don't
4 they?
5 A. They may.
6 Q. And that then if it's pulled down again
7 creates that whole cycle over and over and over again?
8 A. I think that's a bit of hyperbole, but --
9 because generally -- I don't think most people pursue it
10 that far, I guess is the best way to put it.
11 Q. What do you mean most people? Most doctors?
12 A. Most doctors who have tried this once or
13 twice and if it's still not retractable, often that
14 child is then the one that Mr. Spence refers to in his
15 letter who is sent to a surgeon.
16 Q. Sent to the urologists --
17 A. Right.
18 Q. -- for correction?
19 A. Correct.
20 Q. Do you do routine infant circumcision?
21 A. Occasionally, not very often.
22 Q. Under what circumstances are you asked to do
23 them?
24 A. Generally it's a child who was hospitalized
25 for some prolonged period and whose parents want him

31

1 circumcised, and I happen to be available, so...
2 Q. In your article you identify the
3 principles -- four common principles to all forms of
4 circumcision, and I want to make sure I understand these
5 so I can put a framework on them. You talk about
6 asepsis, adequate but not excessive amount of outer and
7 inner preputial layers excised, hemostasis, and
8 cosmesis?
9 A. Right.
10 Q. Now, what is "asepsis"?
11 A. That means trying to prevent -- measures
12 taken to prevent infection.
13 Q. All right. Adequate but not excessive
14 excision of outer and inner preputial layers, that means
15 getting it right?
16 A. That's right.
17 Q. How do you know if it's adequate?
18 A. That becomes a matter of experience and
19 judgment.
20 Q. The more experience you have, the more --
21 A. The more likely it is that it will come out
22 right.
23 Q. Hemostasis is the lack of bleeding?
24 A. Stopping bleeding.
25 Q. And cosmesis?

32

1 A. Right.
2 Q. What is that?
3 A. That means you want it to look like -- look
4 appropriate, I guess, or -- appropriate is the wrong
5 word -- look like a circumcised penis.
6 Q. And does that get into the concept of
7 symmetry?
8 A. In part.
9 Q. And if you have a circumcision that has more
10 skin on one side than the other side, it's not going to
11 look very cosmetic, is it?
12 A. Not necessarily, because sometimes what
13 initially appears to be asymmetrical in reality isn't as
14 time goes on. Often there is some edema or still some
15 adherent inner foreskin or those sorts of things that
16 can give the appearance of asymmetry, when indeed
17 everything is going to be just fine.
18 Q. Would you agree that the penis of an infant
19 intact is symmetrical?
20 A. No, not always.
21 Q. And why is it not symmetrical?
22 Because certainly in my experience I have
23 seen babies where the dorsal side of the penis is -- of
24 the foreskin is longer than the ventral side. That's
25 not symmetry.

33

1 I have seen infants who have a congenital
2 curvature of their penis, such that it goes to one side
3 or up or down. That's not symmetry.
4 Q. In the complication section of the
5 circumcision article referred to as published in 1983,
6 you identify the rates of complication is 9.5 percent of
7 patients had repeated circumcisions for inadequately
8 performed initial operations.
9 A. In that particular series that I quoted,
10 that's true.
11 Q. And is that typical?
12 A. No, I think that's actually rather high.
13 Q. Okay. At the conclusion of this article you
14 say suffice -- or in the complications you say, "suffice
15 it to say that circumcision, like any other surgical
16 procedure, is accompanied by both morbidity and
17 mortality that should be considered when risks and
18 benefits of the operation are discussed."
19 A. True.
20 Q. Would you agree with the statement that
21 circumcision is surgery?
22 A. Yes.
23 Q. Now, in the section of intraoperative
24 complications, you have a section talking about removal
25 of tissue. I just want to ask you whether or not you

34

1 would consider the removal of tissue as causing an
2 injury to the infant.
3 A. I can't answer the question the way it's been
4 phrased.
5 Q. How would you rephrase it?
6 A. All surgery is a controlled injury.
7 Q. Okay.
8 A. So, therefore, that is part -- if the object
9 of the surgical procedure that you plan is to remove
10 tissue, then, yes, this is a controlled, planned
11 procedure that does cause temporary injury to the
12 patient.
13 Q. It would also cause trauma to that tissue?
14 A. Again, it is a controlled trauma --
15 Q. Sure.
16 A. -- whose eventual outcome can be anticipated.
17 Q. Okay. So are you qualifying injury and
18 distinguishing injury that is controlled by a medical
19 doctor versus injury that is accidental?
20 A. In part, yes.
21 Q. What is the difference to the infant, whether
22 there is an injury accidentally or through a controlled
23 procedure?
24 A. In general an injury -- a surgical injury, a
25 planned surgical injury should have a predictable

35

1 outcome that results -- that gives you the desired
2 result.
3 An accidental injury is haphazard, has no
4 control, is not controlled in any way and may have a
5 disastrous outcome or may prove to be very minor.
6 Q. So it is the outcome that determines whether
7 you define it as injury?
8 MS. VOGLEWEDE: I'll object to that.
9 A. No, that misstates what I said.
10 BY MR. BAER:
11 Q. I'm trying to understand why it is difficult
12 for a medical doctor to admit that if you cut off tissue
13 you cause injury.
14 MS. VOGLEWEDE: I'll object to that as
15 argumentative and improper.
16 BY MR. BAER:
17 Q. Do you understand the question?
18 A. I understand the question. I think it's a
19 total mischaracterization of what I said.
20 Q. Okay. Can we agree, Dr. Kaplan, that doing a
21 circumcision on an infant causes injury to that child?
22 MS. VOGLEWEDE: I'll object to that's not a
23 question.
24 A. I would -- not in the sense in which you ask
25 the question. I cannot agree to that.

36

1 BY MR. BAER:
2 Q. In what sense did I ask the question?
3 A. You asked it, so you'll have to expand on it.
4 Q. Would you agree doing a circumcision causes
5 injury to the child?
6 MS. VOGLEWEDE: Objection. It's been asked
7 and answered.
8 A. Only in the sense that it is a controlled
9 surgical injury, as I defined it earlier.
10 BY MR. BAER:
11 Q. Similarly it's a controlled surgical trauma
12 to the tissue?
13 A. Again, as I defined it earlier, that's true.
14 Q. Okay. And the way you defined it earlier was
15 because you had a predictable outcome. If it is not
16 predictable, it's haphazard with potentially disastrous
17 outcomes?
18 A. No. Again, that's -- I think that's
19 extrapolating from what I said and carrying it to a
20 point that mischaracterizes what I said.
21 Q. Okay. So the John Joan John situation where
22 this infant was cauterized to a point where he lost all
23 of his phallus to the penis, was that an injury?
24 A. Yes.
25 Q. Was it a controlled injury?


37
ASAP COURT REPORTING, INC. (800) 490-6587

George Kaplan, M.D. - 2/26/02

1 A. No.
2 Q. It was intended to be a controlled injury,
3 though, wasn't it?
4 A. It was performed incorrectly and, therefore,
5 it resulted in an unanticipated injury.
6 Q. So if a circumcision is performed
7 incorrectly, then there is injury?
8 A. Then there may be injury, true.
9 Q. But the only time you would have injury if a
10 circumcision is performed incorrectly is if there is a
11 disastrous result?
12 A. Would you restate that or repeat it for me,
13 please?
14 (Question was read)
15 A. No, that's not true.
16 BY MR. BAER:
17 Q. Okay. Would you have injury if, for
18 instance, you had bleeding?
19 A. I don't think I can answer the question the
20 way it's been asked.
21 Q. Just let me --
22 A. I mean if you want to ask --
23 MS. VOGLEWEDE: Let him answer.
24 MR. BAER: All right.
25 A. If a circumcision was performed and there was

38

1 subsequent bleeding, that probably has more to do with
2 wound healing and coagulation factors, and those
3 generally would be the reasons for the bleeding to
4 occur.
5 There are instances in which bleeding
6 actually results at the time of the circumcision and is
7 not well controlled. That's true.
8 BY MR. BAER:
9 Q. Would that be an injury?
10 A. Only in the sense that surgery is a
11 controlled injury.
12 Q. And taking that -- I mean just taking the
13 logic of that, Dr. Kaplan, that surgery is a controlled
14 injury. You know that a certain number of surgeries go
15 wrong, right?
16 A. True.
17 Q. That somebody is going to -- we're all human.
18 Somebody is going to mess up someplace, so it's just a
19 controlled injury that's gone wrong. Would you consider
20 a controlled injury that's gone wrong an injury?
21 MS. VOGLEWEDE: I'm going to object. I want
22 to interpose an objection to the form of these
23 questions. I don't know whether you're asking about
24 injury from some legal standpoint or definition or from
25 a medical standpoint, and I think they are vague and

39

1 confusing.
2 Go ahead and answer if you can.
3 BY MR. BAER:
4 Q. Dr. Kaplan, I'm not trying to ask you about
5 injury from a legal standpoint. It's purely a medical
6 standpoint.
7 A. It still can't be answered, because the word
8 injury is being used in two different contexts.
9 Q. Tell me what two contexts it's being used,
10 Dr. Kaplan, so I can appreciate the distinction you're
11 trying to draw.
12 MS. VOGLEWEDE: You're trying to draw the
13 distinction, Mr. Baer. They are your questions. I just
14 want to object to the question on that ground.
15 MR. BAER: Counsel, Dr. Kaplan is the one who
16 just said they are used in two different contexts. I
17 want to know what contexts they are used in.
18 A. In one instance when I used the term
19 controlled surgical -- or surgery as a controlled
20 injury, that is using injury in perhaps its broadest
21 sense. The -- and as I remember the Latin derivation of
22 injury. It's in law, and so I'm not using it in the
23 legal sense.
24 When you use injury in the second sense, I
25 think you're using it in, if you will, a pejorative

40

1 sense, that says that it's a very bad thing, and that's
2 not the distinction, and I'm trying to draw that
3 distinction between those two inferences.
4 Q. Okay. In your 1983 article you talk about a
5 whole host of postoperative complications, and I just
6 want to tick them off and see whether or not they still
7 are valid post-complications in today's world.
8 Skin bridge, is that a post --
9 A. When you say valid, that they still occur?
10 Q. Yeah. Are they still post-operative
11 complications of circumcision.
12 A. Yes.
13 Q. How about infection?
14 A. Yes.
15 Q. Urinary retention?
16 A. Rare, but yes.
17 Q. Meatitis?
18 A. Meatitis.
19 Q. Meatitis.
20 A. Probably. It's not a direct result of
21 circumcision, but it probably is in the broadest sense
22 under the heading of complications.
23 Q. How about chordee?
24 A. Perhaps. That has been -- that has been
25 reported. But as you look critically at some of those

41

1 reports, it's not so clear that that really is a real
2 factor.
3 Q. How about cysts?
4 A. Yes.
5 Q. Lymph edema?
6 A. Again, reported, very rare.
7 Q. Fistulas?
8 A. Yes, reported.
9 Q. Necrosis?
10 A. Yes.
11 Q. Hypospadias and epispadias.
12 A. I would put that in the same category as the
13 chordee. I'm not sure that those reports of hypospadias
14 and epispadias really were iatrogenic in origin. That's
15 just not clear.
16 Q. Just so that I'm clear, "iatrogenic" means as
17 a result of?
18 A. Caused by the physician, yes.
19 Q. Complications of plastibell? They are
20 sometimes in on complications associated with that?
21 A. Yes.
22 Q. Impotence?
23 A. It has been -- it has been claimed in adults
24 that circumcision has produced impotence.
25 Q. Psychosocial issues?

42
1 A. Yes.
2 Q. And anesthetic complications?
3 A. Yes.
4 Q. And in the end, your summary of this article
5 concludes that, "Virtually all of these complications
6 are preventable with only a modicum of care.
7 Unfortunately most such -- most such complications occur
8 at the hands of inexperienced operators who are neither
9 urologists, nor surgeons. However, it usually will fall
10 to the urologist to consult in the management of these
11 complications and to repair such problems as they
12 arise."
13 Do you still agree with that statement?
14 A. Pretty much. I think the part -- the modicum
15 of care may be a little bit of an overstatement, but...
16 Q. You would agree, though, that most of those
17 complications are a result of inexperienced operators?
18 A. No. I think complications can -- certain
19 complications can occur in anybody's hands, especially
20 bleeding, infection, those kinds of things.
21 Q. I'm just reading from what you wrote --
22 A. I understand.
23 Q. -- in 1983, Dr. Kaplan.
24 A. I understand, but I'm a little older and
25 hopefully maybe even a little wiser now.

43

1 Q. The next article I want to refer to is the
2 article reprinted in childhood -- I can't tell you where
3 this is reprinted, but it's bacterial infections of the
4 urinary tract, female children --
5 A. Uh-huh.
6 Q. -- an article written by you. It appears to
7 be from 1978, the Therapy magazine.
8 A. Right -- No, it's a textbook.
9 Q. I'm sorry?
10 A. Parent therapy.
11 Q. Parent therapy. You wrote a piece on
12 bacterial infections of the urinary tract of females,
13 and what struck me was your observation in the first
14 paragraph that approximately one percent of school girls
15 will be found to have significant bacteria at any given
16 time and five percent of all girls will have a urinary
17 infection at sometime during their childhood.
18 A. Correct.
19 Q. Do you remember?
20 A. Yes.
21 Q. Is that still a good number to use when
22 talking about the incidence of urinary tract infections
23 by -- or in young girls?
24 A. I think so. Those numbers come from studies
25 done by an infectious disease specially named Kunnan, I

44

1 think in the late 60's. And I don't think that work has
2 been repeated. I have no reason to readdress those
3 numbers.
4 Q. Is that rate higher than the rate of urinary
5 tract infections in young boys, whether they are
6 circumcised or noncircumcised?
7 A. Yes.
8 Q. Is it higher by five times as high, perhaps?
9 A. There really isn't good data on the exact
10 incidence of urinary tract infections in boys over time.
11 The only data that I'm -- that I'm aware of has to do
12 with infections in -- mostly in infancy and the neonatal
13 period.
14 But as a generalization, yes, that is higher.
15 I can't tell you what multiple it is.
16 Q. And with your vast experience having sat on
17 these committees and studying the issue of circumcision,
18 you know that there are a number of physicians out there
19 who advocate routine circumcision to prevent urinary
20 tract infections, right?
21 A. Again, I think that's -- that may be too
22 strong a statement. There are physicians who believe
23 that urinary tract infections are less common in
24 circumcised boys. Whether or not that's carried so far
25 as to say, you know, everybody should be circumcised...

