Day by Day 2
Flatt v. Kantak Press Coverage
v. Kantak, Legal Briefs
George Kaplan's Deposition
Craig Shoemaker's Deposition
Flatt v. Kantak and Meritcare
legal suit on Informed Consent
Day by Day 1
The Josiah Flatt case began Feb. 3, 2003 in Fargo, ND. The main issue of contention is the
failure of Sunita Kantak, MD, and the Meritcare hospital staff to fully
inform Anita Flatt, mother of Josiah, of the risks and losses that would
be incurred if her son were circumcised, as well as the lack of any
medical purpose for the operation. Anita Flatt says she would not have
allowed her son to be cut had she been informed as standard policy
This case focuses on the what physicians must tell
parents to avoid liability. However, a larger issue that was part of the
ND FGM Suit (dismissed from this
lawsuit) is whether anyone has
the right to ask to have amputated, or to amputate, any normal body
part from anyone who has not given consent. The physician's responsibility
is to his patient, and in the case of circumcision, the
patient is the
child, not the parent. The day is coming, if not here (see
NY Stowell Case), when the rights of children to
decide for themselves whether to have
normal body parts amputated,
will be recognized and respected. The words are already written: See the
American Academy of Pediatrics
position statement on informed consent and physician responsibility.
In pretrial proceedings,
Judge Cynthia Rothe-Seeger denied the use of circumcision surgical tools
and video tapes of circumcisions being performed as evidence in the case.
Attorney Baer questions how the jury can be fully informed of what a
circumcision entails without such evidence.
The judge did open up the courtroom, however, to expanded press coverage,
so there was a camera in the courtroom.
Fargo ND, Mon. 2-3-03. The trial began today with
selection. Fargo sits along the Red River of the North upon one of the
flattest regions in the world. The courthouse is an old rust-brown block
building with the obligatory cupola. Up the marble stairs on the 3rd floor
in a room about 25 by 25 feet with 3 rows of benches for observers, the
proceedings take place, while in a room about half that size press
personal are gathered around monitors and tape recorders. The local
media are there in force. Others are expected. Seems everyone in town has heard of
Three prospective jurors were dismissed in the
morning because they worked at Meritcare, the institution being sued. The
afternoon was taken up with attorney Baer's questioning of jury
candidates. Some of the questions included: Have you any prior jury
experience, if so, how did you feel about it? Do you have any connections
to either law firm representing the plaintiff or defendants? Do you know
any of the possible nurses who will be witnesses? Any of the physicians?
Are you hard of hearing? Poor vision? Have you read or heard anything
about this trial from the media? Have you formed any opinions from the
exposure? Will the expanded coverage by the media make you feel
uncomfortable? Do you have any friends or relatives in the healthcare
business? Ever ask for a second opinion on a medical issue? Has anyone
consented to having a child's ears pierced? Navel? Tattoos? (This brought
the only objection which was sustained.) Anyone have religious reasons for
circumcising a child? None. Anyone have cultural reasons for circumcising
a child? Still no responses!! (Will likely hear more of this later.) Anyone give consent to have a child
circumcised? About half the group had. Then Zenas went into an extended
questioning of how each arrived at that decision? Was it prior to speaking
with a medical person? What was told you about the pros and cons? Cleaner
and look like others. What were some of the cons? No one could think of
any that they were given by medical personal. Are you aware that
circumcising is controversial? No, or, now I am. "Would you be
uncomfortable discussing foreskins, penises and genitalia?" No, this is
2003 to, yes, I'm of the old school (and elderly women said). Did any
physician talk to you about the function of the foreskin? No. The panel of
prospective jurors was split between arriving at the hospital knowing what
they wanted to do, and those who were asked by the hospital staff.
There was a sense that most would do more thinking
about the issue now than when they consented, whether that was in the 50s
or last year. Zenas will continue the questioning tomorrow morning; and
then the defendant's council will ask questions of the panel before the
parties decide on which prospective jurors to use any or all of their four
rejection vetoes. Testimony will likely start on Weds.
Fargo ND, Tues. 2-4-03. Jury selection
continued thruout the morning. On woman said she realized she was
distantly related to Anita Flatt and could not be unbiased; she was
dismissed "for cause." Zenas continued questioning jurors as to whether
they ever had to make the decision to circumcise a child. One reported
what seems to be a common answer when a nurse or doctor is asked why one
should circumcise a child: "They (someone in 'healthcare') said it was the
thing to do," giving little or no additional reason for doing it.
Question: Do think there is harm in losing a foreskin? Hesitation. What
about the loss of a finger. Yes. An earlobe. Hesitation, yes. A foreskin?
No,...unless evidence can show something I don't already know.
Again Zenas asked whether anyone belonged to any group
that have cultural reasons for circumcising. No one said yes, despite that
fact that even medical associations, like the American Academy of
Pediatrics, say there are no medical justifications for cutting health
infants, but there are legitimate cultural reasons. Has
anyone ever been asked to provide consent for a medically indicated
circumcision? No. Has anyone left a male child intact? One person did: he
left twins intact, since no one in his family was cut. (This juror was
later excluded by the defense attorneys by using one of their four
The next line of questioning focused on who one would
tend to believe (if it came down to one's word against another), the patient or a
nurse? The patient or A doctor? All said they had no presumptions.
Question: Have you heard the expression, "If it isn't documented, it
didn't happen"? Yes. Next focus was on Anita Flatt's position and
responsibility. Does the mother's being a lawyer cause a bias? One said
that Flatt should be used to asking questions and should have become informed.
Any problem with a 6-year-old bringing a claim? No. Any problem with a law
that allows a parent to bring a claim on a child's behalf. No. Everyone
was asked to what station his or her car radio was tuned, and
whether she or he considered that she or he as a leader or a follower. All
but two said they were leaders. Many were asked whether they wanted to
serve on the jury. Most, yes; a couple, "not especially." All were asked
where they got their news. One, who had 3 sons at Meritcare over about
years, was asked whether she could separate the procedure regarding the
hospital's information about circumcision presented to her at the three
Then Jane Voglewede, defense attorney, had her chance
to ask questions of the jury pool. She told them a trial requires much
patience, particularly in waiting until all the evidence is in, not just
the presentation by the plaintiff which will come first. She asked them
what they did for a living, and had anyone suggested to anyone else that
they should have a circumcision done on their child. At this point both
sides struck out jurors they did not what, one at a time, until only 10 of
the eighteen were left, nine jurors and one alternate, four men and six
The judge then admonished the jury not to talk, or
allow anyone to talk to them about the case, before adjourning for lunch.
