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Flatt v. Kantak
Suit on Informed Consent

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On this page:
News Release on Flatt Case,
Circumcision debate to open in Fargo, The Forum, 12/8/02
Hospital wants out of lawsuit over circumcision, The Forum, 12/19/02
Interests of child must be the priority, Letter to Forum Editor 01/05/2003
New York Times: Circumcision Opponents... 01/23/2003
Video at issue in court hearing,
The Forum
Judge won’t allow images,
The Forum

Also for articles on the Flatt v. Kantak trial, go to where some are archived.

Judge won’t allow images
By Jeff Baird
The Forum - 01/25/2003

A judge ruled Friday graphic images of babies being circumcised will not be allowed in a trial that could determine what hospitals have to tell parents about the procedure.

The issue was the focus of intense debate at a Wednesday pretrial hearing.

“MeritCare is very pleased that the court has recognized that this case is about informed consent and not about whether male circumcision should be allowed,” Merit-Care spokeswoman Carrie Johnson said in response to East Central District Court Judge Cynthia Rothe-Seeger’s written judgment. “The
decisions that Judge Rothe-Seeger made regarding the type of information the jury will be allowed to see and hear center around this fact.”

Anita Flatt of Hawley, Minn., is suing Dr. Sunita Kantak, Fargo-based MeritCare Hospital and the state of North Dakota claiming she and her husband, James, weren’t told complete and accurate information about removing the foreskin from their son’s penis.

Anita Flatt signed a circumcision consent form, but hospital staff didn’t describe the benefits or risks of the procedure, the lawsuit says.

Defense Attorney Zenas Baer had argued at length Wednesday that showing thevideos and tools used in circumcision were a critical part of informed consent.

He said the Flatts wouldn’t have agreed to the procedure had they known what it entailed.

Rothe-Seeger said Friday the videos differ from Kantak’s procedure “in ways that relate to making the child comfortable for the surgery and ensuring that there is no pain.

To allow them could confuse or mislead the jury, she said.

Baer said the decision will most likely add to the length of the trial as he goes into “excruciating” details using words and sketches.

“Everyone knows that a photograph is worth a 1,000 words,” he said. “It is very difficult to convey what a baby goes through just using words. We will do our best to describe the pain, the agony, the cutting, the crushing and removal of the healthy foreskin.”

Rothe-Seeger did allow Baer to amend his lawsuit to include MeritCare Hospital.

The original lawsuit names MeritCare Medical Center as a defendant. The medical center, however, is only the name of a building complex, not a legal entity.

MeritCare lawyers argued Wednesday against amending the complaint because MeritCare Hospital is not responsible for providing informed consent.

It’s the doctor’s responsibility, and Kantak is employed by MeritCare Medical Group.

But Rothe-Seeger allowed the change on a technicality. The person who was served with the lawsuit represents both the hospital and MeritCare Medical Group, she said.

The other minor victory for Baer was Rothe-Seeger’s decision to consider Anita Flatt’s personal notes.

MeritCare alleges that it is routine practice to give parents a pamphlet on circumcision.

But Anita Flatt claims she never received a booklet from the hospital on circumcision.

If she had, she would have kept it because she kept such precise notes and records on every other aspect of the birth.

“Since hospital documents and Anita’s handwritten notes go to the issue of what information Anita received,” Rothe-Seeger wrote.

Both parties were optimistic Friday about the start of Monday’s trial.

“We continue to believe that Anita Flatt’s lawsuit against us is defensible and without merit and are fully prepared to defend both Dr. Sunita Kantak and MeritCare Hospital,” Johnson said.

Baer said while the judgment was not ideal he will move forward.

“We will have to rely on the good sensibility of reasonable people from Cass County,” he said.

Readers can reach Forum reporter Jeff Baird at (701) 241-5535


Video at issue in court hearing
By Jeff Baird
The Forum - 01/23/2003

A judge will rule Friday on the type of information a jury will be allowed to see in a case that could decide what hospitals must tell parents before circumcising boys.

Anita Flatt of Hawley, Minn., is suing Dr. Sunita Kantak, Fargo-based MeritCare Medical Center and the state of North Dakota in East Central District Court, claiming she and her husband, James, weren’t told complete and accurate information about removing the foreskin from their son’s penis.