45

1 Q. Has anybody approached a medical society, to
2 your knowledge, and advocated prophylactic removal of
3 genital tissue of females to prevent urinary tract
4 infections?
5 A. No, because there is no data that would
6 suggest that that was a beneficial procedure.
7 Q. Where have you looked? Have you looked in
8 Somalia? Have you looked in Ethiopia?
9 A. Actually we have a large Somali population
10 locally, so I don't have to go to Somalia. And the
11 incidence of urinary infections in Somali girls is the
12 same. Actually it may be higher.
13 Q. Are those ones that have been infibulated?
14 A. Yes.
15 Q. The first line of defense to a urinary tract
16 infection, whether it be in a boy or a girl, is
17 antibiotics, isn't it?
18 A. No, actally the first line of defense is
19 natural immunity.
20 Q. Okay. It seems to me my wife used to tell me
21 about cranberry juice. Does that --
22 A. That's perhaps a second or third.
23 Q. Second line of defense?
24 A. Right.
25 Q. But from -- if you're going to be treating --

46

1 other than natural immunity, the treatment modalities,
2 the first line would be antibiotics?
3 A. For a simple uncomplicated urinary infection,
4 that's true.
5 Q. The next article that I ran across was an
6 article that you're the last on the authors, so I assume
7 you're the senior author on this one. It's Common
8 Problems in Pediatric Urology, it looks like from a
9 textbook, The Urologic Clinics of North America.
10 A. Yes.
11 Q. And what it appears to -- in the first
12 paragraph talks about circumcision being the most common
13 operation performed in males in the United States.
14 Would you still agree with that statement?
15 A. I believe that's true.
16 Q. And that at least in 1987 1.1 million boys
17 born in the United States were circumcised?
18 A. We believe that to be true.
19 Q. But, again, there is very poor data on that,
20 isn't there?
21 A. Yes.
22 Q. Because there is no reporting on
23 circumcisions?
24 A. Actually there are hospital statistics
25 that -- from which a lot of this was gleaned. The

47

1 problem with those statistics is in current practice
2 many circumcisions are done after hospital discharge.
3 Q. Who is Daniel Neicu (phonetic)?
4 A. At that time he was one of our residents.
5 Q. Okay. And when I looked over this article
6 from 1995, it looked like an expansion of your 1983
7 article.
8 A. That's correct.
9 Q. Is that what it was, you used the 19 --
10 A. Update.
11 Q. You used the 1983 and you updated it?
12 A. Right.
13 Q. And on page 61 you talk about the
14 complications of the procedure, and again you refer to
15 it because circumcision is a surgical procedure and can
16 be associated with morbidity and mortality, risks and
17 benefits of the operation should be discussed with
18 parents before the operation is performed.
19 Do you still believe that?
20 A. Yes, I do.
21 Q. And would you say that all of the risks and
22 potential benefits that you identify in your article
23 should be included in discussion with parents?
24 MS. VOGLEWEDE: I'll object to that as a
25 legal question, not a medical one. Subject to that

48

1 objection, you can answer.
2 A. No, I wouldn't agree with that. I think that
3 in the course of discussing a surgical procedure and
4 specifically this one, it's important to outline the
5 major benefits as you believe them to be, as well as the
6 major or more frequent risks as you believe them to be.
7 But all of those that are only rare instances don't need
8 to be enumerated.
9 BY MR. BAER:
10 Q. Okay. How does the practitioner out on the
11 street know what to include and what not to include?
12 A. There are several different ways, but the
13 most common is whatever the general practice in that
14 community is, which I believe legally is referred to as
15 the standard of care, and what you think that people
16 would want to know if you were in their position. I
17 can't think of a better guideline.
18 And so you tell people what you think the
19 benefits are, you tell people what you think the
20 frequent risks are, and that then constitutes the
21 beginning of informed consent, because there are parents
22 or patients who will tell you don't bother, I don't want
23 to hear this. There are also patients who will tell
24 you -- who will want to greatly expand on whatever you
25 tell them.

49

1 Q. So your understanding is that if in a medical
2 community they just decide we are not going to tell
3 patients anything about the risks of circumcision, only
4 tell them the wonderful things that circumcision might
5 do for their son, that that would be the standard of
6 care?
7 A. No, that mischaracterizes what I said.
8 Q. I thought you said that it is generally --
9 generally described as what the standard of practice is
10 in the community where they are situated.
11 A. But the standard of practice is also modified
12 by many, many things; and one of the things that has
13 modified what patients are sometimes told is -- are
14 concerns about adequate informed consent.
15 And, therefore, I don't think that anyone
16 would accept that as a -- as informed consent.
17 Q. And in order to determine what should or
18 shouldn't be included in a description of the risks and
19 benefits, a practitioner would go to articles such as
20 those you've written, the AAP statement or other
21 documents in the medical literature to determine what
22 those risks and benefits are? Is that a fair statement?
23 A. Not specifically, because if it's a
24 frequently performed procedure, the practitioner would
25 have his own knowledge of these things, based upon other

50

1 readings and experience, and may not -- may not
2 necessarily refer to some specific document.
3 Q. Do you remember writing a document called
4 Circumcision and Overview? I believe it's from 1977.
5 A. Yes.
6 Q. And on -- let's see, the cite to that for the
7 record is -- the cite to this article is circumcision
8 and overview, looks like it was reprinted in Current
9 Problems, Pediatrics, 7,1, 1977; and the discussion you
10 have in there -- even in 1977 you're talking about
11 informed consent, and you say here on page 14 "whether
12 or not circumcision is indicated as a routine procedure
13 is at best moot. However, I believe quite strongly that
14 circumcision should be treated no differently from any
15 other surgical procedure. This means that it should be
16 treated with respect and most important that the parents
17 of the child should have the opportunity of informed
18 consent." Informed is italicized. "Unfortunately all
19 too often the consent to circumcise is included in a
20 sheaf of paper that the mother signs hurriedly on her
21 way to the delivery room, no discussion has been held
22 regarding the merits of the procedure or its inherent
23 risks. As a surgeon I find this inexcusable."
24 Do you still believe that statement?
25 A. Yes. And I'm happy to say that what I wrote

51

1 in 1977 no longer goes on, at least in most communities.
2 Q. How do you know that?
3 A. I spend a lot of -- I do a lot of consulting
4 in the newborn nurseries, so I know -- at least in this
5 community I know what goes on. I have been informed by
6 others that this is not the standard practice anymore.
7 (Recess)
8 BY MR. BAER:
9 Q. Are you also a member of the AMA, Dr. Kaplan?
10 A. Yes, I am.
11 Q. Showing you what has been marked as Exhibit
12 8, I believe that is a policy statement of the AMA on
13 informed consent.
14 Do you recognize that?
15 A. Well, I think I would agree with that
16 statement. I can't say that I specifically remember
17 that -- when it was promulgated.
18 Q. Would you agree that the AMA promulgated
19 position papers on informed consent would define the
20 standard of practice for medical practitioners?
21 MS. VOGLEWEDE: I'll object to that. That's
22 a legal question, not a medical one.
23 MR. BAER: I'm not asking you to do a legal
24 analysis of this.
25 Q. Just from a medical standpoint, would you

52

1 agree the AMA policy statements would define the
2 standard of practice?
3 MS. VOGLEWEDE: Same objection.
4 A. In general, these kinds of policy statements
5 are guidelines. They do not necessarily define
6 practice.
7 BY MR. BAER:
8 Q. Okay. That's fair enough. The guideline,
9 then, would you agree that this is a promulgation of a
10 guideline for informed consent by a deliberative body of
11 your peers --
12 A. Yes.
13 Q. -- nationwide?
14 A. Yes.
15 Q. And an element of informed consent is that
16 the patient needs to have adequate information to be
17 able to judge yes, no, on whether or not a procedure is
18 to be performed; is that right?
19 A. I believe the next part of the statement says
20 "or his representative."
21 Q. Okay. Does it say about a patient? It
22 applies to a patient, doesn't it, a patient knows?
23 A. The -- you're correct, that it states a
24 patient. But a minor cannot consent; and, therefore,
25 the authority to consent is delegated to the parent or

53

1 guardian.
2 Q. Would you agree with the statement of this
3 Exhibit 8, that the physician has an ethical obligation
4 to help the patient make choices from among the
5 therapeuic alternatives, consistent with good medical
6 practice?
7 A. The patient or his representative? I don't
8 know that it specifically says that; but since it
9 referred to representatives in another part, if you're
10 going to include the patient's representative, then,
11 yes, I would agree.
12 Q. We are getting to that right now, where the
13 policy statement says informed consent is a basic social
14 policy for which exceptions are permitted.
15 Before we get to those exceptions, would you
16 agree that informed consent is a basic social policy?
17 A. I believe in this country it has bee

18 accepted that informed consent is the better way to
19 proceed, yes. That is not true worldwide.
20 Q. I understand. But you're not suggesting that
21 we're to measure practice in the United States of
22 America by practices that might be prevalent in Somalia,
23 for instance?
24 A. No, nor necessarily practices that might be
25 true in France, Germany, England.

54

1 Q. Okay. Practices would be identified by this
2 statement?
3 A. Yes.
4 Q. And the exceptions that are noted are where
5 the patient is unconscious or otherwise incapable of
6 consenting. That would take into consideration the
7 minor, wouldn't it?
8 A. I assume so.
9 Q. A patient otherwise incapable of
10 consenting --
11 A. Right.
12 Q. -- that would particularly take into
13 consideration an infant, wouldn't it?
14 A. Yes.
15 Q. And then it says "and harm from failure to
16 treat is imminent." Do you see that? Where the
17 patient is incapable of consenting and harm is imminent
18 is an exception to the patient consenting?
19 A. But if you go to this -- the third sentence
20 in the statement, "to the individual responsible for the
21 patient's care and to make recommendations for
22 management in accordance with good medical practice,"
23 and that -- that is the area that refers to the child.
24 This is referring to the patient who is unconscious,
25 which is a different -- the adult who is unconscious,
55

1 and that's a very different set of circumstances.
2 Q. Do you have any support for that
3 interpretation of this document, Dr. Kaplan?
4 A. My knowledge of the English language and my
5 ability to read and following the contextual way the
6 thing is structured, that's my interpretation.
7 Q. Doesn't it say -- Okay. Let's read it
8 together so we don't miss anything here.
9 "The patient's right of self-decision can be
10 effectively exercised only if the patient possesses
11 enough information to enable an intelligent choice." It
12 talks about the patient only, doesn't it?
13 MS. VOGLEWEDE: I object to this as
14 argumentative. It's been asked and answered.
15 A. In that section that's true. But I get back
16 to what I said before, that the first part refers to the
17 patient's representative. And whenever you're talking
18 about a minor, you have to include -- you have to refer
19 to the patient's representative.
20 BY MR. BAER:
21 Q. Okay. We'll read the next sentence. "The
22 patient should make his or her own determination on
23 treatment."
24 The third sentence, "The physician's
25 obligation is to present the medical facts accurately to

56

1 the patient or to the individual responsible for
2 patient's care and to make recommendations for
3 management in accordance with good medical practice."
4 Right?
5 A. I agree with that.
6 Q. That's where your obligation is to inform --
7 A. Correct.
8 Q. -- the patient or the patient's
9 representatives --
10 A. Right.
11 Q. -- right?
12 A. That's correct.
13 Q. Then it says, "The physician has an ethical
14 obligation to help the patient make choices from among
15 the therapeutic alternatives, consistent with good
16 medical practice."
17 MS. VOGLEWEDE: Objection, repetitious. It's
18 been asked and answered.
19 BY MR. BAER:
20 Q. Do you agree with that --
21 A. Yes.
22 Q. -- that you have an ethical obligation to do
23 that?
24 A. Yes.
25 Q. And informed consent is a basic social policy

57
1 for which exceptions are permitted, and the first one is
2 where the patient is unconscious or otherwise incapable
3 of consenting. You would agree an infant is incapable
4 of consenting, wouldn't you?
5 MS. VOGLEWEDE: Objection, repetitious.
6 A. I believe the way you're interpreting that,
7 you're taking it out of context. That statement does
8 not refer to children.
9 BY MR. BAER:
10 Q. You would agree, would you not, that
11 circumcision or the absence of circumcision would not
12 present a situation where there was imminent harm to the
13 infant patient, right?
14 A. Again, I think you're taking things out of
15 context or trying to take them out of context. That
16 section about imminent harm does not refer to the child.
17 It refers to an unconscious adult.
18 Q. I'm asking you now just to -- would you agree
19 with me that keeping an infant intact would not mean
20 imminent harm to that infant?
21 A. In most instances, I suppose that's true.
22 Q. Unless you had a medical condition that
23 indicated circumcision, right?
24 A. Correct.
25 Q. And the incidence of that is very, very low,

58

1 isn't it?
2 A. Small, yes.
3 Q. Showing you what has been marked as Exhibit
4 12, which is the AAP statement on informed consent, have
5 you seen that document, Dr. Kaplan?
6 A. Yes, I have, but it's been a long time. I'm
7 not -- if we're going to discuss this, I think I need to
8 take a moment to read it.
9 Q. I think you should just take a moment to read
10 it, because I think you cite it in your policy
11 statement.
12 A. It's cited, but it has been a while.
13 Q. Would you agree that the American Academy of
14 Pediatrics' statement on informed consent identified as
15 RE9510 dated February 1995 would establish a standard of
16 care for informed consent as it applies to
17 pediatricians?
18 MS. VOGLWEDE: Objection, a legal question,
19 not a medical one.
20 A. As I stated when we were talking about the
21 AMA policy, I think this would be better characterized
22 as guidelines, rather than standard of care.
23 BY MR. BAER:
24 Q. Again, identify for me why you would consider
25 it a guideline versus a standard of care.

59

1 A. Because standard of care is a legal concept.
2 Guidelines are recommendations from medical bodies that
3 generally do not have the force of law.
4 Q. If standard of care is a legal concept, what
5 do you have in the medical community that equates
6 standard of care in the legal concept?
7 MS. VOGLEWEDE: I'll object that's purely a
8 legal question, not relevant.
9 BY MR. BAER:
10 Q. You, of course -- have you ever testified in
11 a malpractice trial?
12 A. Yes, I have.
13 Q. And you've identified what the standard of
14 care is, right?
15 A. Yes, I have.
16 Q. How do you identify what the standard of care
17 is?
18 A. The standard of care, as I understand it, is
19 a legal concept of what the -- what the prudent
20 practitioner would do in a similar situation.
21 Q. And so you know what the standard of care is
22 by being able to define what the prudent practitioner
23 would do under the same or similar situation?
24 A. That's true.
25 Q. Now, my question again is would the Exhibit

60

1 12, the policy statement of the AAP on informed consent
2 from 1995, establish what a prudent pediatrician would
3 do when dealing with informed consent issues?
4 MS. VOGLEWEDE: Objection. That's a legal
5 question. It's been asked and answered.
6 A. I think that this policy provides a guideline
7 as to what the pediatrician might do.
8 But, no, I don't -- I don't believe that it
9 establishes a standard of care.
10 BY MR. BAER:
11 Q. If I'm not mistaken, I asked Dr. Kantak
12 whether or not it was -- did establish a standard of
13 care; and she said yes, it did. That's my recollection
14 of her deposition.
15 Do you recall reading that in the deposition?
16 A. Not specifically, but she too is entitled to
17 her opinion.
18 Q. Sure. And she, of course, practices in the
19 Fargo-Moorhead area?
20 A. Yes.
21 Q. And she would know what the standard of care
22 is there more than you, coming from Southern California?
23 A. Generally that might be true, although
24 standards of care have gotten to be somewhat --
25 Q. National, right?