After reconvening, a point of law was raised about the content of the
attorneys' opening statements. The jury was sent out for an hour and a
half while it was discussed before finally sending them home while more
procedural matters were discussed. The defense was concerned that
Plaintiff's attorney would be bringing in witnesses who would discuss the
history of circumcision and procedures that were not done in the Josiah Flatt case. Plaintiff's attorney was concerned that the content of the
defense's opening remarks contained conclusions not established. The judge
again told Zenas that the trial was not a referendum on circumcision, and
only was was relevant to informed consent would be allowed. Zenas
questioned how he could talk about what a fully informed consent would
include if he could not talk about what was done and what was amputated.
All hoped they could get on with witnesses tomorrow.
Fargo ND, Wed. 2/5/03. 12 below zero, wind chill 35
below zero, in Fargo, but things are warming up fast in the ol' town
tonight! The informed consent trial was the top of the 6 o'clock news on
two of the four local TV stations and featured on the others. Similar
sound bites were chosen. Zenas Baer is shown, during his Opening Statement
outlining what the trial will try to establish, pointing out that
circumcision causes lost of erogenous tissue, has risks that include death
and amputation of the penis, diminished pleasure for one and his partner.
Chris Cold, and anatomic pathologist from Wisconsin, is shown with his
drawing board full of diagrams of penises and clamps. But back to the
start of the day.
Cynthia Rothe-Seeger outlined the court procedure for the jurors. Jurors
are not allow to get any information but that presented at the trial,
though they can bring with them what is common knowledge, not about the
case, but about general principles. She said the concluding statement by
the contending parties will try to draw the information together, but it
is not evidence. She said she thought it better to depend on the jury's
"collective recollection" than on anyone's notes--that note-taking could
Zenas pointed out as he
began his Opening Statement that he will provide a roadmap in
general terms of where one is going and what one will likely see. The
plaintiff must prove her case using videos, paper trail, factual witnesses
and expert witnesses. The claim to prove is that Kantak and Meritcare
failed to obtain informed consent from Anita and James Flatt because the
full range of benefits and risks was never presented to her, and when the
consent is proxy consent for someone else, the information must be even
Then Zenas presented a
lengthy outline of the events surround the birth of Josiah Flatt on March
6, 1997 and his circumcision the next day and subsequent concern by Flatt
in weeks following that the circumcision was not done correctly. This
concern caused Jim and Anita to do research on circumcision. The
information they found left them feeling duped. Had they known the risks,
they would never had allowed it to be done.
Zenas said the defense
will claim Anita Flatt was informed before the operation by Kantak of the
what the operation involved. Anita will claim she never say Kantak nor was
ever given any printed matter discussing the procedure.
Plaintiff will present
testimony that an adult foreskin is about a 15 square inches of
complicated tissue filled with fine-touch nerves like that of the
fingertips, that encloses the glans penis keeping it an internal structure, like
all mammals, except when it is erect.
Testimony will show there is
no medical necessity for amputating the foreskin, a claim not disputed by
When Zenas started to
describe Josiah's birth, which apparently was not a "normal" hospital
delivery, to set the stage for Anita's state of mind when she was
presented the consent form, the defense objected again, and the jury was
sent out. The judge ruled that the circumstances around the delivery would
not be discussed. The events between Josiah's birth and the time he was
cut are in dispute: Who said what and when; who gave what to Anita and
when. In the end it looks as if the jury will have to believe Kantak
who supposedly followed a procedure (even though she cannot recall doing
so), or Flatt who claims not to have been given even the routine
Zenas then outlined the
witnesses he will call: Chris Cold (to describe the foreskin and methods
used to amputate it and complications and losses that result; Robert
vanHowe (on pediatric standards, AAP standards and duty to patient rather
than parent), Eileen Wayne (on the legal elements of informed consent),
Anita Flatt (her husband Janes was killed in a car accident a couple years
ago), some nurses at Meritcare, some other M.D.s who treated Josiah.
During a break a jurist
realized that she knew Anita's mother. Another discussion in chambers
resulted in a decision not to dismiss her. Then Jane Voglewede outlined the
defense, claiming Kantak gave sufficient information prior to Josiah's
circumcision to Anita, and, in any case, that Josiah
sustained no injury. She outlined the days and events in contention,
claiming that Josiah was born a healthy baby. She outlined a typical day
for Kantak which included visitation to the nursery and contact with the
parents during rounds. She said Kantak always says the operation is not
medically indicated, that there is controversy over whether to do it, even
mentioning that some say it diminishes sexual pleasure. Finally, all are given
the booklets developed a few months before and written under the direction
of Craig Shoemaker (see ND quotes) who will be one of the defense
She then tied Shoemaker
to the AAP as one of the taskforce members and one, therefore, who has inside
information on what the AAP statement on circumcision says and how it came
about. She then
castigates the proposed expert witnesses for the plaintiff by saying they
don't do circumcisions. She went into a history of the several AAP
statements on circumcision going back to the 70s and ending with their
most recent 1998 statement (which later allowed Zenas to introduce
historical material). She made much of the AAP's promise to provide
a statement that is "evidence based," but then pointed out that the
taskforce also claimed it was legitimate for parents to consider other factors
in making a decision to circumcise (she gave no medical evidence for how
this statement was "evidence based," nor on what grounds a physician could
use the parents' desire to amputate as legitimate grounds for ignoring
what the AAP says elsewhere, namely, that the interests of the child take
priority over that of the parents, and that that interest cannot be dismissed
just because of parental wishes).
Chris Cold was
called to testify. Under questioning, he outlined his background and
publications. He said he was seduced into circumcising his son while a
physician in the Navy and only began to seriously think about the anatomy
of the penis in the mid 90s after being told by a Navy physician that he
had a scar on his penis and reading Taylor's article on foreskin anatomy
in the British Journal of Urology. After another objection from the
defense on the use of slides (with the jury sent out) to illustrate the
anatomy of the foreskin and the procedures to cut it off, the judge
decided to let Cold testify until noon without the slides and determine
during noon hour what to do. She decided to deny their use because they
were not disclosed as exhibits prior to trial. Zenas claimed that they
were not exhibits, but illustrations needed to explain and clarify.