Anita Flatt signed a circumcision consent form, but hospital staff didn’t describe the benefits or risks of the procedure, the lawsuit says.

Attorneys for Flatt and MeritCare spent much of a Wednesday pretrial hearing arguing if a jury should be shown videos of circumcision as well as the tools used in the procedure.

Hawley attorney Zenas Baer, who represents the Flatts, told Judge Cynthia Rothe-Seeger the video and tools are necessary to show the cruelty of circumcision.

Had his client known the procedure was so brutal – and provides no medical benefit – she would never have agreed to it, he said.

“(Anita) didn’t know what was going to be done,” Baer told Rothe-Seeger. “She had no idea there was a risk of death connected to circumcision.”

MeritCare attorney Jane Voglewede said the case boils down to whether Flatt was informed about circumcision – not how the procedure is done. MeritCarebelieves Flatt was provided adequate information, she said.

Voglewede argued the video footage of circumcision could only “inflame the jury.”

Rothe-Seeger asked Baer if he could adequately make his points using expert testimony without showing video of the procedure.

“A picture is worth a thousand words,” Baer replied.

He said in order to make an informed decision about circumcision, people need to know exactly what is done.

“This is about him (the Flatt’s boy) and what happened to him,” Rothe-Seeger replied. “This is not about whether the people of this county should be circumcised.”

Another issue debated Wednesday was MeritCare’s role in the lawsuit.

Angela Lord, another MeritCare attorney, argued the medical center is not a legal entity and therefore can’t be sued. The name is merely a trademark, not a facility, Lord said.

She argued it would be futile to allow Baer to amend the complaint to include MeritCare Hospital, because the hospital is not responsible for securing circumcision consent – the doctor is. Lord said Kantak is an employee of MeritCare Medical Group, not the hospital.

Baer argued the hospital is not an “innocent bystander.” It provides the room, tools and nurses, among other things.

“Dr. Kantak does not get informed consent alone,” Baer said following the hearing. “She relies on the publications of the hospital, which the nurses distribute.”

And the nurses also talk with the patient about circumcision to the extent they are able, he said.

In this instance, the nurses’ information was more important because Flatt claims she never got a booklet on circumcision, Baer said.

Rothe-Seeger decided Wednesday she would not divide liability and damage claims, as she previously considered.

She said she would issue a written opinion on the other issues Friday.

If Rothe-Seeger does not allow the video, Baer said he will go into “excruciating” verbal detail.

“I will try to give the jury as much detail as I can on how the skin is crushed,” Baer said after the hearing. “And all for no reason.”

Readers can reach Forum reporter Jeff Baird at (701) 241-5535


The New York Times

Circumcision Opponents Use the Legal System and Legislatures
 or  >



FARGO, N.D., Jan. 16 [2003]--Josiah Flatt, like about 60 percent of other newborn American boys, was circumcised soon after he was born here, in the spring of 1997. Two years later, his parents sued the doctor and the hospital.

They did not contend that the circumcision was botched or deny that Josiah's mother, Anita Flatt, had consented to the procedure in writing. They said, instead, that the doctor had failed to tell them enough about the pain, complications and consequences of circumcision, removing the foreskin of the penis.

The suit will be heard by a jury next month. In declining to dismiss the case here before trial, Judge Cynthia Rothe-Seeger acknowledged that the case was unusual in that nothing "went `wrong' during the procedure." The main harm Josiah seeks compensation for, Judge Rothe-Seeger noted, is "diminished sexual sensation injury."

The suit is but one effort by a small but energetic group of loosely affiliated advocates and lawyers to use the legal system to combat the practice - most American newborn boys undergo the operation when they are days old - which they liken to genital cutting in girls.

The advocates have been active in state legislatures, too. Ten states no longer allow Medicaid to pay for circumcision.

"They have reached the ears of legislators and insurance companies," Dr. Thomas Wiswell, a professor of pediatrics at the State University of New York at Stony Brook and a proponent of the procedure, said about the opponents. "They are far more vocal than proponents of circumcision."