61

1 A. National.
2 Q. Exactly.
3 A. Right.
4 Q. The reason they've been national is because
5 of policy statements like Exhibit 12. Isn't that right?
6 MS. VOGLEWEDE: Objection, argumentative.
7 A. No, actually that's not correct. It's
8 because information is more easily disseminated across
9 the country in our modern age, and so practice has
10 become a bit more uniform.
11 BY MR. BAER:
12 Q. By the way, what do you know about the
13 standard of care in Fargo, North Dakota?
14 A. Specifically, I can't -- I don't --
15 Q. Nothing?
16 MS. VOGLEWEDE: Don't interrupt the witness.
17 BY MR. BAER:
18 Q. Okay. Go ahead. Sorry.
19 A. I don't believe -- I believe that the
20 standard of care in Fargo, North Dakota is very much
21 akin to the standard of care in other parts of the
22 country; and based on that, I think I have a good idea
23 of what the standard of care in Fargo, North Dakota is.
24 Q. Upon what do you believe the standard of care
25 in North Dakota is the same as other places in the

62

1 country?
2 A. Since the standard of care is a -- as I've
3 said before, a legal doctrine and it's my understanding
4 that most courts have held that the standard of care in
5 one area is equivalent to the standard of care in
6 another, I would assume that the same would be true in
7 North Dakota as in the rest of the United States.
8 Q. So then I'm not understanding your
9 distinction, Doctor, in saying that the standard of care
10 is what a physician in the same locality would do under
11 like or similar circumstances. It's not a locality
12 standard anymore, is it?
13 A. I didn't say that. I don't believe I --
14 Q. The record will speak for itself, Doctor.
15 MS. VOGLEWEDE: Just a moment. Let him
16 finish his answer.
17 A. I believe that what I said was what the
18 prudent practitioner would do in the same or similar
19 circumstances.
20 BY MR. BAER:
21 Q. It isn't the locality?
22 A. That's correct.
23 Q. With specific reference to Exhibit 12, would
24 you agree with the concept that informed consent when
25 you're dealing with pediatric patients is somewhat

63

1 troublesome?
2 A. It's not -- I don't believe that I would
3 use -- I would characterize it as troublesome. It is a
4 problem which this policy statement actually attempted
5 to address.
6 Q. And the old thinking was that medical
7 decisions used to lie squarely in the hands of
8 physicians, right?
9 A. I never practiced in that era; but, yes, I
10 think that was once true.
11 Q. Well, did you ever practice in pediatrics?
12 A. That's all I do.
13 Q. Okay. Sorry. Pediatric urology.
14 A. That's correct.
15 Q. What era was it where medical decisions were
16 in the hands of physicians as opposed to patients?
17 A. I think in -- I can't pinpoint when things
18 changed, but certainly just prior to my entering into
19 practice, you know, whatever the doctor said was
20 considered what was supposed to be. Patients didn't ask
21 too many questions. They didn't ask for very much
22 information, and that was that.
23 Q. Would you agree with the statement that
24 physicians have a duty to respect the autonomy, rights
25 and preferences of their patients?

64

1 A. Yes.
2 Q. The section identified under the heading
3 ethics and informed consent discusses the ethical
4 dilemmas that face medical doctors in making decisions
5 on what procedures to follow, and it gives some
6 guidelines of certain elements that informed consent
7 must include, and the first one is that the patient
8 should have explanations and understandable language of
9 the nature of the ailment or condition, the nature of
10 the proposed diagnostic steps and/or treatments, and the
11 probability of the success, the existence and nature of
12 risks involved and the existence of potential benefits
13 and risks of recommended alternative treatments,
14 including the choice of no treatment."
15 As that provision applies to routine infant
16 circumcision, there is no ailment or condition that
17 could be described, is there?
18 A. Not at that moment, and I'm not trying to
19 draw an exact parallel, but the same argument that
20 you're trying to make would be made about immunization.
21 Q. I'll get into that. That's a whole other
22 discussion. Let's not divert there right now.
23 So what you're doing is equating immunization
24 and circumcision.
25 MS. VOGLEWEDE: Objection.

65

1 A. No, you're mischaracterizing what I said.
2 BY MR. BAER:
3 Q. Okay. Then --
4 A. I'm only trying to point out that
5 immunization is another area of pediatric practice where
6 utilizing that exact verbiage would not apply.
7 Q. Because there is no ailment or condition that
8 you're trying to resolve?
9 A. At that moment.
10 Q. Right. Right. And the incidents of
11 diphtheria, DPT, tetanus, polio?
12 A. Pertussis.
13 Q. Pertussis, sorry, is much higher than UTI's,
14 isn't it? I mean without vaccination.
15 A. If urinary tract infection were the only
16 thing that you were attempting to prevent, that's true.
17 Q. The second element is that you have to assess
18 the patient's understanding of the above information.
19 A. Right.
20 Q. In the case of an infant who is -- in fact,
21 they can't understand that information, can they?
22 A. That doesn't -- that would not apply, because
23 you would be talking to the patient's representative.
24 Q. But this says the patient's understanding,
25 and it doesn't apply. You're right.

66

1 A. The -- and --
2 Q. The third element is assessment, if only
3 tacit, of the capacity of a parent or surrogate to make
4 the necessary decisions.
5 A. Right.
6 Q. So you have to assess the capacity of the
7 parent or surrogate to me the medical decisions?
8 A. That's right.
9 Q. The fourth is the assurance insofar as
10 possible that the patient has the freedom to choose
11 among the medical alternatives without coercion or
12 manipulation.
13 A. And, again, if we modify that by patient or
14 representative, that's true.
15 Q. It doesn't say patient or representative,
16 does it?
17 A. But elsewhere in that document it
18 specifically addresses that issue, so...
19 Q. We'll get to the consent by proxy. We'll get
20 to that. But these are elements that from an ethical
21 standpoint as a pediatrician you need to take these into
22 consideration before deciding to go ahead with a
23 procedure?
24 A. In general, I will agree with you. But with
25 specifics, I have to again point out that you're taking

67

1 things out of context, because elsewhere in this
2 document and in practice, the right of informed
3 permission, as this document calls it, is allocated to
4 the parent; and until -- and it actually allocates it to
5 the parent up to ten years of age, because it is assumed
6 that a child under ten really cannot assent to
7 treatment.
8 Q. I didn't see ten years of age in here. There
9 is various examples given. One might have been ten
10 years, but I don't think there is a standard ten years
11 of age, but that's beside the point.
12 I want to go to the heading that's identified
13 as problems with the concept of consent by proxy, and
14 that's what you're really dealing with in this
15 circumcision situation, aren't you?
16 A. That's what you're dealing with all the time,
17 every time you deal with a child.
18 Q. I'm just asking you about circumcision.
19 Isn't that what you're dealing with a proxy consent when
20 you're dealing with a decision to circumcise an infant?
21 A. Again, yes, it's true with regard to
22 circumcision, but it's also true with regard to every
23 therapeutic decision that's made for a child.
24 Q. Okay. All right. And under the problems
25 with proxy consent, this statement indicates that proxy

68

1 consent poses serious problems for pediatric health care
2 providers, such providers have legal and ethical duties
3 to their child patients to render competent medical care
4 based on what the patient needs, not what someone else
5 expresses.
6 You agree with that statement?
7 A. In part.
8 Q. What part don't you agree with it?
9 A. Your emphasis on the word "needs," because I
10 think you're trying to place it in too restrictive a
11 context.
12 Q. Isn't that what the document says?
13 A. Again, I'll use the immunization -- the
14 immunization analogy. Not that I'm drawing an exact
15 parallel between circumcision and immunization, but the
16 child does not need the immunization at the moment that
17 it is being agreed to.
18 Q. Would you agree that you have legal and
19 ethical duties to the child patient?
20 A. Yes.
21 Q. And would you agree with the statement that
22 you need to render competent medical care based on what
23 the patient needs?
24 MS. VOGLEWEDE: Objection, repetitious, asked
25 and answered.

69

1 BY MR. BAER:
2 Q. Will you agree with that?
3 A. Again, only in part.
4 Q. Okay.
5 A. Because it depends upon your definition of
6 "need."
7 Q. Under the heading parental permission and
8 shared responsibility -- before I go into that, are you
9 a member of the AAP?
10 A. Yes, I am.
11 Q. So would you adopt this as a standard of care
12 for pediatricians throughout America?
13 MS. VOGLEWEDE: Objection, asked and answered
14 several times.
15 A. Firstly, I'm not in a position to adopt
16 anything for -- as the standard of care for
17 pediatricians throughout the country. I am merely one
18 member of the organization.
19 Secondly, there is nothing in this document
20 that I find foreign to the way I practice or the way
21 that most practitioners practice.
22 BY MR. BAER:
23 Q. But you don't do routine infant
24 circumcisions?
25 A. Occasionally, I do.
70

1 Q. How many have you done in the last year?
2 A. Newborn circumcisions?
3 Q. Yeah.
4 A. Probably no more than two or three.
5 Q. Do you use the Gomco clamp?
6 A. Specifically the Gomco or --
7 Q. Yes.
8 A. I'm not sure I understand --
9 Q. Would you use the Mogan clamp, the Gomco, or
10 do you use the Plastibell, or do you do it free-hand?
11 A. The answer is all of the above.
12 Q. I take it you do it free-hand when you're in
13 a situation where the child is anaesthetized under
14 general anesthesia?
15 A. Generally that's true. But there are some
16 situations even in a newborn where it can be done that
17 way.
18 Q. Okay. Parental permission and shared
19 responsibility, under that heading it talks about the
20 common situation is that parental permission typically
21 articulates what most agree represents the best
22 interests of the child, and I want to just spend a
23 moment on that concept, that when you are talking to a
24 parent and you're telling them about the risks or
25 benefits of a therapeutic procedure, do you assume that

71

1 typically the parent is going to make a decision for
2 their child based on a best interest of the child
3 standard?
4 A. Yes.
5 Q. And that typically -- I mean in most all
6 situations, you and the parent are going to agree on it,
7 right?
8 A. Not always, no.
9 Q. If the parent wants you to do a procedure and
10 you don't think the parent has the best interests of the
11 child in mind, would you do the procedure?
12 A. No.
13 Q. And the academy statement under the shared
14 responsibility goes on to say that, "The law generally
15 provides parents with wide discretionary authority in
16 raising their children. Nonetheless the need for child
17 abuse and neglect laws and procedures makes it clear
18 that parents sometimes breach their obligations toward
19 their children. Providers of care and services to
20 children have to carefully justify the invasion of
21 privacy and psychologic disruption that come with taking
22 legal steps to override parental prerogatives."
23 Do you agree with that statement?
24 A. In the -- if we cut through the verbiage, if
25 you mean in the instance where a parent refuses a

72

1 procedure that is felt to be indicated and if the
2 problem is significant enough, yes, I do agree with it.
3 Q. How about if the parent wants you to do a
4 procedure that you don't think is indicated?
5 A. Then I won't do it.
6 Q. And one of those instances -- I don't know if
7 you've ever been faced with it -- is potential request
8 by a person for altering the female genitalia of their
9 children?
10 A. Depends on the purpose for which.
11 Q. I agree. Altering it for nontherapeutic
12 purposes.
13 A. Yes. Actually I have been faced with that
14 situation; and, yes, I have refused.
15 Q. Okay. And you refuse it because the law says
16 it's against the law?
17 A. No, I refuse it because I think it is of no
18 medical benefit to the child by any stretch of the
19 imagination.
20 Q. Okay. I'm going to show you what has been
21 marked as Exhibit 13. I'll represent to you that that
22 is an AMA policy statement on neonatal circumcision. I
23 believe it's from 2000.
24 A. Yes.
25 Q. Do you agree with that statement? --

73


1 A. Yes, I do.
2 Q. -- Dr. Kaplan?
3 A. Uh-huh.
4 Q. And the statement is dated looks like 1-99,
5 identified as H-60.945.
6 And the question I'd have about it is the
7 statement under paragraph or number 1. It says it,
8 "encourages training programs for pediatricians,
9 obstetricians, and family physicians to incorporate
10 information on the use of local pain control techniques
11 for neonatal circumcision."
12 Do you see that?
13 A. Yes.
14 Q. Why would the AMA in 1999 or 2000 have to
15 come out with a standard suggesting that there should be
16 training for pediatricians, obstetricians, and family
17 practitioners to incorporate pain control when doing
18 circumcision?
19 A. Well, there are several reasons.
20 Q. Tell me.
21 A. Would you like for me to expand on it?
22 Q. Yeah.
23 A. At one point it was thought that pain control
24 was unnecessary in newborn circumcision. Over time it
25 has been learned that that is not a correct statement,

74


1 that babies do better if indeed pain control is
2 administered.
3 The -- it was recognized as part of the work
4 that the task force on circumcision went through that
5 pain control was not uniformly utilized, and this
6 statement from the AMA actually quotes the
7 recommendations of the task force on circumcision, the
8 Academy of Pediatrics Task Force on circumcision, in
9 which it was strongly recommended that if circumcision
10 was to be done, that pain control or measures be taken
11 to control pain.
12 Q. That would go back to your earlier article
13 that you wrote that physicians are very slow to change?
14 A. Actually I think in this instance a change is
15 happening relatively rapidly. The -- this is occurring
16 over the course of probably a five to ten-year period,
17 that it has become apparent that this is beneficial,
18 that there are means to do it effectively and safely;
19 and, therefore, it is being adopted more frequently.
20 Q. Are you saying that the medical community is
21 just now or in the last five to ten years understanding
22 that babies feel pain?
23 MS. VOGLEWEDE: Objection. That
24 mischaracterizes his testimony.
25 BY MR. BAER:
75


1 Q. Well, what was your testimony?
2 A. I can't -- I can't pinpoint exactly when it
3 became common knowledge that that was true, but there
4 was a period where it was thought that newborns did not
5 experience very much pain, and this was true for many,
6 many procedures.
7 Q. Was it, Dr. Kaplan, that the medical
8 community actually believed they didn't experience pain,
9 or was it just they can't express their pain?
10 A. No, it was actually believed that they
11 didn't -- that they didn't experience pain.
12 When I was a young attending in pediatric
13 hospitals, standard pain control for major surgical
14 procedures in newborns was Tylenol. It was thought that
15 narcotics were dangerous, they were not administered,
16 and it was felt that they were unnecessary.
17 Q. The danger, that's a different issue than
18 pain.
19 A. No.
20 Q. That's a totally different issue.
21 A. I said they were felt to not be necessary.
22 Q. And what body of knowledge was developed that
23 suddenly determined that babies feel pain?
24 A. People began to look at and to measure
25 responses to painful stimuli and found that, yes,

76

1 indeed, infants do experience pain, they do exhibit
2 stress reactions that are associated with pain; and as
3 time went on, it was also shown that you could block
4 these reactions by administering various pain control
5 measures.
6 Q. What documentation or information do you have
7 that now physicians are incorporating pain control
8 techniques into circumcision?
9 A. Again, I can only speak to what is apparently
10 standard in this community, and that is my understanding
11 from observation and conversation with practitioners.
12 Q. And the fact that the statement was felt
13 important enough to release in 1999 would suggest that
14 there are a substantial number of practitioners out
15 there that still do not know that babies feel pain?
16 A. I can't speak to that one way or the other.
17 I think it was actually promulgated mostly to support
18 the position of the academy of pediatrics in this
19 regard.
20 Q. The statement also identifies and I think it
21 may just be a quote from the AAP statement, but it talks
22 about unbiased information being given to the parents of
23 the risks and benefits of the procedure.
24 Why would this statement need to identify
25 information being given as unbiased?