Cold then proceeded to
describe the anatomy of the foreskin and its hard-wiring into the brain. At
the juncture at the end of the normal, intact penis between the inside
mucosa and the outside skin is the ridged band which contains many
specialized fine touch receptors designed to evoke an erection when
stimulated. When "deployed" the juncture moves down onto the penile
shaft exposing all the underlying mucosa. Before 8 weeks from conception,
the fetus' pubic region is not recognizable as male or female. Even at birth the
penis is not generally "mature," meaning that the foreskin is not yet a
separate organ from the glans. It is like the relationship of a fingernail
to the nail bed, and tearing it from the glans is likewise as painful as
tearing up a fingernail. As the penis matures, the foreskin separates from
the glans. Premature retraction (separation) causes sores that can get
The glans penis is
an internal organ that is kept soft and moist by the foreskin's
protection. Once exposed by its amputation, the glans dries up and becomes
hardened and less sensitive. Cold pointed out several ways the amputation
could be carried out: PlastiBell, Gomco Clamp, Mogen Clamp, Shield or
freehand. At which point, the defense objected that there is no need to
discuss any other than the Gomco, the method used by Kantak. Another
huddle at the bench resulted in Judge Rothe-Seeger dismissing the jury
once again. Baer pointed out while the jury was excused, that informed
consent requires that alternatives be presented and that different
procedures result in different amounts of tissue being removed, but the
judge sustained the objection.
Cold proceeded to try to
describe the Gomco procedure with drawings and gestures. Nerves in the
penile shaft try to reconnect, but the nerves they seek to reconnect to no
longer exist so they fan out at the scar and may cause strange sensations
or numbness. The amputation also cuts through the dartos muscle that goes
from the base of the penis to the ridged band. Blood flow is truncated.
The foreskin is a five-layered structure that must be painfully torn from
the glans in order to insert the Gomco bell that protects the glans from
the knife after the clamp has crushed the foreskin against the bell. Here
an attempt was made to introduce the Gomco clamp to help illustrate how
the procedure works. The jury was again sent out. Judge Rother-Seeger
denied the introduction of the clamp as she said she would in pretrial
proceedings. Zenas introduced it anyway, and it was accepted as a court
exhibit but would not be allowed to be seen by the jury. The circumcision tray and its many hemostats, knives, etc.,
were similarly introduced.
Finally, Zenas introduced five photos (taken by John Erickson) showing the movement of the ridged
band down the shaft of the penis until it was nearly at the base of the
penis. Defense then asked that Cold not be allowed to discuss the topic of
pain, but was over-ruled.
The jury came back and
Cold drew a picture of a Gomco clamp and tried to explain how it pulls the
foreskin up allowing the maximum of mucosal tissue to be removed. He
pointed out that the tearing and crushing is very painful and several
methods have been tried to reduce it, though none are completely
successful. He pointed out that the foreskin has several functions,
including protection of the glans so it does not dry out and get
keratinized; that it is highly erogenous tissue; that it provides a
covering for the "deployed," erect penis whereas an erect circumcised
penis may have to little tissue left and be tight and painful.
Baer then introduced Ron
Goldman's work on the psychological effects of circumcision as an exhibit.
The work was accepted, but only for courtroom discussion, not to be sent
to the jury room. Goldman's work discusses the imprinting early pain can
have. Some of the early U.S. history of circumcision from the mid-19th
Century was pointed out, including the fact that circumcision was thought
to make one "cleaner," that is, morally better, not hygienically cleaner.
It would prevent masturbation, club foot, and many other unrelated
conditions. Of course, Cold pointed out, that an organ removed will not be
around to have problems, but most people like their organs. Few women
remove breasts, even those who know they are genetically predisposed to
The English language has
been hijacked, Cold said. "Circumcised" is now considered normal, so
abnormal is "uncircumcised." No one ever says one's normal arm is
unamputated. Cold says the logic of circumcision from the medical
institution's point of view is: We want to sell circumcisions to prevent
so and so, so we can make so and so. That amount is in the hundreds of
millions of dollars a year. At 4:30 his testimony was cut off, and court
dismissed for the day.
Fargo ND, Thurs. 2/6/03. Jurors, witnesses,
attorneys and spectators woke to bitter cold again today in Fargo as Chris Cold
resumed testifying. The court room also held about 10 legal secretary
students assigned to observe the case for a while. I told them they could
get some background by going to BoysToo.com, and was very surprised to be
told they had all done a circumcision search the night before and found
this site to be the most interesting and helpful.
Under questioning from Zenas, Cold said he even has
to obtain permission to cut up cadavers. The purpose of informed consent
is to protect the patient, and the same principles apply across all
medical disciplines. Zenas asked who the patient is in proxy consent, and
what risks must be discussed with the patient. All, Cold replied. This brought a
defense objection. Zenas asked what are the risks of circumcision? 100%
foreskin removed (Gomco method); exposed glans with open wound
contaminated with fecal matter; permanent scar; meatal stenosis; 5%
requiring additional surgery; alteration of sexual function (Winkelman
study); amputated penis and possible conversion to female (Money case);
partial amputation causing hypospadias; death; scar formation that can
become sever causing painful erections, as will cutting off too much
which causes painful erections.
Next hospital and clinic records were introduced, and
questions asked of Cold. Does the consent form state risks or possible
benefits? No. There is also no reason for why the procedure was done since
the surgery has no medical benefits. A patient teaching record form, Cold
continues, is dated the day after the circumcision was done.
Then a booklet on infant care is introduced, and Cold
is asked whether the information it contains on circumcision constitutes informed consent.
No. Cold's comments on the booklet's contents included:
Agrees that circumcision is the most common surgery; but disagrees when
the booklet describes the foreskin as "skin, since it is as much mucosal
tissue with a complicated 5-layered anatomy. He had no problem with
religious cutting, but not as a rite performed by physicians. The mention
of phimosis as reason to cut is wrong since no infant can survive in the
womb if it could not urinate, which they do beginning sometime in the 2nd
trimester. He agrees with the quote from the AAP that they do not
recommend circumcision; Cold said it is misleading to say circumcisions
performed in hospitals are "very safe," since many complications do occur;
the booklet's comment that the procedure is usually done the second day
(that is, before the baby leaves the hospital), is not good advice since
there is no good and safe way to prevent neonatal pain--waiting even 6
months would allow the safer use of general anesthesia. Cold said the
consent of both parents is very important; the booklet's listing of risks
as bleeding and infection are just two of many complications necessary to
be disclosed to establish informed consent. The statement that
circumcision is ritualistic surgery is correct (the only one performed by
medical personnel), but a comparison to ear-piercing is not accurate
since ears are pierced usually when the child asks for it and no tissue is
amputated. The information in the booklet on the "uncircumcised" penis is
fairly well done: Leave it alone, is the best advice; the recommendations
for post-operative treatment of the wound is ok--Vaseline is used to keep
the wound from attaching to clothes or bandages and ripping open again.