J. Steven Svoboda, director of Attorneys for the Rights of the Child, a group devoted to the issue, contends that circumcision is wrong as a matter of law, medicine and philosophy. Children of both sexes, Mr. Svoboda said, should be entitled to "bodily integrity."

Josiah Flatt's case appears to be the first to go to trial based on the theory that the absence of an exhaustive medical briefing about the risks and benefits of circumcision is tantamount to a lack of informed consent.

Among the possible complications in the operation are excess bleeding, infection and ulceration and occasional permanent damage to the penis.

"This could be a very important test case," said Geoffrey P. Miller, a professor of law at New York University who has written about legal and cultural issues of circumcision.

Josiah's father, James, died in 2001 in an automobile accident, but the boy's mother, Anita, 33, decided to proceed with the suit. The family's lawyer, Zenas Baer, said no sensible parent would willingly subject a child to circumcision knowing what it entailed.

"The practice is absolutely barbaric," Mr. Baer said.

The doctor who performed the circumcision, Sunita Kantak, and representatives of the hospital, the MeritCare Medical Center, issued this statement:

"Anita Flatt was given information about circumcision, and she asked to have her son circumcised. The circumcision was done because she requested it."

A hospital spokeswoman, Carrie Johnson, declined to elaborate. In court papers, the hospital said the suit was part of a crusade.

"This lawsuit is an attempt to abolish circumcision in North Dakota of newborn males with healthy foreskin," the hospital's lawyers wrote. "Plaintiffs want to change public policy so that only a competent male once he reaches adulthood, and not his parent, should be able to consent to circumcision."

Only 3 in 1,000 men not circumcised at birth choose to have the procedure, experts say.

David J. Llewellyn, a Georgia lawyer who represents plaintiffs in circumcision malpractice cases, said the hospital was correct in identifying what would be the next step for opponents of the practice.

"The question of whether or not a parent can consent at all will come rather quickly," Mr. Llewellyn said.

Judge Rothe-Seeger, who will preside over the trial in Cass County District Court, seemed to agree in a pretrial decision. She suggested that Josiah could sue his parents some day if he could show that they failed to act in his best interests.

About 1.2 million newborns are circumcised in the United States every year, at a cost of $150 million to $270 million, the American Academy of Pediatrics says.

Circumcision for other than religious reasons is a relatively recent phenomenon in the United States. It began in the late 19th century and peaked in the 1960's at 90 percent of newborns. Circumcision rates vary widely. They are highest in the Midwest, about 80 percent, and lowest in the West, under 40 percent.

The procedure is not common elsewhere. In Canada, the rate is 17 percent and in Britain 5 percent. Elsewhere in Europe, in South America and in non-Muslim Asia, the procedure is rare.

There is powerful evidence, Dr. Wiswell said, that circumcision helps prevent urinary tract infections, penile cancer and sexually transmitted diseases, including H.I.V.

The American Academy of Pediatrics, in a policy statement in 1999, said that the risks of infection and cancer were low even without the procedure and that evidence on sexually transmitted diseases was "complex and conflicting."

The academy noted that the procedure could involve complications, as could any surgery. If performed without adequate anesthesia, it is very painful.

The academy concluded that "existing scientific evidence demonstrates potential medical benefits of newborn male circumcision."

"However," it added, "these data are not sufficient to recommend routine neonatal circumcision."

It added that it was "legitimate for parents to take into account cultural, religious and ethnic traditions, in addition to the medical factors, when making this decision."

Judge Rothe-Seeger wrote, "One of the earliest purposes of circumcision was to limit sexual intercourse and to curb sexual excitement."

It has also been prescribed through the years as a remedy for alcoholism, epilepsy, asthma, gout, hysteria, malnutrition, night terrors, clubfoot, eczema and promiscuity.

"Circumcision is a medical procedure in search of something to cure," said Mr. Baer, the Flatts' lawyer.

In the last year, Arizona, Missouri, Montana and North Carolina joined six other states - California, Mississippi, Nevada, North Dakota, Oregon and Washington - that do not offer Medicaid reimbursement for circumcision for any reason, including religious beliefs.