77

1 A. I think that's -- that's an attempt to remind
2 us that we all have our prejudices, and no matter how
3 careful we are they tend to creep into everything that
4 we do.
5 I think a better word than "biased," which is
6 somewhat emotionally charged, might be opinions; and
7 it's a request to -- or a recommendation to try to
8 present both sides of the equation when data is not
9 clear.
10 Q. Would an example of a bias be if a physician
11 is circumcised and they have consented to the
12 circumcision of their own children, that they would
13 continue on that sort of, you know, I did it, so it has
14 to be okay? Would that be an example of bias?
15 A. It might be, but it might not be.
16 Q. You certainly heard that during your time on
17 the committee studying the issue, that there is a lot of
18 bias when it comes to advising parents based on personal
19 experiences?
20 A. All medical decisions are based on personal
21 experiences, all -- that is not quite true. All
22 physicians biases are based on personal experiences, not
23 necessarily their own personal, but the patients that
24 they have treated over the years.
25 Q. I'm showing you what has been marked as

78

1 Exhibit 9. I'll represent to you that that is a copy of
2 the AAP statement, RE9749, on the topic of female
3 genital mutilation released in July of 1998.
4 Have you reviewed that position statement,
5 Dr. Kaplan?
6 A. I've read it. I haven't recently reviewed
7 it.
8 Q. Okay. Let me just ask you some general
9 questions about a statement like this.
10 Would you agree that as a member of the
11 American Academy of Pediatrics this organization tries
12 to influence standards of practice throughout America?
13 A. I believe that's -- it could be better
14 characterized as saying that the organization tries to
15 improve the health and welfare of children throughout
16 the country and makes recommendations based on current
17 medical knowledge that seem to be in that accord.
18 Q. And the goal is to change perhaps some
19 inadequate practices that may be existent amongst
20 pediatricians throughout the United States?
21 A. When there is data to suggest that practice
22 is inadequate and there is a better practice, especially
23 one that is well documented with data, then there would
24 probably be a recommendation in that regard.
25 Q. And the AAP came out with a statement even

79

1 though there is a Federal law that bans alteration of
2 female genitalia in minors, right?
3 A. I'm not sure what you're asking me. You mean
4 this statement?
5 Q. Yes. This came out in 1998, and it refers to
6 a Federal law in 1996 that makes it a crime to alter
7 genitalia of females.
8 MS. VOGLEWEDE: What's the question?
9 BY MR. BAER:
10 Q. Are you familiar with that? Are you aware of
11 that?
12 A. Yes, I knew there was such a law.
13 Q. Why would the AAP need to formulate a
14 statement suggesting that members don't do any female
15 genital alteration if there is a law that criminalizes
16 it?
17 A. It's my understanding -- and I was not part
18 of the group that formulated this statement, but it is
19 my understanding that the biggest reason for this
20 statement was an attempt to influence behavior in other
21 parts of the world, and it had nothing to do with the
22 fact that there was already a law on the books.
23 Q. Okay. Generally speaking there are various
24 forms of FGM, all of which to one degree or another
25 involve the cutting of otherwise healthy genital tissue.

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1 Will you agree with that statement?
2 A. Yes.
3 Q. Would you also agree that routine infant male
4 circumcision is the cutting of otherwise healthy genital
5 tissue?
6 A. Yes.
7 Q. Would you also agree that the reasons
8 advanced by cultures for doing female genital mutilation
9 are for cultural reasons, for religious reasons, social
10 reasons, or tradition?
11 A. Perhaps, yes.
12 Q. And would you also agree that the same
13 countries who advocate and practice female genital
14 mutilation also practice mutilation of boys at about the
15 same age, sort of a right of passage from child to
16 adult?
17 A. I don't believe that's an entirely correct
18 statement.
19 Q. Would you agree that the countries who
20 practice female genital mutilation also practice
21 circumcision?
22 A. I'm not sure that all of them do.
23 Q. And the countries that practice female
24 genital mutilation typically do that at an age of 10 to
25 12 to 13 in girls, and serve as a right of passage? Are

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1 you aware of that?
2 A. Yes. Sometimes younger.
3 Q. And you have seen, have you not, the gruesome
4 footage of female genital mutilation?
5 MS. VOGLEWEDE: "Gruesome footage" meaning
6 what?
7 BY MR. BAER:
8 Q. Video footage, haven't you?
9 A. Yes, I have.
10 Q. Which video have you seen?
11 A. I don't remember names.
12 Q. Okay. Did you see it when you were on that
13 committee?
14 A. No, I don't believe that that was shown to
15 the committee.
16 Q. How were you -- or where did you receive the
17 footage?
18 A. I really don't remember. I just remember.
19 Q. You understand that when it's done it's done
20 with crude instruments, razor blades, of various states
21 of decay, sharp or dull knives or other sharp objects?
22 MS. VOGLEWEDE: I'm going to object to this
23 as being irrelevant to the case, beyond the scope of
24 discovery.
25 BY MR. BAER:

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1 Q. Do you understand that?
2 A. Yes. But I don't see its relevance to what
3 we are talking about here today.
4 Q. Don't they use those same instruments to
5 circumcise the boys in the same ritual?
6 MS. VOGLEWEDE: Same objection.
7 A. Actually, no. At least most of the female
8 circumcisions are done by women in the various tribes.
9 Most of the circumcisions in males are done by males in
10 the tribes, and I would assume -- it is an assumption --
11 that the instruments and perhaps even the types of
12 instruments are very different. I don't know that one
13 can necessarily draw an analogy there.
14 BY MR. BAER:
15 Q. And the statement on FGM identifies the
16 number of women subjected to female genital mutilation
17 as being 100 million worldwide?
18 A. I can't speak to that one way or the other.
19 Q. Would you believe that the amount of boys
20 that are circumcised exceeds that number?
21 A. I suspect so, but I don't know. I have no
22 basis for the number of circumcised males in the world.
23 Q. What is the incidence of circumcision from a
24 percentage standpoint of the world population?
25 A. I have no idea.

83

1 Q. If I told you that it was 3 percent of the
2 world's population is circumcised, would you disagree
3 with that number?
4 MS. VOGLEWEDE: Objection. He just stated he
5 doesn't know, lack of foundation.
6 A. I probably would, because there are large
7 portions of the world's population that do practice
8 circumcision.
9 BY MR. BAER:
10 Q. Tell me, though.
11 A. The entire Moslem world, which is the largest
12 of the religious groups in the world --
13 Q. Okay.
14 A. -- the Philippines, the Australian
15 aborigines, a certain percentage of people in this
16 country, a small percentage of people in European
17 countries.
18 Q. How about China?
19 A. China in general is -- does not practice
20 circumcision.
21 Q. You did not mention the Jewish population,
22 they also --
23 A. That is, but that's a very small piece of
24 the world population, so...
25 Q. Isn't the aboriginal -- Australian --

84

1 A. I think there are more aborigines than there
2 are Jews in the world.
3 Q. You think so?
4 A. I think so. I could be wrong, but I think
5 so.
6 Q. Isn't it true, Dr. Kaplan, that the United
7 States is really the leader, shall we say, of
8 circumcision for nonreligious reasons?
9 A. No, I don't think that's a true statement,
10 because I sus -- in the Philippines it's not done for
11 religious reasons, and yet it's very widely practiced,
12 granted not for medical reasons, but....
13 Q. For religious reasons?
14 A. No, it's not for religious reasons.
15 Q. What is it for?
16 A. It's cultural.
17 Q. People in America don't do it for cultural
18 reasons, do they?
19 A. The -- in its broadest sense, I think some
20 do.
21 Q. You think that's a valid reason to continue
22 that practice, because culture wants it?
23 A. As long as it is not an illegal practice, I
24 think that's reasonable, yes.
25 Q. And under the FGM standard set by the AAP,

85

1 they talk about the humanitarian and medical
2 organizations and specialty groups that were opposed to
3 the practice on a worldwide basis. Do you remember
4 reading that in there? It's page 8.
5 I'm sorry, one of those.
6 A. Yes.
7 Q. And the types of female genital mutilation
8 include type one, which is defined as being in some
9 instances very benign, like just the removal of the
10 clitoral hood, right?
11 A. I'm not aware of the classification of
12 various forms of female mutilation; but, yes, that's
13 true.
14 Q. And the routine infant male circumcision
15 removes a lot more tissue than just if somebody did the
16 removal of the clitoral hood, right?
17 A. In relationship to the size of the phallus,
18 I'm not sure that's a true statement. But I'm not sure
19 where you're going -- well, I think I know where you're
20 going with this. I'm not sure I can agree with you.
21 Q. Well, let's take a girl who is -- has a
22 Suni-type of female genital mutilation, which is just
23 the removal of the clitoral hood performed as an infant
24 in Somalia. In the next crib is an infant boy who has a
25 routine infant male circumcision. Is there more tissue

86

1 removed from the boy than the girl?
2 MS. VOGLEWEDE: Objection. It's been asked
3 and answered.
4 A. I don't see that this has any bearing on what
5 we're talking about, but --
6 BY MR. BAER:
7 Q. I'm just asking to you opine as to what
8 tissue is larger. Is it the boy or the girl?
9 MS. VOGLEWEDE: Same objection, repetitious.
10 A. It would depend on the size of the phallus of
11 the girl, and I have seen girls with a phallus such that
12 it could be larger in the girl than in the boy.
13 BY MR. BAER:
14 Q. Even as infants?
15 A. Even as infants.
16 Q. That would be the exception rather than the
17 rule, though, right?
18 A. Yes, it would.
19 Q. And there is a statement here under the
20 cultural and ethical issues where the AAP has said, "The
21 physical burdens and potential psychological harms
22 associated with FGM violate the principle of
23 nonmaleficence, a commitment to avoid doing harm and
24 disrupt the accepted norms inherent in the
25 patient-physician relationship, such as trust and the

87

1 promotion of good health."
2 Do you agree with that statement?
3 A. Yes.
4 Q. Would you agree with the statement that FGM
5 is characterized as a practice that violates the rights
6 of infants and children to good health and well-being,
7 part of a universal standard of basic human rights?
8 A. Yes.
9 Q. Would you agree that routine infant male
10 circumcision also violates that infant's right to
11 autonomy?
12 A. No.
13 Q. So you don't think an infant has a right to
14 autonomy?
15 MS. VOGLEWEDE: Objection, that was not the
16 question.
17 A. If you mean by autonomy that the infant has
18 the right to make decisions for himself, the infant is
19 in no position to make decisions for him or her -- well,
20 himself in this case at that stage of his life.
21 BY MR. BAER:
22 Q. I understand. But if there is no medical
23 reason for -- no medical emergency to do a procedure,
24 does the infant have the right to autonomy?
25 A. Again, I will get back to the analogy, not

88

1 that I'm holding them comparable, of immunization and
2 circumcision. The infant does not have the right to
3 autonomously reject immunization, does not have the
4 ability to do so.
5 Q. Okay. And that's because the medical doctor
6 intervenes?
7 A. No, that's because the parent has said this
8 is what I want for my child.
9 Q. Okay. But the Somali woman who says I want
10 this for my child is denied a clitordectomy?
11 A. Because there is by no stretch of the
12 imagination any medical benefit to be had from that
13 procedure.
14 Q. I want to show you what has been marked as
15 Exhibit 7. It's a model informed consent for routine
16 male infant circumcision. Just take a moment to look at
17 it, unless you've seen it before.
18 MS. VOGLEWEDE: Was that Dr. Wayne's form?
19 MR. BAER: I don't think it is, Jane.
20 THE WITNESS: Okay.
21 BY MR. BAER:
22 Q. After you've had a chance to review that
23 proposed model information consent form --
24 MS. VOGLEWEDE: Can you identify the source
25 of this?

89

1 THE WITNESS: From its tone and from what Dr.
2 Wayne testified in her deposition, I suspect that that
3 is her form.
4 MR. BAER: The only thing I can identify is
5 from the footer on the bottom, that's where I got it
6 from.
7 A. Nocirc.
8 BY MR. BAER:
9 Q. Nocirc.org.
10 After having had an opportunity to review
11 that document, does it identify a brief description of
12 the risks and benefits of routine infant male
13 circumcision?
14 A. Actually I would characterize it a little
15 differently. I think it extensively identifies risks
16 and briefly identifies benefits and is far from a
17 nonbiased document.
18 Q. Okay. Do you have an example of a nonbiased
19 document that you could point us to, Dr. Kaplan?
20 A. I don't have any specific document that
21 details risks and benefits, if that's what you're
22 asking.
23 Q. What do you use when you do routine infant
24 male circumcisions, the two or so that you do a year?
25 A. I discuss it with the parents. I point out

90

1 that there are some benefits, the benefits are that
2 there is a reduction in the incidence of urinary
3 infections in the first six months of life; after that
4 it's only a very slight reduction; that it prevents in
5 most instances cancer of the penis in older men; it
6 obviates some of the problems that uncircumcised men get
7 into, such as phimosis and paraphimosis; that the risks
8 are those of any surgical procedure; that, you know,
9 local anesthesia will be used, there can be risks to the
10 local anesthetic, but they are small, but they are
11 always there; that there is a risk of bleeding, but it's
12 almost always easily controlled; that there is a small
13 risk of infection, which is true of any surgical
14 procedure; and that in my hands those are the major
15 risks and benefits.
16 Q. Would you always describe the benefits before
17 the risks?
18 A. Generally, yes.
19 Q. Why?
20 A. Because that's --
21 Q. Bias?
22 A. No, because that's the way I think of things
23 and the way most people think of things.
24 Q. I thought you just said everything that
25 doctors do are a result of bias.