The pamphlet "Should Your Infant Boy Be Circumcised"
is introduced, and Cold is asked whether the information therein meets
informed consent standards. No. The anatomy is inaccurate; Gomco removes
all the foreskin, not just some. Cold said it would be easier to have
pictures to explain. He said that the number of deaths from circumcision
is understated because physicians and hospitals do not want to admit to
killing an infant, so the cause of death is listed as something else.
Sexual surgery should not be done on those not sexually active. Studies of
those circumcised as adults report that 27% had less satisfying erections.
In 40% the penile length was shortened, and 65% of one's sexual partners
noticed a difference. The pamphlet says that circumcised males have less
bacterial and fungal infections, but the standard of treatment for them is
antibiotics, not amputation--in any case, all one's body's mucosal tissues
have some bacteria, a necessary condition for health.
The two benefits mentioned are stopping cancer of the
penis and reducing cervical cancer in women. But Cold says that penile
cancer is very rare (more men die of breast cancer), and studies have
shown that women are not protected from cervical cancer. The circumcision
reduces urinary track infections, UTIs, may be partially true, but 99.5%
will never get one, so the risk of cutting is greater than any benefit
that may occur for
a few months; females get many more UTIs than males.
On the topic of pain control and whether infants feel
pain: He said you don't need to have a medical degree to know a child is
in pain, but there are physiological signs: crying, heightened blood
pressure, increased heart rate, clinching of the fists (I don't recall
that he mentioned elevated hormone levels). Sugar pacifiers
may stop some of the crying but do not affect the systemic signs of pain.
A dorsal (nerves along the top of the penis) block is not always
affective, and does nothing for the ventral (nerves along the bottom of
the penis) pain. A ring block is better, but more risky, as is general
anesthesia. Best to wait until child is old enough for general anesthesia.
Zenas introduced some of the defense's exhibits,
including a professional drawing of a Gomco clamp, an intact infant penis
and drawings of the movement of the foreskin as it unfolds down the shaft.
He also introduced the Circumstraint board which the court accepted, but
not for the jury to see.
Cold was asked to comment on an operative note
written by Kantak. He said the note was missing items: Why the procedure was
done, that is, the medical indications; a more accurate description of the
anesthesia used; what the findings were after the operation; whether there
were any complications; and, finally, the time the operation took.
He was asked to comment on the AMAs Code of Ethics
regarding the physician and his or her patient. They require the physician
be knowledgeable in his or her field of practice, and keep up to date.
They are to report incompetent physicians, and that one's duty is first to
the patient: First Do No Harm. Regarding the paperwork on Josiah, nothing
indicates informed consent was given in content provided or prior to the
During cross examination by defense attorney Lord an
attempt was made to show that Cold was not competent to perform
circumcisions or testify about them. Lord pointed out that Cold had an
interest in chimpanzee and ape penises. Cold responded "mammals." She
tried to leave the impression that such an interest was abnormal and tied
up with a belief in evolution which many North Dakotans still will not
accept. She worked hard to get Cold to admit that
that the loss of sensation is not "well studied," a phrase he used once in
his deposition. Zenas on redirect had Cold point out that even the
Meritcare pamphlet says circumcision reduces sensation (it also mentions
Moses Maimonides in the Middle Ages saying so).
Robert Van Howe was called to witness. He gave his
academic background, including finishing a degree on how to design medical
studies. His specialty is pediatrics. He became interested in the
circumcision controversy listening to an interview of Tim Hammond on
Wisconsin Public Radio. He was taught in medical school that circumcision
has no medical indications, but learned nothing about the foreskin's
anatomy. He was part of the "Taught one; do one, teach one" method of
learning about circumcision.
[The information on the rest of the testimony this
day is provided by Jody's notes. If Jody, or anyone finds misinformation
in this trial description, I would appreciate your input. This day's
testimony as recorded her will be corrected if necessary and expanded when
I receive Marilyn's notes.] Van Howe did a
review of the medical literature on circumcision back to the 60s, and
could find no scientific basis for the procedure on healthy infants. Under
questioning, he discussed the complications of circumcision, the ethics of
performing an unnecessary amputation on nonconsenting individuals, and the
circumcision material in the Meritcare handout, "Should Your Infant Boy Be
Circumcised" saying it contain much out-of-date material--also way the
statistical material is presented betrays a bias towards circumcision; he
compared male and female genital amputations; and discussed the AAP's
taskforces statements on circumcision, saying they are not consistent. He
asked them to declare a moratorium on infant circumcision--since if it
were to be introduced today, it would not be allowed. He was especially
concerned that their most recent statement contains nothing on the
function of the foreskin, inexcusable now that research exists on the
He gave the rates of U.S. infant circumcision: West,
35.5%; Midwest, 85% or more; East, 45% or more. Worldwide: U.S., 58.8%;
Australia, 10.6%; Canada, 17%, New Zealand, 3.5%, United Kingdom, 0.1%.
Defense attorney Lord introduced a subpoenaed letter
from Van Howe to Zenas wherein Van Howe says there is not enough damage due
to Josiah's asymmetrical circumcision to win a lawsuit. (This would be
damaging to the plaintiff's case if the suit were about operative outcome
rather than about informed consent--that is, the complaint in this lawsuit
is that the amputation should never have taken place (and would not had
fully informed consent been requested, not that the way it was done was
Anita Flatt was called to testified for 30
minutes at the end of the day during which time she stated that her
child was subjected to unnecessary
that he was harmed and sustained an injury. As for Sunita Kantak, MD,
Anita said she didn't know her, didn't ask to see her and that she
crossed Kantak's name off the card on the nursery bassinet when she saw
it there assuming it must be a mistake.
Friday, 2/7/03. [This day is also from Jody's notes so far. This
account will be
supplemented with other notes as I received them.] The days started out
with plaintiff, Anita Flatt, on the stand. The booklets, Exhibits 57 and
58, supposedly given Anita on infant care and circumcision are
introduced. Anita says she never received these publications. Jean
Platen, risk management for MeritCare, became involved when Anita was
concerned that something was wrong with Josiah's circumcision.
court was shown a home video by Jim Flatt taken at the hospital the day
of, and the day after, Josiah was born, wherein Kantak never appeared.
It ended with pictures of Josiah's asymmetrical circumcision later at
the Family Birth Center.
cross examination, Anita said she brought up the subject of circumcision
first. A nurse then brought a form on which was printed that the person
signing it had read and understood it. Anita signed it.
deposition was read into the record by Zenas' aid Tim _______. Jim was
killed in an auto accident since giving his deposition. He said his
son's penis "looked like a bloody stump" when he saw it and would never
have wanted his son circumcised had he known what was involved.