David L. Gollaher, who wrote "Circumcision: A History of the World's Most Controversial Surgery" (Basic Books, 2000), said that trend would "be the bullet that kills this thing."

"If people have to pony up a couple of hundred bucks, at the margin, they won't do it," Mr. Gollaher said. "And insurance coverage signals a certain attitude about medical appropriateness or necessity."

There is little legal scholarship in the area. That is partly attributable, Professor Miller said, to efforts intended to prevent genital cutting in girls, a practice prevalent in Africa that reduces sexual pleasure.

"It's all tied up in the politics of feminism," he said. "Some feminists take offense at the idea that there is any comparison between a highly damaging assault committed by a patriarchal society and male circumcision. It's a dangerous topic to get into."

In an interview, Ms. Flatt, who is a lawyer, said she was told next to nothing about circumcision before she consented to it. Asked what she wished she had been told, she grew animated and her voice rose.

"It's healthy tissue," she said of the foreskin. "It's useful. There's bleeding risk. There's pain. There's infection risk. There's death risk. There's no medical benefit.

"You'd better give me a very good reason why, and it's got to be more than he'll look like dad."


News Release on Flatt Case

Attorneys for the Rights of the Child
2961 Ashby Ave.,  Berkeley, CA   94705     Fax/Phone 510-595-5550       >

Circumcision Case to Proceed to Trial

Berkeley, CA (July 29, 2002) – This month, North Dakota District Judge Cynthia Rothe-Seeger denied a motion for summary judgment by defendants in the Flatt v. Kantak circumcision case, and decided it will proceed to trial on February 3, 2003. The precedent setting decision confirms that a baby who is circumcised can sue his doctor when he reaches age of majority, even if there was parental consent for the circumcision, and even if the results are considered to be 'normal.’ "This is the latest in a series of warnings to doctors who still circumcise: proceed at your peril, because even if you get parental consent and do a standard job of the circumcision, the child can still grow up and sue you for taking away part of his penis," says lawyer J. Steven Svoboda, executive director of Attorneys for the Rights of the Child (ARC).

Like the on-going William Stowell case in New York, this case would be a breakthrough in establishing that circumcision is litigious even where there is no "botch" and "consent" is given, but there are problems with the "consent." In this case, the mother was not informed about the procedure prior to signing the "consent" form. Plaintiff Flatt’s attorney Zenas Baer says, "There will be a nine-person jury hearing this precedent setting case.  I am optimistic we will be able to have the "informed consent" issue decided by the jury. ”

Svoboda said, “This is the second significant legal victory this year, after the case of William Stowell also survived summary judgment and is proceeding to trial. Both cases will establish that, even where the procedure is performed at the professional standard, a circumcision is litigious if the consent is not informed.”

Baer added, “The court also observed that, in an informed consent case, the type of information to be disclosed to a parent is a 'standard set by law for physicians rather than one which physicians may or may not impose upon themselves.’  This is a huge statement and will put the physicians in their place if we can convince nine reasonable people that the physicians failed to give adequate information."

Marilyn Milos, Director of NOCIRC, an organization that seeks to end routine infant circumcision in North America, says, “Female genital mutilation has been outlawed, and we need the law to set the standard here, too, followed by aggressive educational programs. Parents and doctors need to know that this is a harm that lasts a lifetime.”

Svoboda stated “The foundation is well laid for lawsuits. Doctors who are still doing circumcisions are already investing in a lot of trouble, and this case will make their troubles worse. They just have to wait 18 years until that baby grows up, and they’re in for a lawsuit. An army of lawyers will be there with this precedent and many more in their arsenal.”

This landmark case brings into question whether a physician can remove healthy, normal tissue from unconsenting minors for non-therapeutic reasons, and whether a parent can legally consent to a medically non-indicated surgery for a minor child. Svoboda is convinced that this case will have a major impact on circumcision in the U.S. “Doctors ignore a lot of medical literature,” he said, “and they ignore the screams of the babies, but they listen when they hear the word ‘malpractice.’ As a lawyer willing to sue, I’ve never had a doctor not listen to me.”