91

1 MS. VOGLEWEDE: Objection, mischaracterizes
2 his testimony.
3 A. No, I said every -- I -- actually I think
4 that does mischaracterize what I said. I don't believe
5 that I said that all medical decisions involve bias.
6 BY MR. BAER:
7 Q. Yeah. So your medical decision is to
8 describe the risks, right?
9 A. The --
10 Q. I mean describing risks is a medical
11 decision, isn't it?
12 A. No.
13 Q. It isn't a lay decision.
14 A. No. The lay decision is whether to do it or
15 not. The medical decision -- the medical obligation is
16 to explain why it's being done --
17 Q. Okay.
18 A. -- and what the risks are.
19 Q. All right. Do you use a written document to
20 describe the risks and benefits --
21 A. No.
22 Q. -- of circumcision?
23 A. No.
24 Q. Would you think that Exhibit number 7, the
25 model circumcision informed consent form, would meet AAP


92

1 standards for informed consent?
2 A. No, I don't.
3 Q. Why not?
4 A. Because I think it's far too heavily weighted
5 toward the risk side and doesn't --
6 Q. It's biased?
7 A. It's biased.
8 Q. In your mind?
9 A. Right.
10 Q. Do you know of any written informed consent
11 document that would meet your criteria that would be
12 unbiased?
13 A. No.
14 Q. It just doesn't exist?
15 A. I didn't say it doesn't exist. I just
16 haven't seen it.
17 Q. Okay. Show you what has been marked as
18 Exhibit 1. That is the AAP policy statement that I
19 think you were intimately involved in as a committee
20 member to review the literature and come to some
21 consensus on a statement for your colleagues in the
22 American Academy of Pediatrics on circumcision; is that
23 right?
24 A. Correct.
25 Q. And that is the circumcision policy statement
93

1 identified as number RE9850; is that correct?
2 A. I don't know the numbering, but --
3 Q. Pediatrics Volume 103, number 3 for the
4 record, March 1999, pages 686 to 693.
5 How were you chosen to be on the task force,
6 Dr. Kaplan?
7 A. I'm not sure exactly how I was chosen. I
8 know that I am a member of the academy. I am a member
9 of the section on urology.
10 The section on urology was asked to submit
11 names for people to be on the task force. I have
12 written in the past about complications of circumcision,
13 and I suspect on that basis my name was submitted.
14 Q. Were there any members on the task force,
15 male members, who were intact, who had a foreskin?
16 A. I have no idea.
17 Q. In the statement you concluded that the
18 percentage of male infants circumcised varied by
19 geographic location and religious affiliation, and it
20 talks about the circumcision as being uncommon in Asia,
21 South America, Central America, most of Europe.
22 Do you see that? I think it's on page --
23 A. I'm just looking for one other thing that you
24 said, but -- the geography I believe is correct, that
25 you talked about religious affiliation. I don't
94

1 remember that there was ever anything that specifically
2 dealt with that.
3 Q. Doesn't it talk about in Canada 48 percent of
4 the males are circumcised?
5 A. I said religious. What does that have to do
6 with religion?
7 Q. Some groups, such as followers of Jewish and
8 Islamic faiths practice circumcision for religious or
9 cultural reasons?
10 A. Right. But you're mixing two different
11 things.
12 Q. What are you confused about, Dr. Kaplan?
13 A. The -- your statement -- could you read back
14 Mr. Baer's statement earlier about three back where he
15 said that -- as I heard it, that there were geographic
16 and -- I don't remember how he put it, but geographic
17 and religious -- he lumped them together. That's what
18 I'm trying to -- that's what I was trying to answer. So
19 could you get that for me?
20 Q. I can read it right off here, if that would
21 be easier. It's just the first sentence. "The
22 percentage of male infants circumcised varies by
23 geographic location, religious affiliation, and to some
24 extent by socioeconomic classification.
25 A. I didn't hear the comma.
95

1 Q. And you concluded, did you not, that there
2 was very few data to even identify how prevalent routine
3 infant male circumcision was in America; isn't that
4 right?
5 A. That's true.
6 Q. And you also concluded that whatever studies
7 that were out there, they were an inadequate sampling to
8 conclude any percentages of circumcision?
9 A. I don't remember that we quite said it that
10 way.
11 Q. "However, data from the NCHS are based on
12 voluntary collection of data taken from participating
13 hospitals; less than five percent of hospitals in the
14 United States participate. Thus NCHS data provide an
15 inadequate sample to estimate national circumcision
16 frequency."
17 A. That statement I will agree with. And I
18 already pointed out earlier that in current practice,
19 since many circumcisions are done as outpatients, they
20 would never enter into this database.
21 Q. Circumcisions done by the Moslem community or
22 the Jewish community wouldn't enter the database either,
23 would they?
24 A. Some -- well, not -- probably not anymore.
25 They would have two or three decades ago.
96

1 Q. On the discussion about methods of
2 circumcisions, Dr. Kaplan, you caution that those
3 performing circumcision should be adept at suturing to
4 ensure that hemostasis can be secured when necessary and
5 that skin edges can be brought together if they should
6 separate widely.
7 Do you agree with that statement?
8 A. Yes, I do.
9 Q. You would agree with that statement, because
10 that is a known complication for circumcision, right?
11 A. It's a known occurrence in any surgical
12 procedure. Therefore, to ensure that the surgical
13 procedure goes well, if you have those skills, then the
14 procedure should go well.
15 Q. Okay. The last sentence it says that, "If
16 circumcision is done in the newborn period, it should be
17 performed only on infants who are stable and healthy."
18 A. Correct.
19 Q. Why is that?
20 A. So that one does not expose the infant to any
21 inordinate risk.
22 Q. Right. The pain associated with a
23 circumcision, right?
24 A. I said inordinate risk. No.
25 Q. The stress on the body?

97

1 A. Perhaps.
2 Q. What inordinate risk would there be to a
3 child who is stable and -- who is not stable and healthy
4 in doing a circumcision?
5 A. If it's a premature infant who has apnea, he
6 might stop breathing. He might experience a
7 pneumothorax or several other things that would very
8 much complicate the event.
9 Q. Under the heading in the statement, Dr.
10 Kaplan -- the heading of analgesia, you say that there
11 is considerable evidence that newborns who are
12 circumcised without analgesia experience pain and
13 physiologic stress; is that correct?
14 A. Uh-huh.
15 Q. Do you see that?
16 A. Yes. I'm looking for it. I know it's here.
17 Q. Under the heading of analgesia.
18 A. Okay. Uh-huh.
19 Q. The first sentence.
20 A. Right.
21 Q. Is there any doubt about that, Dr. Kaplan?
22 A. As -- let me just double-check something.
23 At this point the answer is no, but what I
24 was double-checking is the dates on some of the
25 references that were given, and you'll notice that the

98

1 earliest of those references is 1976.
2 And as I pointed out earlier in my
3 deposition, there was a time when it was thought that
4 infants did not experience pain.
5 Q. Why didn't you just write then kids
6 experience pain in a circumcision, instead of saying
7 there is considerable evidence that newborns who are
8 circumcised without analgesia experience pain and
9 physiologic stress?
10 MS. VOGLEWEDE: Objection, argumentative.
11 It's being asked purely for argumentative reasons.
12 A. Just as the legal profession likes to use
13 words to expand on a point, the medical profession tends
14 to use words to equivocate, and almost every medical
15 document is written in very equivocal terms, almost
16 never in the kinds of terms that you're asking for; and
17 that's the reason that it appears the way it does.
18 BY MR. BAER:
19 Q. The articles, as you suggest, that cited to
20 the proposition that there is evidence that there is an
21 experience of pain in a newborn being circumcised is
22 from 1976, 1981, 1980, and 1983?
23 Did it take the AAP from 1980 to 1999 to come
24 up with a recommendation that analgesia should be used?
25 A. Yes, it did.
99

1 Q. And, therefore, again, it is because
2 physicians are slow to change?
3 A. No. It's because there was not -- there was
4 no good evidence that effective, safe analgesia could be
5 provided until relatively recently.
6 Q. Your dorsal penal nerve block references are
7 from 1983.
8 A. That's relatively recently.
9 Q. I mean the pain was from 1979. It took 17
10 years?
11 A. In terms of medical change, that's relatively
12 short.
13 Q. Okay. All right.
14 (Recess was taken from 4:00 until 4:09)
15 BY MR. BAER:
16 Q. Going back to the AAP statement, Dr. Kaplan,
17 I think we were talking about the terminology, and you
18 were explaining how medical literature describes -- and
19 I want to understand what your statement was, that --
20 you said that like lawyers, the medical community --
21 what was that statement?
22 A. I said that perhaps I shouldn't have used the
23 legal analogy, but I said that medical literature
24 generally equivocates, that it is often written in the
25 third person, that it's written passively. It very

100

1 rarely makes very definitive and bold statements.
2 Q. How would you describe the body of literature
3 dealing with circumcision, routine infant circumcision?
4 MS. VOGLEWEDE: I'm going to object to the
5 form of the question as overly broad.
6 A. Just as the form of the question is overly
7 broad, the literature is also perhaps best described as
8 extensive, sometimes biased, oftentimes biased. The --
9 and the kind of thing that often generates arguments is
10 not based on scientific facts but more on emotion.
11 BY MR. BAER:
12 Q. And when you say that the literature is
13 biased, you would agree the literature is biased both
14 ways?
15 A. That is correct.
16 Q. There is that camp that is pro-circumcision
17 and there is a camp that's anti-circumcision?
18 A. Correct.
19 Q. Would you consider members in the camp, for
20 the lack of a better term -- the pro-circumcision camp
21 to be made up of Schoen, Wiswell and Moses?
22 A. If you're asking me are those people
23 advocates of routine circumcision, the answer is yes.
24 Q. And just looking at the statement, the
25 circumcision policy statement, when you're dealing with

101

1 the UTI segment of this statement and you talk about
2 various published studies, three out of the seven
3 studies are done by Dr. Tom Wiswell. Are you aware of
4 that?
5 A. Yes, I am.
6 Q. And you concluded that his figures were
7 grossly inflated by reference to other studies, right?
8 A. I don't know that we concluded that, but we
9 did feel that the numbers were a bit inflated.
10 "Inflated" is the wrong term.
11 Q. Didn't you say more recent studies using
12 cohort and case control design also support an
13 association, although reduced in magnitude?
14 A. Right, but the implication was not that Dr.
15 Wiswell's numbers were somehow artificially inflated but
16 just that better -- better designed studies have shown
17 the same relationship but just not in quite the same
18 magnitude.
19 Q. Using a cohort and case control design is a
20 better study than what Wiswell did, in the
21 retrospective?
22 A. That's true.
23 Q. And that cut the incidence in about a half,
24 didn't it?
25 A. True.
102

1 Q. And as you suggested earlier, the -- when you
2 were giving a brief description of what you would tell a
3 person who was asking for routine infant male
4 circumcision, you would say that there is a slight
5 increase in urinary tract infections up to the age of
6 about six months and then it gets insignificant?
7 A. That's not what I said. I said there is an
8 increase in the first six months, and there still is a
9 slight increase after six months, but it's very small.
10 Q. Okay. The increase is small or the total
11 incidence is small in both instances?
12 A. A little of both, but --
13 Q. Okay.
14 A. But there is more of an incidence in the
15 uncircumcised male.
16 Q. And the reason there is a problem comparing
17 this data, is there are a whole host of confounding
18 factors that these studies apparently overlooked or
19 didn't take into consideration; is that right?
20 MS. VOGLEWEDE: You mean the UTI studies?
21 BY MR. BAER:
22 Q. Yes, the UTI studies.
23 A. That's often true of any study design. I
24 think part of the -- I can't think of the word I'm
25 looking for, but part of trying to evaluate medical

103

1 literature is looking for those kinds of things. In any
2 study design that might either explain differences or
3 explain why there were no differences, those kinds of
4 things.
5 Q. For instance, if Wiswell's study included all
6 premature infants, that would be a confounding factor,
7 to artificially increase the UTI rates in noncircumcised
8 infants?
9 A. Actually I don't know that. I don't know
10 that there is a difference in the incidence of urinary
11 infections between pre-mature infants and term infants.
12 Q. I think your study says it, but --
13 A. Well, I didn't -- if it says it, I'll have to
14 stand by it, but I didn't remember that.
15 Q. Just look under UTI.
16 A. I think the -- it seems to me the only thing
17 it says is they are not circumcised because of their
18 fragile health status. I don't think it says anything
19 about --
20 Q. Reference 7577, for example, because
21 premature infants appear to be at increased risk for
22 UTI, the inclusion of hospitalized premature infants in
23 a study population may act as a confounder by suggesting
24 an increased risk of UTI in uncircumcised infants.
25 Premature infants are usually not circumcised because of

104

1 their fragile health status.
2 Do you see that discussion about confounding
3 factors?
4 A. Yeah, I do. I must admit I didn't remember
5 that specific point, but I will stand by what's there.
6 Q. The other confounding factor these studies
7 didn't take into consideration are breast-feeding?
8 A. True.
9 Q. And method of urine collection?
10 A. True.
11 Q. And the method of urine collection is a great
12 confounder, isn't it?
13 A. Yes, it is, although in Wiswell's study
14 reportedly those were collected by suprapubic aspirate,
15 which should be a reliable method of collection.
16 Q. Which one of his studies?
17 A. As I remember -- it's been awhile since I
18 looked at it -- it was the original study.
19 Q. His 1985 study?
20 A. I believe -- I'd have to go back and look at
21 the study itself, but that is my memory of that study.
22 Q. Wasn't that just a retrospective of?
23 A. It was. But the urines in that study, as I
24 remember --
25 Q. All of them, is that your recollection that

105

1 all of them --
2 A. Yes, sir.
3 Q. -- were?
4 A. Yes.
5 Q. This study -- in this document you say no
6 study addressing the association between UTI and
7 circumcision status have used suprapubic aspiration
8 exclusively. One study, however, did use suprapubic
9 aspiration in 92 percent of urine collections and noted
10 a tenfold increased risk of UTI in uncircumcised male
11 infants compared with circumcised infants, and the
12 reference is to 66.
13 A. Which is Wiswell's study --
14 Q. Wiswell 1986.
15 A. -- so -- and that was my memory. I was in
16 error, but not by much.
17 Q. But in any events, you concluded after
18 reviewing all the literature that the incidence of
19 urinary tract infections was not a sufficient
20 justification to recommend routine circumcision?
21 A. That -- the operative word is "routine."
22 That's correct.
23 Q. Okay. Do you recall any of the authors that
24 you would have reviewed the studies or the authors of
25 studies you would have reviewed that were biased against

106

1 circumcision as it relates to UTI?
2 A. I can't cite the author, but there is a study
3 I believe -- I believe it's out of Kaiser in San
4 Francisco, but it's not Schoen's group, where the --
5 where they showed or thought they showed the incidence
6 of urinary infection really wasn't very much higher in
7 circumcised as opposed to uncircumcised boys.
8 The other studies that might -- there is a
9 lot of literature -- it's not so much studies -- more
10 opinions out of Britain, Australia, Canada, you know,
11 speaking against circumcision; and these were all looked
12 at.
13 Q. Right. You took those into consideration?
14 A. Yes, we did.
15 Q. It's cited in here?
16 A. That's right.
17 Q. The British Society, the Australian Society,
18 Canadian Society --
19 A. Yes.
20 Q. -- all advocate against circumcision, do they
21 not?
22 A. Correct. Actually I don't know that's quite
23 correct. It is more that they don't recommend it as a
24 routine. The British speak against it. The
25 Australians, as I remember, did not recommend it as


107
1 opposed to specifically saying that it should not be
2 done.
3 Q. And out of all of those different literature,
4 the risks of UTI, cancer, venereal diseases, none of
5 those studies were sufficient to convince you as a
6 committee or as a body speaking for the collective
7 membership that there was enough evidence to routinely
8 recommend circumcision?
9 A. That's almost a correct characterization,
10 because as is true with every medical decision, you're
11 weighing risks against benefits, and you're looking
12 at -- right now we are looking at the benefit side.
13 Yes, there are some benefits, but you can't say that
14 they are so strong that everybody has got to have it
15 regardless of the risk, which is the way that
16 immunization probably is viewed.
17 I mean we know that there is a risk to
18 immunization, but we also know the benefits --
19 Q. Outweigh that risk?
20 A. Greatly outweigh that risk.
21 Q. Okay.
22 A. When you then look at the risks of
23 circumcision, yes, there are some risks of circumcision.
24 They are not -- in general they are not terribly great
25 risks, but they are there. When you weigh these

108

1 benefits against risks, although there may be some
2 potential benefit, the benefits are not so great that
3 you could say we recommend routine circumcision.
4 Q. I want to know whether I understand what you
5 just testified to, Dr. Kaplan.
6 Would it be fair to say that if the
7 benefits -- I'm sorry -- if the risks are small, the
8 benefits are therefore also small?
9 A. No. That's not what I said. I said that
10 there -- that there are benefits to the individual
11 patient. They may be very great. We're talking now on
12 a societal basis, not about the individual.
13 Q. This says nothing about the ability to make a
14 case-by-case decision if there is a medical reason?
15 A. No.
16 Q. All this is addressing is routine infant male
17 circumcision?
18 A. That is correct.
19 Q. Now, my question to you, Doctor --
20 MS. VOGLEWEDE: Just a moment. I don't think
21 he was finished answering earlier when you broke in.
22 A. What I was going to add was, yes, there are
23 benefits. Yes, there are risks. The committee did feel
24 that the risks outweighed the benefits but the weight --
25 MS. VOGLEWEDE: The risk.