Robert Montgomery, MD, half-time medical director of MeritCare and
half-time pediatrician, took the stand. Zenas's questioning brought many
objections from the defense. The judge told Zenas that "the court will
advise the jury what the legal requirements are for the 'standard of
care'." After the jury was dismissed for the day, Vogelwede objected to
Zenas' questions which she said went beyond the scope of fact.
Montgomery was not there as an expert witness, only as to the facts
regarding letters exchanged with Anita and others regarding Anita's
complaint of asymmetry. Zenas gives a lengthy plea for his attempt to
establish for the jury what the local standard of care is. The judge
said she will allow examination on letters only, since Zenas did not
file Montgomery as an expert witness.
motion by defense to allow Kaplan to testify Monday out of order, which
Zenas opposed, was granted.
Monday 2/10/03. Nineteen degrees below zero
with a north breeze greeted George Kaplan, pediatric urologist, from sunny San Diego, CA, as the
trial resumed on the 3rd floor of the old Cass Country courthouse here in
Fargo, ND. Jane Vogelwede, attorney for the defense had managed on Friday
to convince the judge to let Kaplan testify today since this fit into his
schedule, so Zenas had to put off finishing his presentation.
Kaplan right off the top said Kantak had meet or
possibly exceeded the standard of care for Flatt, then went into his
credentials, his education and publications. He said he performed
circumcisions, tho only on 2-3 newborns a year, the others on older
children who had been referred to him for circumcision complications. He
estimated he circumcised about 3000 over his career, mostly by the
freehand method, but he teaches all the techniques. His involvement with
overseas medical societies and meetings has not changed his mind on
He is a member of the AAP and was appointed to the
recent taskforce on circumcision. Defense then introduced a summary of the
AAP's statements on circumcision:
1971--"no valid medical indication" for circumcising newborns.
1975--"no absolute medical indication" for circumcision. He claimed the
change reflected the increasing knowledge that circumcision had benefits.
1983--same as 1975.
1989--"some potential advantages and some disadvantages." When asked what
the new evidence was he said: (1) UTIs in newborns were 10x that of
uncircumcised boys, (2) uncircumcised adults men develop penile cancer,
and (3) some evidence it helps reduce STDs and cervical cancer.
1999--repeat of the 1989 statement: "advantages are not so compelling as
to recommend circumcision as a routine." It added parental involvement say
it is legitimate for them to consider culture and religious beliefs (he
never said how this was "evidenced based"). The AAP now accepted that
babies feel pain (17 years after they had been present with the evidence),
and given now that there was "effective" pain relief methods, they
recommended the use of anesthesia (or analgesia--the difference was not
He was then asked by Jane Vogelwede what "evidenced
based" meant. He said they looked as medical studies since the '60s and
gave them various degrees of importance depending on how the studies were
done, from double-blind crossover to single case reports. When asked why
go over studies other taskforces had looked at, he said they may have made
mistakes in interpreting the evidence. The 1999 statement included
religious and cultural factors for the well-being of the child since the
child will have to live in that environment.
Why didn't other statements include anesthesia?
(Defense always used "anesthesia" though Kaplan would respond with both
anesthesia and analgesia.) He said newborns were thought not to feel pain
in the same way as adults, but now we know they have the same
physiological reaction: elevated blood pressure and steroid levels. Pain
relief was dangerous for newborns (that is general anesthesia), but now
the dorsal block (Kantak's procedure) is "effective."
The AAP gave no formula for the informed consent
process, but he said parents should be told (1) what the physician is
doing, (2) why he or she is doing it and (3) what the general risks might
be. The process should proceed until the parents are "comfortable and have
all their questions answered" (apparently the physician is under no
obligated to raise questions or concerns).
He was asked whether Van Howe appeared before the
committee. Yes, but the committee came to a different conclusion. They
discounted his data because it was not gathered in as
strong a form as others, so the AAP did not call for a moratorium. He
stated that Kantak did indeed inform Anita sufficiently and that no
contra-indication for the procedure was noted. When asked what he tells
parents, he says there are some benefits from lower UTIs in first six
months, but like all surgery it has risks, namely, bleeding and infections
(later says these are usually only superficial skin infections). He says
nothing about adhesions, asymmetry (though he later says this is a very
common outcome), etc., nor death. He said the physician need not discuss
the method used, nor the the advantages or disadvantages of techniques he
or she does not use (even though testimony from others say there cause
Kaplan said there was no injury to Josiah from his
circumcision. No complications, only an adhesion. He was at pains to
distinguish two kinds of adhesions: skin bridges (which are complications)
from "natural adhesions." Here he gives the normal penis anatomy, that the
foreskin and glans are usually "stuck to each other," and that in a
circumcision these adhesions must be separated. What Josiah had was some
residual foreskin stuck to the glans. It would separate on its own as he
matured, and that surgery would only cause a risk of scarring, and should
be left alone (Kaplan was generally concerned that premature retraction
not take place--something that only causes pain and guilt feelings in the
mother). Josiah's asymmetry is not a "complication" according to Kaplan's
definition. When asked to comment on the surgical note in Josiah's medical
records, he says it meets the standard of practice.
Kaplan said he wrote the section of the AAP statement
on complications which says there are 2-6 complications per 1000 in the
1.2 million circumcisions a year. These include bleeding and superficial
skin infections, plus a few "isolated case reports" of recurrent phimosis.
Death was not reported as a complication. Nearly all deaths, he said, are
the result of other factors, like bleeding to death. He discounted Chris
Cold's testimony of the possibility of amputation neuroma.
As for sexual function, there is no data on
dysfunction or satisfaction except circumcised males have more varied
sexual practices (anal, oral and masturbation). When asked, he said "I
don't know that the function of the foreskin is known." No one does.
Urination and sexual activity (procreation?) are the only functions of the
Here Zenas Baer took over cross-examination. He asked
Kaplan whether he had been president of a synagogue organization [I need
to get the exact title here], and was on the board of the Anti-Defamation
League. He said he had been. Zenas read the conclusion of the 1999
taskforce statement on circumcision, then pointed out that informed
consent information should be provided before the child is born, that the 1989
statement says the parents should be fully informed before consent is
obtained. Zenas asked Kaplan whether he made money doing circumcisions,
and after hesitation, he said he charged a fee.
In a discussion of the standard of care, Kaplan said
he thinks it is pretty much a national consensus and is reflected in the
AAP statement. Zenas then read part of the 1995 statement of the bioethics
committee where it says the primary duty of the physician is to his
patient. Informed consent elements include:
(1) Assessment of the nature of the problem, risks and benefits of
suggested procedure, including risks of alternative treatment, including
(3) Since the infant patient cannot give consent, there must be an
assessment by the physician of the surrogate's ability to make an informed
(4) Patient/parent must be given assurance he or she can choose
The physician must stay abreast of new developments? Kaplan, yes. He or
she must look out for the best interest of the patient? Yes. Despite what
parents wish? Yes. Would you cut off a finger? Kaplan, yes, if it was an
extra digit. If it were a normal finger? No. Would you pierce ears? No.