Arizona and Missouri have recently dropped Medicaid funding for circumcision, joining six states, and other states are considering similar steps. The American Academy of Pediatrics (AAP) first acknowledged that there was no medical justification for routine circumcision in 1971. In 1999, the AAP reaffirmed that it does not recommend routine circumcision.  The American Medical Association concurred in 2000, calling routine circumcision “non-therapeutic.” No national or international medical organization recommends routine circumcision. The United States is the only country that continues to circumcise the majority of its newborns for non-religious reasons.  As parents have become more educated about the surgery, the circumcision rate in the US has fallen to 57%.


Circumcision debate to open in Fargo

By Steven P. Wagner
The Forum -

A Cass County jury could be the nation’s first to decide what hospitals must tell parents before circumcising boys.

To make their decision easier, Zenas Baer wants to show jurors taped footage of a doctor removing the foreskin from a baby boy’s penis.

“This is the practice I think is absolutely barbaric,” Baer said while preparing for a pre-trial hearing today.

“What parent would consent to do it? I don’t know of many who would after receiving that information,” he said.

The hearing will shape several legal issues for a landmark trial, likely the nation’s first of its kind, slated to start Feb. 3.

Three years ago, Anita and James Flatt of Hawley, Minn., filed a lawsuit on behalf of their son, now 5, against Dr. Sunita Kantak, MeritCare Medical Center and the state of North Dakota, claiming they weren’t sufficiently informed about the procedure.

If they had known more about circumcision, they would have chosen to forgo it, Baer said.

“Medical doctors don’t tell the patient, or the parents, complete information about the procedure,” he said.

“The medical community is perpetuating these results in 50 percent of the population … without the benefit of a medical diagnosis. There is no medical reason to do it on a routine basis.”

The hospital contends Anita Flatt was given information about circumcision and gave doctors consent to perform the procedure.

“All parents that have sons born at MeritCare are given information on circumcision,” said hospital spokeswoman Carrie Johnson.

“This information educates parents about circumcision and allows them to make an informed choice that factors in their own personal beliefs and preferences,” she said.

Angela Lord, a MeritCare lawyer, deferred all questions to the hospital.

In court papers, the hospital claims it doesn’t routinely recommend circumcision and the Flatts requested it be done on their son.

Previously, the Flatts’ claim about the legality of North Dakota’s law was dismissed by a judge.

The Flatts’ son was born early March 6, 1997. That evening, a nurse asked Flatt to sign a consent form for circumcision but didn’t describe the benefits or risks of the procedure, according to the lawsuit.

At the time, she was medicated for pain. The next day, Kantak spoke briefly with her but didn’t discuss the benefits, risks or potential complications and James Flatt was never consulted.

The hospital, though, says Anita Flatt made the decision for her son before Kantak circumcised him.

“She asked to have her son circumcised,” Johnson said.

Flatt understood the procedure and didn’t raise any questions to hospital staff, she said.

Male circumcision is both a medical procedure and a 4,000-year-old religious practice sacred to Muslims and Jews.

Circumcising newborns causes virtually no medical harm, but offers practically no benefit, either, according to a study published January 2000 in the journal Pediatrics.

Circumcision is thought to prevent urinary tract infections and penile cancer. But the researchers found that for every complication from circumcision, only six urinary tract infections are prevented. And for every two complications, only one case of penile cancer is prevented.

“There is no medical reason to do it on a routine basis,” Baer argues. He plans to call national experts to support his client’s claim.

The foreskin has more nerves per square inch than any part of the male body, he said.

If someone believes a child can be affected in utero, then circumcision must also influence boys because their first penal experience is a painful one, Baer said.

“Whenever you have a painfully traumatic event, it’s imprinted in the brain,” he said.

Another issue Baer plans to point out is a doctor’s duty to act in the baby’s best interest.

A baby can’t consent to the procedure, and circumcision isn’t in a baby’s best interest, he said.

According to one estimate, 60 percent of male infants are circumcised in the United States. Baer estimates 80 percent to 90 percent of baby boys in North Dakota are circumcised.

Worldwide, about 85 percent of men are uncircumcised, Baer said. The majority of circumcised men live in the United States, he said.