109

1 THE WITNESS: I'm sorry, thank you.
2 The benefits outweighed the risks, but the
3 magnitude of that weight was not so great that the
4 statement could be made that this is something that we
5 would advocate for every child.
6 BY MR. BAER:
7 Q. Okay. Could you point me to the committee's
8 statement that suggests the benefits outweigh the risks,
9 Dr. Kaplan?
10 A. It says existing scientific evidence.
11 Q. Where are you now, Doctor?
12 A. I'm on page 691 under Summary and
13 Recommendations.
14 Q. Okay.
15 A. "Existing scientific evidence demonstrates
16 potential medical benefits of newborn male circumcision.
17 However, these data are not sufficient to recommend
18 routine neonatal circumcision."
19 Q. Okay. Where does it say the benefits
20 outweigh the risks?
21 A. It doesn't say that exactly.
22 Q. Okay.
23 A. Okay.
24 Q. It doesn't say it at all, does it?
25 A. If the risks outweighed the benefits, then

110

1 the committee would have not stated that there were
2 potential benefits. If the risks outweighed the
3 benefits -- if the risks outweighed the benefits, then
4 the committee would have said this is a procedure that
5 cannot be recommended under any circumstances.
6 Q. Well, that's just your speculation, isn't it?
7 A. No, I was part of the deliberation of the
8 committee, and I think I know the tenor of the committee
9 fairly well.
10 Q. I understand that. But even your own
11 statement that you just read -- it says that existing
12 scientific evidence demonstrates potential medical
13 benefits. It doesn't say medical benefits. It says
14 "potential" medical benefits.
15 A. Well, the -- since you cannot identify which
16 child will have a urinary infection or which child will
17 develop cancer of the penis or which child will have
18 difficulty with phimosis or paraphimosis or
19 balanoposthitis or which child will become diabetic and
20 have problems with infections under his foreskin in the
21 future.
22 You can't -- all you can say is that there
23 are to the group potential benefits.
24 Q. Okay. All right. You say there are potential
25 benefits.

111

1 A. Right.
2 Q. But you say those benefits are not sufficient
3 weighed against the risks to recommend routine infant
4 male circumcision, right?
5 A. That's correct.
6 Q. So to put it to you again, if the risks are
7 small --
8 A. Uh-huh.
9 Q. -- the benefits must also be small?
10 MS. VOGLEWEDE: Objection, repetitious.
11 A. No, that's not true. If I --
12 BY MR. BAER:
13 Q. Tell me where my logic is wrong.
14 A. Your logic is wrong because if I knew that
15 you as an individual were likely to develop cancer of
16 the penis, if I had that ability, then even though it is
17 of no benefit to you at this moment, I would recommend
18 to you that you should be circumcised.
19 The difficulty is that I cannot identify you
20 as an individual who might develop cancer of the penis.
21 And, therefore, I have to look at the population as a
22 whole, and we recognize that the incidence of cancer of
23 the penis is relatively small.
24 The -- but that doesn't mean that the risk is
25 not there -- that the potential benefit is not there,

112

1 actually.
2 Q. I'm trying to understand the logic. If you
3 say the benefits are much greater than the risk, why
4 wouldn't you have said we recommend it?
5 A. Because, again, everything in medicine is
6 weighing relative benefits and risks.
7 If I say to you you have an upper respiratory
8 infection and there is -- and I'm not sure that an
9 antibiotic will do you any good but I don't think it
10 will do you any harm, and you appear relatively sick,
11 I'd probably give you the antibiotic because there I'm
12 weighing the benefit against the risk.
13 On the other hand, if I looked at you and
14 said you have an upper respiratory infection, you look
15 pretty sick, but the only drug that I have to give you
16 is very, very risky and I don't know that you need that
17 drug, I probably would not give you that drug, and
18 that's -- that's typical medical thinking about any
19 intervention, under any circumstances.
20 Q. But as a collective body, you reviewed all of
21 the literature? You spent, what, a year and half or two
22 years on this project?
23 A. Uh-huh.
24 Q. How long?
25 A. I don't remember exactly, but it's probably

113

1 about a year and a half.
2 Q. Okay. You spent all that time going over the
3 literature, and you came down with a conclusion that the
4 literature was not sufficient to recommend routine
5 infant male circumcision, right?
6 A. No. I'm sorry, the -- to come out with -- a
7 positive recommendation with regard to infant male
8 circumcision yes, that's true.
9 Q. I'm trying to understand, then, your
10 statement that the benefits outweigh the risks, not on
11 an individual standpoint. I'm talking about this group
12 that you were sitting on as a recommendation from
13 pediatric -- pediatricians representing the American
14 Academy of Pediatrics. You came out with a
15 recommendation there is not sufficient evidence to
16 recommend it. Why can you sit here and say the benefits
17 outweigh the risks?
18 A. Because I believe that and I believe --
19 Q. You disagree with this statement?
20 A. No, I do not disagree with the statement. I
21 believe that the statement says that, too.
22 Q. All right. What's the incidence of breast
23 cancer in women?
24 A. I actually don't know. I know it's a
25 relatively common tumor, but I can't quote you a number.

114

1 Q. Is it much more common than cancer of the
2 penis?
3 A. Yes.
4 Q. If you remove the breast buds from an infant
5 female, would you do away with breast cancer?
6 A. Probably.
7 Q. There is no movement afoot to advocate
8 prophylactic removal of breast tissue of infant girls to
9 cure or treat breast cancer, is there, to your
10 knowledge?
11 A. No. But certainly in adult women who are at
12 high risk for certain types of breast cancer, that is a
13 therapeutic option that is exercised by those women.
14 Q. Sure. There should be nothing wrong -- even
15 the Federal law and FGM allows people of age to make
16 those decisions, and it's not a crime to do genital
17 mutilation on a consenting adult?
18 A. I would disagree. I believe that that is
19 incorrect. I believe that there were cases in Ohio
20 where that was tested and that kind of surgery was found
21 to be illegal.
22 Q. Here is a FGM statement from the AAP, which
23 you're a member, 9. It says, "FGM is illegal and
24 subject to criminal prosecution in several countries,
25 including Sweden, Norway, Australia, and United Kingdom.

115

1 In 1996 Congress enacted legislation to criminalize the
2 performance of FGM by practitioners on female infants
3 and children or adolescents younger than 18 years and to
4 develop educational programs at the community level and
5 for physicians about the harmful consequences of the
6 practice."
7 You were aware of that, weren't you?
8 A. Yes, right. That does not say that it
9 permitted mutilation of adult women, even consenting
10 adult women.
11 Q. There is no law that says you can't perform a
12 sex change operation, is there?
13 A. No, there is no law that says that you can't,
14 but you need to have very good supporting psychiatric
15 evidence to support your decision.
16 Q. Sure. An adult woman can decide if she can
17 find a practitioner to perform it to have a
18 clitordectomy performed?
19 MS. VOGLEWEDE: I'm going to object to this
20 whole line of questioning. It's a legal issue, not a
21 medical one, apparently, that you're asking about, not
22 to mention the lack of relevance.
23 BY MR. BAER:
24 Q. Do you believe that an adult woman would have
25 the choice to say I want a clitordectomy?

116

1 A. No.
2 Q. Are you aware of that practice in mainstream
3 medicine of doing clitordectomies to prevent women from
4 playing with themselves?
5 A. No.
6 Q. Never heard of it?
7 A. No.
8 Q. Never read about it?
9 A. No.
10 Q. Dr. Kaplan, I've been given a little bit of
11 information about what your opinions are going to be in
12 this case involving the case of Josiah Flatt versus Dr.
13 Kantak and the MeritCare Medical Group, and you indicate
14 at least in the disclosure that I've received that you
15 will testify about neonatal circumcision.
16 A. Correct.
17 Q. What do you plan to talk about?
18 A. Well, it depends on what I'm asked.
19 Q. Okay. Well, this is a disclosure apparently
20 about what opinions you're going to give.
21 Are you going to give any opinions about
22 whether or not the circumcision was performed
23 appropriately?
24 A. In this particular case?
25 Q. Yes.

117

1 A. Yes.
2 Q. Are you going to give opinions about whether
3 or not there was appropriate information given to meet
4 the standard of care on informed consent?
5 A. Yes.
6 Q. Are you going to give an opinion about
7 anything else?
8 MS. VOGLEWEDE: Objection to the form of the
9 question.
10 A. As I said, it depends on what questions I'm
11 asked, what further information comes forth in the case.
12 BY MR. BAER:
13 Q. Well, what have you been asked to give
14 opinions on? Let's put it that way.
15 A. I've been asked to render an opinion as to
16 whether or not I thought the care that this child
17 received met the standard of care, and it's my opinion
18 that it did.
19 Q. Okay. And how did you become aware of the
20 standard of care --
21 A. I believe --
22 Q. -- in Fargo, North Dakota?
23 A. I believe I've already testified to that,
24 that I believe it is a national standard, and that
25 certainly this would meet that.

118

1 Q. I'm sorry, do you need some more time?
2 MS. VOGLEWEDE: I just wanted him to have the
3 same document in front of him if you have any more
4 questions about that.
5 MR. BAER: And I want to give him the time to
6 read it. That's all.
7 A. Okay.
8 BY MR. BAER:
9 Q. You have reviewed the deposition of Dr.
10 Kantak, right?
11 A. Yes.
12 Q. You've reviewed the deposition of Anita
13 Flatt?
14 A. Yes.
15 Q. And you've reviewed the depositions of all of
16 the nurses who were in any way associated with the care
17 of Josiah Flatt?
18 A. I've reviewed the deposition of a number of
19 nurses. I don't know whether it's all of the nurses.
20 Q. Okay. All right. But whoever I've deposed,
21 you've reviewed those depositions?
22 A. I believe that's true.
23 Q. You would agree, would you not, Dr. Kaplan,
24 that Sunita Kantak does not have any recollection of
25 speaking with Anita Flatt at all?

119

1 A. Any direct recollection?
2 Q. Yes.
3 A. Yes.
4 Q. You would also agree that none of the nurses
5 remembered speaking with Anita at all?
6 A. May I?
7 Q. I want to get a copy of those.
8 A. I'll be happy. I think that's a correct
9 statement.
10 Q. The only person who had a recollection of the
11 interaction between Dr. Kantak and Anita Flatt was Anita
12 Flatt, right?
13 A. In terms of recollection?
14 Q. Yes.
15 A. That's true.
16 Q. And I take it you would agree that if you
17 assume Anita Flatt has an accurate verbatim recollection
18 of the interaction between Dr. Kantak and her with
19 regard to the risks and benefit of the circumcision,
20 that that would not meet the standard of care?
21 A. Would you repeat that question?
22 (Question was read)
23 A. Firstly, I don't know I would make that
24 assumption, that her recollection is -- I think you
25 characterized it as verbatim.
120


1 And if you're asking whether her recollection
2 would meet the standard of care, that's a different
3 question from whether or not the standard of care was
4 actually met in this case.
5 BY MR. BAER:
6 Q. I'm not asking you to opine on the standard
7 of care met. I know what your answer is to that.
8 I'm asking you now to assume that Anita Flatt
9 has an accurate recollection of the interaction between
10 Dr. Kantak and her as it related to the risks and
11 benefits of circumcision.
12 Would you agree that the limited information
13 she obtained would not meet the standard of care?
14 MS. VOGLEWEDE: Objection, asked and
15 answered. Go ahead.
16 A. I don't believe I can make that assumption
17 based on other information that I have reviewed.
18 BY MR. BAER:
19 Q. Okay. Are you just -- I mean does your mind
20 not allow you to make that assumption? What if you
21 assume --
22 MS. VOGLEWEDE: I object, Mr. Baer. That's
23 argumentative. He explained why he can't make that
24 assumption. You are simply --
25 MR. BAER: I don't think he did.

121

1 MS. VOGLEWEDE: He did. He said he can't
2 make that assumption based on other information he has
3 reviewed. You are simply arguing with him.
4 BY MR. BAER:
5 Q. Are you telling me, Dr. Kaplan, that you
6 cannot make an assumption that Anita Flatt is telling
7 the truth?
8 MS. VOGLEWEDE: That was not his testimony.
9 A. No.
10 BY MR. BAER:
11 Q. What are you saying, then?
12 A. What I'm saying is that Ms. Flatt did testify
13 to certain things.
14 Q. I want you to assume she is telling the
15 truth.
16 MS. VOGLEWEDE: Just let him finish.
17 A. I will assume that that is her recollection.
18 I will not necessarily assume that that is exactly what
19 transpired.
20 BY MR. BAER:
21 Q. Okay. What if you were to assume that is
22 exactly what transpired? Would that meet the standard
23 of care?
24 A. I can't make that assumption based on other
25 evidence that is available in documents that I've

122

1 reviewed.
2 Q. Let's go to that other evidence in documents
3 you've already reviewed. What other evidence?
4 A. There is a signed statement by Dr. Kantak
5 that she went through an informed consent procedure.
6 There is a statement that it is standard in the hospital
7 that patients are given the documents that you have
8 sitting before you, and there is a statement by the
9 nurses that this was done.
10 There is a statement by one of the other
11 nurses who has no specific recollection of this case but
12 who has been with Dr. Kantak at other informed consent
13 decisions -- informed consent discussions about
14 circumcision, who characterizes her as very thorough and
15 very patient. All of this seems to contradict Ms.
16 Flatt's memory.
17 Q. Anything else?
18 A. No, not -- I think that's most of it. There
19 may be others, but...
20 Q. Wouldn't you agree that Dr. Kantak doesn't
21 remember any interaction?
22 MS. VOGLEWEDE: Objection, repetitious.
23 BY MR. BAER:
24 Q. Right?
25 A. Yes.