How about a clitoris? Would you pierce the foreskin and put in a post? No.
But if a parent wants to cut off the male foreskin,
you would do it? Yes, because the benefits outweigh the risks. Shoemaker
(in his deposition) says "No risk is too small" not to mention to parents,
and Kantak says all risks should be disclosed. When Zenas asked, are
"circumcisions performed for cultural reasons?" the answer was, yes.
Kaplan agreed that physicians are resistant to
change. The pain studies of the 70s made no impact on the AAP until the
late 90s, seventeen years lag-time. Kaplan thought seventeen years was a
short time in medical practice. He also agreed that neonatal circumcision
is done with no present medical problem--only done to prevent future
Zenas Baer read selections from Kaplan's
publications, where he had traced the history of circumcision back to
Genesis and observed that those who hold religious reasons for
circumcision will seldom be dissuaded by medical evidence. A graph of the
normal time for foreskin separation showed: 97+% are attached at birth;
63% at 6 years of age; 3% still attached at 16 years of age. He said
premature retraction is torturous, and only causes parents to feel guilty
following a physician's instructions to retract; it is "cruel and unusual
punishment," a quote from a publication of his. But he went on to say that
if the foreskin is forcibly retracted in order to cut it off, it is not
cruel and unusual punishment.
hypospadias is a contraindication for circumcising. He agreed that newborn
circumcision is prophylactic only, to prevent future problems, and for
hygiene. When asked whether the standard of care isn't soap and water
rather than amputation, he responded, "I don't think so, any more." Isn't
aesthetics another reason for circumcising? Yes. He also said he will take
off a teen's foreskin if he wants it--after telling him what's involved.
Then Zenas asked, what do you tell him about the function of the foreskin?
Hasn't the normal penis become abnormal after cutting the foreskin off?
"Normal is the intact penis, right?" Kaplan said, "True."
Kaplan said it is difficult to obtain any good
information on the difference of sexual function because adults don't know
the difference. He also said that consent for circumcision should be
treated no differently from any other surgical consent, but all too often
the the consent form is slipped in among other papers.
At this point Zenas took Kaplan through all the
complications he enumerated in his 1977 publication: "Circumcision: An
Overview," Current Problems in Pediatrics, Vol. 7, 1977, pp. 3-33.
When asked which are need to be disclosed to provide adequate informed
consent, Kaplan said only bleeding and infection. Here is the list:
(1) Bleeding: .1%-35%.
(2) Phimosis, a relatively common result of an inadequate circumcision.
(3) Concealed penis, penis pulled back into the pubic region.
(4) Skin bridging, between shaft skin and glans--fairly frequent adverse
(5) Insufficient skin [i.e., foreskin] removal--source of many complains
(6) Urinary retention.
(7) Meatitis (scarring of the meatus, urinary opening), 8%-31% of
circumcisions--One of the more frequent complications. Meatal Stenosis far
more common in circumcised than intact.
(8) Chordee--result of Gomco clamp gone bad.
(9) Inclusion cysts.
(10) Penile lymph edema.
(11) Cyanosis [?]
(12) Loss of penile shaft from necrosis or cyanosis (loss of blood).
(13) Infections, 8%.
(14) Total loss of penis, Kaplan's ultimate complication (no mention of
Kaplan reworked this article in '83--circumcision is
the most frequent male operation. Zenas asked, since other English
speaking countries don't circumcise to our extent, why do we? Is it the
economic gain? When the National Health Service stopped paying in England,
their rate dropped. Kaplan thinks it is due to other factors, even saying
that it is because we are ahead of the rest of the world.
When it comes to the care of the intact penis,
physicians make mistakes because there as so few of them. To retract
before the foreskin naturally separates causes bleeding and paraphimosis.
Asked why doctors are so slow to change, he could not say. Are there
doctors out there still recommending retraction? Yes, he said. [Lunch
break.] Zenas read the AAP statement that no special are is needed for an
intact penis, and when it is retractable, to retract and wash. He also
read the AAP '71 statement saying that "There is no valid indication for
circumcision in the neonate." He also pointed out that 9.3% of
circumcision require a repeat operation--shouldn't this be listed as a
risk? Kaplan replied, yes, if this is the physician's experience.
The '83 rewrite says that infection can lead to many
serious losses--disability and death, otherwise it pretty much repeated
the '77 article, adding fistula, necrosis, impotency and problems caused
by anesthesia that cause psycho-social issues, but all these complications
are preventable with a "modicum of care" according to Kaplan. Again in '95
the article was reworked with resident help. Cost to society is now given
as 150 million to 270 million dollars. The incident of penile cancer
Kaplan gives for the U.S. is higher than penile cancer in noncircumcising
countries. Zenas lists the tools used to circumcise and asked Kaplan
whether each has its own kind of risks. Yes. This the list of
complications is listed again in this edition. Pain and anesthesia have
their own list of complications.
Kaplan lists the evidence for pain as increased heart
rate, elevated blood pressure, decrease in blood oxygen, sweaty palms,
increased cortisol levels, cry pattern, irritability, altered sleep
patterns (nothing on nursing ability). Kaplan is asked whether he thought
parents might not want to know these risks, he said, "Most parents don't
actually care" to know these risks; "most don't" want to know. How about
death? Kaplan said it is a rare event, and circumcision is not the cause
anyway. But don't you think parents would want to know it is a risk? Yes.
Zenas pointed out that that circumcision is done
mainly for religious or cultural reasons--that it is uncommon in most of
the world--that we circumcise more neonates than any other country in the
world for nonreligious reasons. Then he asked whether we are healthier for
it. Does it decrease infant mortality? No. Kaplan said the UTI rate is not
given in the medical literature.
Kaplan wrote the section on Complications of the
Circumcision Procedure in the 1999 AAP statement. He was asked why he left
out some of the complications found in his '83 article revision. He gives
a .2 to .6% complication rate. He said Wiswell, Schon and Moses thought
there should have been a recommendation from the AAP to routinely
circumcise infants. In his deposition, Shoemaker said Kaplan was in the
pro-circ camp of the AAP committee.