“We are the hotbed for genital mutilation of baby boys,” Baer said.

Nine months before the Flatts filed the suit, the American Academy of Pediatrics issued a policy statement saying the benefits of circumcision weren’t significant enough to recommend it as a routine procedure.

Based on cultural, religious and ethnic traditions, however, the academy said parents should be given complete information about the potential benefits so they can make an informed choice.

In 1996, a federal judge threw out a similar lawsuit Baer filed in U.S. District Court, and the Eighth Circuit Court of Appeals upheld the dismissal.

The district case differs from the federal case because it asks for financial damages for the procedure performed on the boy, where the federal lawsuit only wanted a ruling against the state law.

Since her son’s birth, Flatt has begun working as a lawyer for Baer in his Hawley office. Her husband was killed in a pickup accident last year.

East Central District Judge Cynthia Rothe-Seeger will preside over the case after Judge Georgia Dawson stepped down from the case. Dawson’s husband sits on the hospital’s board of directors.

At today’s hearing, Baer hopes Rothe-Seeger allows lawyers to question potential jurors individually about views and family history on circumcision.

“This is not an easy issue to talk about,” Baer said. “Most people don’t talk about the condition of their penis. It is a taboo subject. As long as it’s kept taboo, we won’t get beyond the barbarism.”


Hospital wants out of lawsuit over circumcision
By Steven P. Wagner
he Forum - 12/19/2002

Lawyers for Fargo’s MeritCare Hospital want their client dropped from a circumcision trial before it heads to court.

Wednesday, attorney Jane Voglewede asked East Central District Judge Cynthia Rothe-Seeger to order the change.

The move, if ordered, would leave Dr. Sunita Kantak of MeritCare the sole defendant in the case.

Anita Flatt of Hawley, Minn., is suing the doctor and hospital, claiming she and her husband, James, weren’t told complete and accurate details about removing the foreskin from their son’s penis.

Anita Flatt signed a consent form for circumcision, but hospital staff didn’t describe the benefits or risks of the procedure, the lawsuit says.

The procedure provides no medical benefit, argues their attorney, Zenas Baer.

Rothe-Seeger set several deadlines for lawyers to submit written requests and share information. Once lawyers submit their motions, Rothe-Seeger will oversee a final motion hearing before ruling on several legal issues.

Jury selection begins Feb. 3 in what Baer says is the nation’s first trial of its kind.

Baer calls circumcision a “barbaric” practice and claims the hospital’s doctors should have provided more information before the Flatts consented to the procedure.              

Kantak circumcised their son, now 5, one day after he was born.

If the couple had known more about the procedure, they would have chosen not to do it, Baer said.

The hospital contends Anita Flatt was given information about circumcision and gave doctors her consent to perform the procedure.

“This information educates parents about circumcision and allows them to make an informed choice that factors in their own personal beliefs and preferences,” hospital spokeswoman Carrie Johnson said earlier this week.

In court Wednesday, Voglewede said the hospital wasn’t served with the lawsuit.

She denied comment after the hearing, avoiding questions about her request to drop the hospital from the suit.

However, Baer said he opposes dropping the hospital from the lawsuit.

MeritCare was served with the suit, he said.

In another twist, Rothe-Seeger said she may divide issues in the case to separate liability and damage claims.

The judge also told Baer to submit questions he’d ask potential jurors if they were questioned individually and offer alternative ways to learn about their beliefs and family history.


Interests of child must be the priority
Letter to the Editor in the Fargo Forum - 01/05/2003

Steve Zimmerman's letter to the editor, Dec. 22, says the decision to perform surgery on a child is between parents and physicians. Our legal statutes agree with him only when parents and physicians have the best interest of the child in mind and the surgery is necessary. This can only happen when they are both well-intentioned and have the facts right.

But no medical organization in the world supports the routine circumcision of infants. Why are so many doctors and hospital administrators seemingly ignorant of this fact? No one's best interest is served by removing healthy, functioning tissue from a non-consenting child. See: for further comments by North Dakotans.

Duane Voskuil, Ph.D.
Bismarck, N.D.

Flatt vs. Kantak and Meritcare Legal Archive

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