123

1 Q. The nurses don't recollect any interaction,
2 right?
3 A. Yes.
4 Q. The nurses don't recollect giving the
5 pamphlet to Anita Flatt, right?
6 A. Yes.
7 Q. So what you're saying is you believe Dr.
8 Kantak and these nurses over Anita Flatt's recollection?
9 A. No, because there are -- there is supporting
10 documentation in the chart that these things occurred.
11 Q. Okay.
12 A. And it was all contemporaneous with the
13 event.
14 Q. How do you know it was contemporaneous with
15 the event?
16 A. Well, I don't believe -- no one has shown me
17 evidence that the record has been doctored in any way.
18 Q. Showing you Exhibit 4, is Exhibit 4 the
19 document you say that contains a signed informed consent
20 statement by Dr. Kantak?
21 A. It says that she did, yes.
22 Q. It doesn't give any information about risks,
23 does it?
24 A. No. It's not --
25 Q. It doesn't give any information about


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ASAP COURT REPORTING, INC. (800) 490-6587

George Kaplan, M.D. - 2/26/02

1 benefits, does it?
2 A. It is not necessary that the statement
3 totally characterize the whole discussion. It says that
4 she did it.
5 Q. Where does it say that?
6 A. It says risks of local anesthesia and
7 circumcision discussed, procedure described, parent
8 expresses understanding.
9 Q. That's a printed form, isn't it, and her
10 signature is down below, right?
11 A. Yes, that's true.
12 Q. Is there a time when that was done on there?
13 A. I don't see one.
14 Q. Is there a date?
15 A. Yes, March 6th.
16 Q. Do you know what time the circumcision was
17 done?
18 A. I believe it was done in the morning. I
19 think it was the morning of the 7th.
20 Q. You mentioned also the pamphlet --
21 A. Right.
22 Q. -- Exhibit 2, which is the pamphlet "Should
23 Your Infant Boy Be Circumcised, An Informational Guide
24 For Parents."
25 You've seen that before, haven't you?


125
1 A. Yes.
2 Q. Do you know who drafted it?
3 A. No.
4 Q. Have you reviewed it?
5 A. Yes, I have.
6 Q. And in your opinion is it adequate to meet
7 the standard?
8 A. I think it's adequate to start a reasonable
9 discussion.
10 Q. And what information do you have that Anita
11 Flatt obtained a copy of that pamphlet?
12 A. Let me just double-check my notes here.
13 There is a note in the mother's chart dated
14 March 7th that she was -- I'm sorry, that's the book on
15 circumcision care.
16 I'm not finding what I am looking for, but
17 there is a -- here it is. Here it is. That in the
18 policy and procedures of the family birth center the
19 nurses are instructed to have the parents read the
20 section on circumcision in the infant care book, which
21 isn't quite this book, but it is a piece of this, and it
22 starts the informed consent discussion.
23 If indeed those things happened, that's the
24 hospital's policy, which apparently was adhered to, then
25 I think that -- that's further evidence that this

126

1 actually transpired.
2 Q. Showing you Exhibit 6, that's the policy and
3 procedure manual that you're referring to, isn't it?
4 A. Right.
5 Q. Where does it say that --
6 A. No, no. Not this one. There is another one
7 that precedes this.
8 Q. Maybe you can find it in your documents.
9 A. I'll see if I can find it.
10 Q. I haven't seen it.
11 A. I'm pretty sure there is another one here.
12 I'm sorry, it is this one, but it's here in terms of
13 preparation and procedure, which means before the
14 procedure is don
15 Q. Yeah.
16 A. It says have the parents read the section on
17 circumcision in the Infant Care Book.
18 Q. Okay. How do you know it was done?
19 A. The -- somewhere it says that they -- the
20 infant's chart -- the baby's chart -- here we are. I'm
21 sorry this is taking time. There are two entries. One
22 says that they -- on the 7th that they followed the
23 circumcision policy from 0700 to 1500.
24 Q. Of what day?
25 A. Of the 7th. That's the day of the

127

1 circumcision.
2 Q. Okay.
3 A. The circumcision wasn't done at 0700. At
4 least I don't think it was. And if indeed the policy
5 was followed, it should mean the mother had read that
6 brochure.
7 Q. Okay.
8 A. And also on this form, which I thought was
9 dated the 6th, but I don't find it.
10 Q. Can we just identify the number of that?
11 A. Page 24.
12 Q. Okay.
13 A. And page 9, which I had thought was the --
14 was dated the 6th, but I don't see a date on here; so I
15 can't -- wait a minute. That's a birth date but is --
16 it obviously is an early admission document on to the
17 nursery.
18 Q. What does it say?
19 A. It says that -- it has a note that says circ,
20 C-I-R-C, and it has questions, topic taught,
21 understands, or evidences understanding.
22 Q. Isn't that a discharge?
23 A. No, I don't think this is a discharge,
24 because this talks about the -- having had this in
25 Lamaze and --

128

1 Q. Where does it say about in Lamaze?
2 A. (The witness indicated.)
3 Q. Doesn't say anything about circ. in Lamaze,
4 does it?
5 A. No, but because it talks about something in
6 Lamaze.
7 Q. What does it say?
8 A. Assessment.
9 Q. A follow-up summary, doesn't it? A follow-up
10 wouldn't be the initial one, would it?
11 A. I didn't say it was the initial thing, but I
12 thought --
13 Q. Other than those two references, you have no
14 indication that Anita Flatt received a copy of that
15 booklet, do you?
16 A. No.
17 Q. So you're basing your opinion on assumptions
18 that the MeritCare employees followed the policy and
19 procedure, right?
20 A. Right.
21 Q. You're basing your assumption on the
22 truthfulness of Dr. Kantak?
23 A. In that -- in that the statement was signed,
24 yes.
25 Q. What statement was signed?

129

1 A. That she did indeed have an informed consent
2 discussion with the parent.
3 Q. But you don't know what took place?
4 A. No, I don't.
5 Q. So in order to give your opinion, you're
6 assuming that what Dr. Kantak said in her deposition
7 that she would normally do was done, right?
8 A. Because there is some supporting evidence to
9 back that up. Yes.
10 Q. Where is the supporting evidence to back that
11 up?
12 A. I've already said that.
13 Q. Besides those two references.
14 A. And the signed statement that she did it.
15 Q. Okay.
16 MS. VOGLEWEDE: You mean the one in the
17 medical record?
18 THE WITNESS: Right, plus the mother having
19 signed permission without asking any further questions.
20 BY MR. BAER:
21 Q. Look at Exhibit 5. That is the Consent for
22 Surgery, Special Procedure and Anesthesia.
23 Is it your opinion that she signed it without
24 having any further questions?
25 A. Yes. That's -- I don't see anything here
130

1 that says that she didn't -- that she had questions.
2 Generally patients who have questions will hold off on
3 signing consents until such time as their questions are
4 answered.
5 Q. Do you remember reading Anita Flatt's
6 deposition indicating that she had questions and the
7 doctor -- or the nurse said you'll have to ask the
8 doctor those?
9 A. Yes, I do.
10 Q. Now, an LPN isn't authorized to give informed
11 consent, is she?
12 A. No, but she is authorized to be a witness.
13 Q. And this LPN said she wasn't there when the
14 doctor was there. You remember that?
15 A. No. She is witnessing the mother's
16 signature.
17 Q. But that's all this is, Exhibit 5 -- all this
18 is is a signature of the mom, right, isn't it?
19 A. Right.
20 Q. Informed consent?
21 A. It is -- it's evidence that the mother
22 consented. It does not prove that the informed
23 consent --
24 Q. Was given?
25 A. -- occurred, but it does show that the mother

131

1 consented to the procedure.
2 Q. Is this one of the documents that you were
3 railing against in your 1977 article about unfortunately
4 these consents are buried in sheaves of paper as moms
5 are going to the delivery room without talking to a
6 doctor?
7 A. Yes, but this one wasn't buried in those
8 sheaves of paper, because this was post-partum. The
9 baby was already born a number of hours before.
10 Q. I understand that. The only evidence you
11 have to base your opinion that the standard of care was
12 met is Dr. Kantak's testimony, and then you say it's
13 supported by other evidence, right?
14 A. That's correct.
15 Q. But the only evidence you're pointing to is
16 Dr. Kantak's testimony?
17 MS. VOGLEWEDE: I'll object to the form.
18 A. No, that's --
19 MS. VOGLEWEDE: It mischaracterizes his
20 opinion. He's already described in answer to detailed
21 questions other bases for his opinions.
22 A. It -- it's true that my opinion is based in
23 part on Dr. Kantak's deposition, but largely because
24 there is supporting documentation in the chart.
25 BY MR. BAER:
132

1 Q. You believe her instead of Anita?
2 A. Because the supporting documentation supports
3 Dr. Kantak's position, as opposed to Ms. Flatt's.
4 Q. These are preprinted forms?
5 A. I understand that. But it is her signature.
6 At least I assume it is her signature.
7 Q. Dr. Kantak's signature?
8 A. And Ms. Flatt's, too.
9 Q. Sure, sure. But the point is not -- we are
10 not disputing that isn't her signature, Dr. Kaplan. The
11 point is Anita Flatt said she wasn't told anything about
12 circumcision or very little about circumcision.
13 MS. VOGLEWEDE: I'm objecting that's not a
14 question, and it's simply argument. You're here to ask
15 questions, Mr. Baer.
16 I object on the grounds you're simply arguing
17 with the witness. If you have a question, please ask.
18 Wait till he asks a question.
19 THE WITNESS: Yes, ma'am.
20 BY MR. BAER:
21 Q. Don't you have to assume and the
22 underpinnings of your opinion are that Anita Flatt is
23 mistaken as to her recollection?
24 A. In part, yes.
25 Q. What do you mean in part?
133

1 A. Because there are other things that support
2 other parts of my opinion, as I've already testified.
3 Q. There is some preprinted forms with
4 signatures?
5 A. That's correct.
6 Q. Okay. I don't know if you answered the
7 question fully about whether or not Exhibit 2 would meet
8 the standard of care for informed consent. I believe
9 you testified that it would be a good place to start
10 from for discussion purposes.
11 But I want to know does Exhibit 2 meet the
12 standard for informed consent, the document entitled
13 Should Your Infant Boy Be Circumcised?
14 A. That in and of itself would not.
15 Q. And there is no place on Exhibit number 2
16 that contains Anita Flatt's signature, is there?
17 A. No.
18 Q. And there is no place in the medical records
19 that you are able to find that this specific pamphlet,
20 Should Your Infant Boy Be Circumcised, was
21 hand-delivered to Anita Flatt, is there?
22 A. No, but there is evidence in the procedures
23 and policies of the institution that a pertinent portion
24 of another pamphlet which talks about the care of a
25 circumcision, which is part of this -- an important part

134

1 of this pamphlet was given to Ms. Flatt.
2 Q. And that evidence was a preprinted form that
3 said circumcision policy followed from 700 to 1500,
4 whatever it is?
5 A. And knowing what the policy is, that's
6 correct.
7 Q. That's what you're basing that on, right?
8 A. Yes.
9 Q. There is no handwritten signature on that, is
10 there?
11 A. No. No.
12 Q. And that as far as you could tell is just a
13 computer printout?
14 A. Yes, it is a computer printout.
15 Q. Okay. There is no handwritten nurse's note
16 indicating that they started the circumcision policy at
17 700 hours is there?
18 A. There is no note one way or the other.
19 Q. So the only thing you can conclude is that
20 that record says circumcision policy 700 to 1500?
21 A. Right.
22 Q. Now, after the AAP statement of March of 1999
23 was released, Wiswell, Schoen, and Moses wrote a
24 responsive article, didn't they --
25 A. Yes, they did.
135


1 Q. -- criticizing your task force, indicating
2 that you're biased in favor of the no circ. crowd and
3 criticizing your findings, right?
4 A. Yes.
5 Q. And that article was published, and you were
6 offered then an opportunity to respond to that article,
7 weren't you?
8 A. The --
9 Q. The committee was?
10 A. The committee was, yes.
11 Q. And I'll show you what has been marked as
12 Exhibit 16, which is entitled Circumcision Debate,
13 published I don't know where, but it just says
14 Circumcision Debate. Perhaps it's the AAP Pediatrics.
15 A. It's in Pediatrics.
16 Q. And if you need to take a moment to review
17 it, feel free to do that.
18 A. Okay.
19 Q. And was the response to the Schoen, Wiswell,
20 and Moses article a collective response of the
21 committee?
22 A. Yes, it was.
23 Q. And did you identify the writers of the
24 article, criticizing the policy statement as being
25 pro-circ --
136

1 A. Yes.
2 Q. -- individuals?
3 A. Right.
4 Q. And you even stated that, "These authors
5 would have preferred a report recommending routine
6 circumcision for all newborn males and base their
7 assessment of the Task Force report on this advocacy
8 position"; is that right?
9 A. That's right.
10 Q. And you went on to explain in the third
11 paragraph that, "The process of informed consent in all
12 pediatric cases should include a complete explanation of
13 the benefits and risks of any procedure"?
14 A. Right.
15 Q. "When a procedure or treatment is not
16 essential to the child's current well-being, a parent
17 has no obligation to consent to it"?
18 A. Correct.
19 Q. "Circumcision falls into that group of
20 procedures that have potential medical benefits and some
21 risks and should be evaluated by each family in the
22 context of their personal beliefs and values, as well as
23 their ethnic, cultural and religious practices." Do you
24 see that?
25 A. Yeah.

137

1 Q. Does it say in there at all that it has more
2 benefits than risks?
3 A. I get back to what I said before, that there
4 are benefits, there are risks.
5 It was the -- it was the opinion of the
6 committee that there were benefits that outweighed the
7 risks, but they were not so compelling as to recommend
8 routine circumcision.
9 Drs. Wiswell, Schoen, and Moses feel that
10 they are compelling enough to recommend it. Obviously
11 others feel the other way. The -- I think if you go on,
12 the task force contains a balanced discussion of the
13 benefit of the procedure, as well as the risks and --
14 Q. I want to come back again. Does the
15 statement at all say the benefits outweigh the risks?
16 A. It does not say that in so many words, but it
17 does say that. Otherwise it would have been a statement
18 in opposition to the practice.
19 Q. There is no such thing as it could be equal?
20 A. Almost none, because if there -- if there is
21 a benefit to be had and nothing adverse happens, then
22 the benefits always outweigh the risk.
23 If there is an adverse event and no benefit
24 to be had, then there is always -- it's always
25 outweighed by the risks.

138

1 Q. So how could you ever get to a neutral
2 position?
3 A. You can't, because for an individual patient
4 there is no way that you can come to a neutral position.
5 Q. Isn't that what the AAP statement is?
6 A. No, it is not a neutral position.
7 Q. All right. What you say is -- in that same
8 paragraph that I was referring to, you say, "The task
9 force respects the role of the parents as
10 decision-makers for their newborns and recommends that
11 physicians discuss with parents the potential benefits
12 as well as risks of circumcision so that parents can
13 decide whether circumcision is in the child's best
14 interests."
15 A. Correct.
16 Q. You would agree that it's the child's best
17 interest that needs to be followed?
18 A. That's correct.
19 Q. Right?
20 A. As interpreted by the parent.
21 Q. I want to show you what's been marked Exhibit
22 3. I'll represent to you that is the note of the
23 surgical procedure.
24 Have you seen it before?
25 A. Yes, I have.