Next ethical issues were raised. When asked whether a
mother in looking out for her son's well-being should be told all the
risks before deciding whether to circumcise, Kaplan said, no. Unless the
parent brings them up, I don't. Zenas: But doesn't the process of informed
consent obligate the doctor to enumerate the risks and benefits? The AAP
statement does not say "some" risks. Kaplan: "In my view I would not give
all of them. Parents are given enough information when they think they
have enough information--I will give the information I think they want and
that fulfills the obligation of informed consent." Doesn't Laumann say
parents must be fully informed--giving all the risks and benefits--and
that no social considerations outweigh medical purpose?
Zenas then lists many of the reasons given for
circumcising in past medical literature, such as, club foot.... The Finke
article on adult circumcision outcomes and its affect on sexual function
is brought up. Kaplan says there is "nothing totally conclusive at this
point" on the affect on adults, though he did admit that some report a
decrease in penile sensation, and that circumcised men engage in anal and
oral sex and masturbate more often than intact men.
Zenas incorrectly assumes a nonretractable
foreskin would prevent sexual functioning. Kaplan corrects him saying the
only way a non-retractable foreskin would affect sexual performance is "if
you tripped over it," bringing a chuckle, one of two times all day.
The focus moved next to Meritcare and Kantak and
whether they fulfilled their obligation to Flatt. Zenas tells Kaplan that
for him to conclude that Kantak met the standard of care he has to make
certain assumptions: That Meritcare employees followed the procedures. Do
you have personal knowledge that they did so? Kaplan: "But it is
documented in the charts." Where? Zenas asked. There follows an
examination of a couple pages from the medical record where the mother's
chart has a date of 3/8/97, the day after Josiah's circumcision. Kaplan
again tries to rely on the policy of the hospital staff and physicians
that it is done. Zenas points out a documented epidural, but no epidural
The other chuckle came when Kaplan was asked whether
he saw the patient's initials on a form. He said he didn't think the baby
could sign it--making it clear that he does know the patient is not the
parent. Zenas says not one of the nurses in the depositions remembered
giving Anita the hospital booklets. Neither did Kantak, and Anita
testified that there where no booklets given to her. "You must assume
Anita is mistaken?" Yes.
Then the surgical report is examined: Can you tell
when the circumcision took place? No. Can you tell the amount of Lidocane?
No. What tools were used? No. How much foreskin is removed? No. Kaplan
says that using a marker on the foreskin by the corona will help remove
the right amount. But is there a standard amount to remove? No.
Is the booklet in itself inadequate to obtain
informed consent? Yes. Is it the duty of the the physician to obtain
informed consent? Yes. Is the Infant Care booklet sufficient? Not by
itself. Kaplan then is asked whether Anita's signature on the form proves
that informed consent was obtained. Kaplan did not want to answer yes or
no, because he said there is other documentation that Anita was given
information. But finally answered, no.
You agree that the physician must obtain informed
consent? Yes. You assume Kantak gave Anita enough information to satisfy
informed consent. Nothing indicates what Kantak told Anita. But, Kaplan
says, Anita is a lawyer, not just a homemaker and should know enough to
get informed before signing the form. Anita testified she signed before
ever talking to Kantak. Is a discussion with Kantak only about anesthesia
sufficient for informed consent? No.
You don't know what the function of the foreskin is,
but you remove it? Yes.
Then Voglewede on redirect: Kaplan tries to say
circumcision is like other prophylactic procedures, e.g., vaccinations. He
said his religious beliefs have no affect on his medial practice. He also
said that "If you leave the uncircumcised penis alone, it would become
retractable." Premature retraction is "cruel and unusual punishment"
though that was hyperbole when he wrote it. What are medical indications
for circumcision? Phimosis after scarring, paraphimosis and infections. He
said he explains to parents exactly what is involved (but does not explain
how that was possible if he does not know what the function of the
foreskin is). "The disadvantages are short-term; the advantages are
Zenas Baer then points out some inconsistencies in
the baby's chart compared to the mother's chart. No check marks indicate a
physician visited Anita until 3/8/97 at 8 am, the day after the
circumcision. Then a new twist on an old saying: Kaplan says that just
because it is not documented does not mean it did not occur. Zenas ends by
pointing out that a UTI treatment brochure nowhere says circumcision is a
Then Robert Montgomery, Medical Director of Meritcare Health
Systems is brought in to finish his testimony left over from Friday. Part
of his job is to deal with unhappy patients. He is asked how he heard of
Anita Flatt. He was not very forthcoming, but eventually determined it was
likely from Jean Madson from Risk Management who asked to to look into the
case after receiving a call from Anita on May 14th, 1997. Montgomery wrote
Anita a letter saying Josiah will have no lasting problems without every
examining him. Anita called again on June 5, 1997, so Montgomery set up an
appoint in his office to talk to her. Anita ended up showing Josiah's
penis to Montgomery who made no notes of what he saw because he said it
was not a medical exam. His office also did not keep phone records of
Montgomery arranged an exam with Dr. Sawchuk to see
Josiah. Zenas establishes that all those involved at Meritcare are
concerned with this case from a risk management point of view. Sawchuk
said the asymmetry was a common result of the Gomco clamp. He ripped apart
he reattachment of the remnant foreskin to the glans.
Zenas asked Montgomery whether the foreskin removed
was normal, healthy tissue. Yes. Also asked him what the foreskin is and
(1) lubricates the glans? Probably does.
(2) protects the glans? Yes.
(3) contains blood vessels? Yes.
(4) rich in verve endings--fine-touch nerves? Yes
(5) like all mucosal membranes? Yes.
What is the purpose of the foreskin? Objection. Sustained.
Tuesday, February 11, 2003. [from Jody's notes; this
account must be filled in, verified and corrected by Jody and Marilyn's
notes] Montgomery back on stand. Established that Montgomery requested
Dr. Sawchuk to evaluate Josiah. The report noticed adhesions. Montgomery's
letter to Anita addressed two issues regarding the circumcision: (1)
Josiah is fine-recommend doing nothing now or in the future, and (2) a
billing error, namely, charges for ___ to attend the birth. Sawchuk said
something could be done now (separate the adhesions right there in the
office) or later under general anesthesia. Anita requested _________
medical records for her son--the hospital did not send all the records to
Montgomery is asked what his job involved. He serves
as liaison recruiting physicians for satellite clinics, ______ medicine,
deals with patients who are unhappy with their doctor's care.
Dr Mastel thought the asymmetry was not significant
and would disappear in time. Within 1-2 years the asymmetry should be
barely noticeable. Montgomery based this statement on his experience and a
conversation with Dr. Sawchuk.
Jean Platson was subpoenaed. Defense moved to stop
subpoena saying her documents would be privileged. She is not listed as a
witness. Objection sustained.