139

1 Q. Can you read it?
2 A. Yes.
3 Q. Why don't you read it into the record.
4 A. Dated 3-7-97, "Circ performed with one
5 percent lidocaine without any problems, tolerated well.
6 Physical examination negative. Continue present care."
7 It's signed -- I think that signature is Dr. Kantak's
8 signature.
9 Q. Would this be sufficient to standards of a
10 surgical note in your practice?
11 A. This is not that kind of surgical procedure.
12 It would -- it certainly meets the standard of care for
13 this type of surgical procedure.
14 Q. Can you answer my question, Dr. Kaplan?
15 A. I believe I answered your question.
16 Q. Would this type of operative note meet the
17 standard of care for your practice?
18 A. If I had performed a newborn circumcision, it
19 would meet the standard of care for that procedure.
20 Q. Are you familiar with the JCHO --
21 A. Yes, I am.
22 Q. -- standards?
23 A. Yes, I am.
24 Q. Are there certain requirements for records
25 for surgery?

140

1 A. For surgical procedures performed in the
2 operating room.
3 Q. Where does it say in the JCHO it has to be in
4 the operating theatre?
5 A. It does not, but in every accredited hospital
6 in which I have worked this note would satisfy the
7 standard of care for a newborn circumcision.
8 Q. Is there a time of beginning on this note?
9 A. No.
10 Q. Is there a time of end?
11 A. No.
12 Q. Is there a description of the procedure?
13 A. No.
14 Q. All of those would be required in a surgical
15 note?
16 A. In a formal dictated surgical note for a
17 procedure performed in the operating room.
18 Q. How about a procedure performed in a clinic
19 that's not in the operating room? Same policies apply,
20 don't they?
21 A. No, they don't.
22 Q. You still have to have time of operation,
23 beginning --
24 A. No.
25 Q. -- ending?

141

1 A. No.
2 Q. You sure about that?
3 A. I'm positive about that.
4 Q. So when you have -- do you have inpatient
5 surgery here in your clinic?
6 A. No.
7 Q. You go to the hospital to do that?
8 A. That's correct.
9 Q. I'll mark your current CV as Exhibit 18, and
10 just for the record this is the CV you gave us this
11 afternoon?
12 A. That's correct.
13 (Deposition Exhibit 18 marked for
14 identification)
15 BY MR. BAER:
16 Q. And that's the current CV that you have?
17 A. Yes, it is.
18 Q. I'll show you what has been marked Exhibit
19 15.
20 Have you seen that before, Dr. Kaplan?
21 A. I'm not sure whether I have or not.
22 Q. Would that be a typical charge for a
23 circumcision?
24 A. Actually there are no CPT codes on here, so
25 I'm not sure which specifically is the charge for the

142

1 circumcision. I'm assuming -- I have to assume.
2 Actually I can't assume. I don't know. Any of those
3 numbers I can testify are certainly lower than the usual
4 charge at least in this community by pediatricians for
5 newborn circumcision.
6 Q. What is the typical charge here in this
7 community?
8 A. In this community it's a low of perhaps $150
9 and a high of 350.
10 Q. That's only for the physician's charge?
11 A. That's correct.
12 Q. And then there would be hospital charges on
13 top of that?
14 A. These are often now performed in the
15 pediatrician's office, so there wouldn't be any hospital
16 charges on top of that.
17 Q. How about material charges?
18 A. I don't know.
19 Q. Now, you indicate in your opinion, getting
20 back to that just for the moment, that there was no
21 indication Mrs. Flatt was in great pain at the time she
22 signed the consent or that she did not have the ability
23 to consent due to the effects of medication.
24 A. Correct.
25 Q. And you base that on the fact that she was

143

1 not prescribed anything stronger than Tylenol or -- what
2 was it -- Tylenol three?
3 A. It was Tylenol -- she had two different
4 medications. I'd have to look back again. It's been a
5 bit.
6 Q. They are in your notes. Where are your
7 notes?
8 A. Buried here. Thank you.
9 She got Ibuprofen and Tylenol.
10 Q. Anything other than that that you base your
11 opinion on that there was no evidence she was in great
12 pain at the time she signed the consent?
13 A. Nurses notes didn't record that she was in
14 pain.
15 Q. And what is the significance about the time
16 she signed the consent, because from all indications she
17 signed it about 7:20 in the evening?
18 A. Correct.
19 Q. What's the significance of that?
20 A. Just that she signed it before the procedure
21 was done.
22 Q. Okay.
23 A. And that there was, you know, time to ask
24 questions should she want to do so.
25 Q. Now, you also have -- or I've been disclosed

144

1 you're going to opine that the circumcision was
2 performed properly.
3 Upon what do you base that opinion, Dr.
4 Kaplan?
5 A. Mostly upon the videotape and seeing the end
6 result.
7 Q. How about did you review the medical records
8 of Dr. Sawchuk, urologist --
9 A. Yes, I did.
10 Q. -- that say Josiah had and he lysed a -- was
11 it a skin tag or something?
12 A. No, it wasn't a skin tag. It was what I
13 called a physiologic adhesion.
14 Q. And that's caused by what?
15 A. Those happen very frequently. They are the
16 same -- we talked about this earlier in the
17 uncircumcised boy. Just as in -- there is no space
18 between the inner aspect of the foreskin and the glans
19 penis. That's freed up to do a circumcision. But
20 sometimes even in the uncircumcised it temporarily
21 reattaches, but then over time it will separate on its
22 own. Had he not done that, it would have taken care of
23 itself.
24 Q. Obviously there was a concern about
25 asymmetry, right?

145

1 A. On the mother's part?
2 Q. Yes.
3 A. Yes.
4 Q. And that would have been -- the asymmetry
5 would have been caused by the circumcision procedure
6 itself?
7 A. No. In this instance it's my opinion based
8 on the videotape that the asymmetry to which she was
9 referring was actually -- I hate to use the word cause,
10 but produced by perhaps that adhesion that Dr. Sawchuk
11 broke up, because in the videotape, which obviously was
12 done sometime shortly after that procedure, you can see
13 the area where the adhesions were present, and I don't
14 see any evidence of asymmetry at that point.
15 Q. Well, didn't Dr. Sawchuk describe asymmetry
16 in his medical records?
17 A. Before he lysed the adhesions, yes.
18 Q. So you're refuting Dr. Sawchuk's opinion that
19 there was asymmetry?
20 A. I am refuting his opinion that in -- that
21 there would have been an asymmetrical outcome, if you
22 will, eventually. I don't know whether that's his
23 opinion. I don't think that was specifically asked.
24 Q. You read in the deposition, no doubt, of Dr.
25 Kantak that she uses safety pins to perform the

146

1 circumcision procedure?
2 A. Correct.
3 Q. Do you use that?
4 A. Sometimes.
5 Q. A safety pin?
6 A. Yes.
7 Q. What is the accepted procedure to clean
8 safety pins?
9 A. They are sterilized, they are autoclaved.
10 Q. And how do you use a safety pins?
11 A. If I -- if I'm doing a Gomco circumcision and
12 after what's called a dorsal slit has been done and then
13 the bell of the Gomco clamp is placed, it's sometimes
14 difficult to keep things lined up, and putting a safety
15 pin through the tips of that dorsal slit area lines them
16 up so they don't get unaligned as you're placing the
17 rest of the device on.
18 Q. You do two a year. When is the last time you
19 used a safety pin?
20 A. Actually I do more than two a year using a
21 Gomco, because I teach residents and fellows often who
22 don't know how to do this. So throughout the year we
23 will use different forms of circumcision so that I can
24 show them how these procedures are done, and I don't
25 know exactly when the last time I did, but I'm sure it's

147

1 within the last several months.
2 Q. And that's just with a Gomco, it's unique to
3 a Gomco clamp?
4 A. In my practice, yes.
5 Q. Can I just take a moment to --
6 A. Sure.
7 Q. -- look through my notes to see if there is
8 anything else?
9 A. While you're doing that, why don't I make a
10 copy of this for him.
11 MR. BAER: Could you do that?
12 Before we leave, Jane, these are my only
13 copies of the exhibits, and I want to use them tomorrow
14 for Dr. Shoemaker, so what I'd like to do is take them
15 along and we'll have the court reporter there then
16 reproduce them so you have copies of those. Is that
17 okay?
18 MS. VOGLEWEDE: Sure.
19 (Recess was taken from 5:29 until 5:34)
20 MR. BAER: I just have a couple more
21 questions, Dr. Kaplan.
22 Q. Is there a code of ethics developed by the
23 American Medical Association?
24 A. Yes. It's changing periodically, but there
25 is an ethical code.
148

ASAP COURT REPORTING, INC. (800) 490-6587


George Kaplan, M.D. - 2/26/02
1 Q. And is one of those principles that a
2 physician shall respect rights of patients?
3 A. Yes.
4 Q. And in the case of routine infant male
5 circumcision, the patient is the infant, right?
6 A. That's true, but that's mischaracterizing
7 that statement.
8 Q. Okay. How is it mischaracterizing who your
9 patient is?
10 A. Because the patient -- although the patient
11 is the infant, the parent has been given by society the
12 right and responsibility of providing care.
13 Q. Are you aware of the law in the State of
14 North Dakota as it applies to informed consent?
15 A. If there is a specific law, no, I'm not aware
16 of that.
17 Q. Exhibit 11 is a copy of a North Dakota health
18 and safety code statute involving consent, proxy
19 consent.
20 Have you seen that before?
21 A. No. May I take a moment?
22 Q. Sure.
23 A. Okay.
24 Q. Okay. And I don't want to ask you specific
25 questions about it, but just to the -- as it relates to

149

1 your patient -- and your patient you indicated is the
2 infant, right?
3 A. Yes.
4 Q. And the standard that you need to apply as a
5 medical doctor when deciding whether to perform the
6 circumcision is the best interest of the child, right?
7 MS. VOGLEWEDE: Objection, repetitious. It's
8 been asked and answered.
9 A. Yes.
10 BY MR. BAER:
11 Q. And how do you know what the best interest of
12 the child is?
13 A. The -- there are many things that go into
14 that, and that's not a simple yes or no answer.
15 First you look at the medical aspects of
16 things, weigh the risks and benefits of whatever you're
17 thinking about doing.
18 Secondly you need to look at the social
19 context in which this is happening and whether or not
20 it's in the best interests in that context and try to --
21 and then discuss all of this with the responsible adult,
22 who presumably, as the law says, will be making a
23 judgment in the best interest of the child.
24 Q. So a parent who decides to circumcise their
25 child is acting in the best interest of their child and

150

1 a person -- a parent who decides not to circumcise is
2 also acting in the best interest of the child?
3 A. What they believe to be the best interest of
4 their child, that's correct.
5 Q. You as a medical doctor just carry out the
6 wishes of the parent who says I want my son circumcised?
7 A. After discussing the risks and benefits of
8 the procedure with them and if they still come to the
9 same conclusion, then the answer is yes.
10 Q. What if they don't want to hear it, "I don't
11 want to hear all that, just do it"?
12 A. I perform -- I've fulfilled my responsibility
13 as best I can, unless I think that there is some
14 contraindication to the procedure, in which case they'll
15 hear it whether or not they want to.
16 Q. So even if the parents are ignorant and they
17 say I just want him to look like me, you'll do it for
18 that reason?
19 A. That -- I think that's a mischaracterization
20 of what I've said.
21 Q. What if a parent listens to everything you
22 say and says "I don't care what you say, I want him to
23 look like me"? Then do you do it?
24 A. Growing up in that household it will be
25 important for that child to look like daddy, and that

151

1 comes into play in the decision.
2 Q. Why is that important for the child to look
3 like daddy?
4 A. Because the parents think it's important for
5 the child to look like daddy and the parents treat that
6 child differently if he doesn't look like daddy.
7 Q. Where do you get that information? Where do
8 you get information that a parent is not going to -- or
9 going to treat a child differently because he doesn't
10 look like daddy in his penal area?
11 A. I see patients in the office all the time
12 where those are the concerns, and that perhaps is a
13 comment on our society, but that is a reality, and it is
14 something that I think has to come into the equation.
15 There are patients who are intelligent enough
16 sometimes to recognize that this is not important to
17 them, but there are others who feel very strongly about
18 it.
19 Q. Who are not intelligent enough to recognize
20 it?
21 A. Or who are not so --
22 Q. Set in their ways?
23 A. So set in their ways, yes.
24 MS. BAER: Okay. Thank you. I have nothing
25 further.


152

1 MS. VOGLEWEDE: He will read and sign the
2 deposition. Forward it to me, and I'll get it to him to
3 review. Just put an errata and a witness signature
4 sheet.
5 THE REPORTER: Do you want a copy?
6 MS. VOGLEWEDE: I'd like just a condensed and
7 a disk.
8 MR. BAER: I want a full, condensed, and
9 disk.
10 (Whereupon at 5:42 p.m. the deposition was
11 concluded)
12 - - -
13
14
15
16
17
18
19
20
21
22
23
24
25

153


1 ERRATA SHEET
2 I, GEORGE KAPLAN, M.D., do hereby certify under penalty
3 of perjury that I have read the foregoing transcript and
4 that to the best of my knowledge said testimony is true
5 and accurate, with the exception of the following
6 changes listed below
7 Page Line Change and reason for the change
8 ____ _____ ___________________________________________
9 ____ _____ ___________________________________________
10 ____ _____ ___________________________________________
11 ____ _____ ___________________________________________
12 ____ _____ ___________________________________________
13 ____ _____ ___________________________________________
14 ____ _____ ___________________________________________
15 ____ _____ ___________________________________________
16 ____ _____ ___________________________________________
17 ____ _____ ___________________________________________
18 ____ _____ ___________________________________________
19 ____ _____ ___________________________________________
20 ____ _____ ___________________________________________
21 ____ _____ ___________________________________________
22 ____ _____ ___________________________________________
23 ____ _____ ___________________________________________
24 ____ _____ ___________________________________________
25 DATE SIGNATURE

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ASAP COURT REPORTING, INC. (800) 490-6587

George Kaplan, M.D. - 2/26/02

1 STATE OF CALIFORNIA )
2 ) SS.
3 COUNTY OF SAN DIEGO )
4
5 I, KARLA MEYER BAEZ, CSR No. 4506, in and for
6 the State of California, do hereby certify:
7 That, prior to being examined, the witness
8 named in the foregoing deposition, GEORGE KAPLAN, M.D.,
9 was by me duly sworn to testify the truth, the whole
10 truth and nothing but the truth;
11 That I am the deposition officer that
12 stenographically recorded the testimony in the foregoing
13 deposition and that the foregoing transcript is a true
14 record of the testimony given.
15 That I am not financially interested in this
16 action and am not a relative or employee of any attorney
17 of the parties, or of any parties.
18 In witness whereof, I have subscribed my name
19 this 8th day of March, 2002.
20
21
22
23 ________________________________
24 KARLA MEYER BAEZ, CSR NO. 4506
25
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George Kaplan, M.D. - 2/26/02 

 Shoemaker Deposition   Flatt vs. Kantak
 

 

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