______saw a small a small amount of asymmetry an
thought "He (Josiah) looked good. Good medicine was practiced."
Montgomery gave the opinion that the asymmetry would be barely noticeable
in a few years and it would not cause sexual or any other problems. The
the court recessed to wait for nurses to come to testify.
Nurses: Doreen Brass, RN testified that she was on duty March
5th and 6th in the nursery from 11 pm to 7 am. She filed in the newborn
admission form with information on top [?] and apgar scores. The nursery
room nurse is responsible to find out whether baby is to be
circumcised--"just part of what we do." Part of this responsibility as a
nurse is to ask parents if they want their child circumcised. She has
assisted in 12 circumcisions during her time at MeritCare (at the time of
her deposition). 90 to 95% of babies born at MeritCare are circumcised.
Very unusual for a baby boy not to be circumcised at MeritCare Hospital
Family Birth Center. The hospital initiated a nursing plan that included
circumcision. This plan is kept on the baby's chart. Recess.
Rita Korvan(sp?), RN, to the stand. She has no
recollection of caring for Anita or Josiah. She was the Nursery Room nurse
who did rounds with Dr. Kantak when she was on call. Rita is familiar with
Kantak's normal routine which includes the daily exams of infants, their
circumcisions, the charting of the operation and going on rounds to the
mothers. She doesn't know the exact number of circumcisions at MeritCare.
Her deposition said, 90%. She has assisted and observed circumcisions.
Babies cry loudly, which could be interpreted as a scream. She cleans
airway in case baby throws up. Asked whether Gomco clamp crushes vascular
system, she said she hadn't thought about it. Is she aware that some
Rita has been a nurse for 21 years, CCB educated. Is
a fact consultant, 19 years at the Birth Center. She goes on rounds "very
often" with Dr. Kantak. Kantak asks parents: "Have you thought about
circumcision?" She gives them
Hepatitis B information also. She is
consistent in how she discusses circumcision with parents: She says it is
a personal choice of the parents; it is not recommended by pediatricians;
she uses Lidocane for pain control, and sugar. She says there is a risk of
bleeding and infection. She asks why they want it done. Parents respond:
Husband wants it done; they want to avoid having to do it later in life.
Kantak hands out circumcision literature: Should Your Infant Boy Be
Circumcised? and infant care booklet: Infant Care, the First Six
Weeks. She addresses common concerns. (The booklets are entered as
evidence.) Zenas asked her what the parents
say to Kantak. Usual response is yes to circumcision. Kantak would insist
on continuing to give information on personal choices, bleeding, etc.
Kantak did the home visit to assess mother and baby
at home. The exam included color, breathing, heart rate, eating, assess
the circumcision and answer any questions. Rita does not recall anything
about the home visit to Anita's. Records show Josiah had only lost .5 oz;
common for babies to loose weight in hospital.
Rita said she is full-time at Family Birth Center,
that working with Kantak "very often" means 100 times or more. This year
she has worked with Kantak about 25-30 times. Each year since 1997, 30 to
100 times. There have been routine calls regarding bleeding and
infections. Does Kantak mention death as a risk? No. Does she compare it
to FGM? Yes. Does she mention imbedded penis? No. Cardiac arrest? No.
Urethra fistula? No. Severed penis? No. Recess.
Before the jury returned, Judge
Cynthia Rothe-Seeger said the trial is taking too long.
Jurors are asking when it will be over.
Deb Ludwig, LPN, on the
stand. Has worked 24.5 years, all at the Family Birth Center. She gave her
deposition 2/01. She is a nurse in charge of mother and baby. She said
that if she cared for Anita for 3 days, Anita got her booklets. The form
saying this is so does not contain any initials. She didn't actually
remember giving Anita the booklets. Deb grew up on a farm; has been LPN
for 30 years; moved to ______?____. She says she is very regimented in
what she does. Zenas produced the medical records for Anita. It showed
that the teaching materials were provided to Anita. Deb took care of
Josiah after the circumcision. She regularly checked Josiah. Everything
She said some parents
indicated they did not want Kantak to do the circumcision, even tho "she
did a very nice circumcision." Why is that? The parents said it seemed
Kantak did not want to do them, so she would not do a good job. But the
nurses would tell the parents that Kantak did a very nice circumcision.
Zenas pointed out that Form #6 in the mother's record is not the usual
one. He pointed out a discrepancy on the time Kantak saw Anita on
the morning of March 7.
Next nurse on the stand
is Ruth Larson, LPN, 20 years at MeritCare. She was on duty March 6, 1997.
She too had no recollection of Josiah and Anita. She witnessed the consent
form for Anita. Watching the home video did not help her remember the
Flatt family. She said she took a form to a patient who was an attorney,
left it with her to look over. She didn't know whether that person was
Anita. Her deposition was taken two years ago. Her deposition says: "I was
told to get the consent form signed because they wanted their son
circumcised. She was asked whether she remembered Anita having questions
about the circumcision and telling Anita that Kantak will talk to her in
the morning. Deb did not remember; but she said circumcision is strictly
up to the parents. Recess.
Flo Daryling, a charge
nurse in the nursery, on the stand: Zenas asked her whether she hears
babies scream. "I don't know if it s a scream--it is a loud cry." Flo said
she would not encourage anyone to sign the consent form if they were not
sure. Who tells parents about the risks? Doctors. James Flatt authorized
the Hepatitis B vaccine.
charge nurse, March 5th and 6th, on the stand. She has worked for
MeritCare since 1980. She has assisted with circumcisions; puts the
foreskins in the garbage. She has read that the foreskin enhances sexual
pleasure. She assembles data on a case and then inputs it in the computer.
Zenas pointed out errors in the computerized record system. If the doctor
does not attend the birth, he is still listed as being there if he was in
Sherry Stowa, RN for 20 years, on the stand. She has
no recollection of the events surrounding Anita and Josiah. She is a
charge nurse of the floor. She volunteered to testify regarding Kantak's
routine. Her deposition was taken 1/6/03 (corrected and signed 1/2/03).
She had no direct contact with, nor care of, Josiah. She has worked
1-2 months in the nursery. Kantak has always used the same talk, except
Does she say the baby can bleed: Yes.
There can be excessive bleeding? No.
Does she mention buried penis? No.
Loss of the penile shaft? No.
Urethra fistula? No.
That she uses the Gomco clamp? No.
Risks associated with anesthesia? No.
Other possible methods that can be used to circumcise? No.
Sherry said that at the Family Birth Center, it is
the nurses job to ask parents if they want their son circumcised. If the
parent says they don't want it done, Kantak does not give information
regarding the risks and benefits.
Day to Day (Wed., Feb. 12,