Flatt v. Kantak 2
and Meritcare Hospital
What Constitutes Informed Consent?
 

Flatt v. Kantak, Page 1

     On these pages the following court documents above have been reproduced for those whose browsers have difficulty capturing pdf files:
     Defendant's Brief In Support Of Motion To Dismiss and Exclude Any Evidence Of Claims By Anita Flatt In Their Individual Capacities To Amend The Caption Flatt v. Kantak page 1
     Plaintiffs' Memorandum In Opposition To Defendants' Motion For Summary Judgment And Motion In Limine To Exclude Testimony Of Plaintiffs' Witnesses [denial upheld so case goes to trial] Flatt v.Kantak page 2
     Plaintiff's Reply Memorandum to Defendants' Motion To Exclude Videotapes, Surgical Instruments, Minutes Of Meetings, And Other Non-Informed Consent Related Exhibits Flatt v. Kantak page 2
     Order on Motions in Limine, pdf file. Judge Cynthia Rothe-Seeger denies use of videos and surgical instruments.
     Deposition of Craig Shoemaker, Flatt v. Kantak, page 3
     Deposition of George Kaplan, Flatt v. Kantak, page 4

PLAINTIFFS’ MEMORANDUM IN OPPOSITION

TO MOTION FOR SUMMARY JUDGMENT
[This request for a Denial of Dismissal was granted, so the trial proceeds.]

______________

State of North Dakota                                          In District Court

County of Cass East                                            Central Judicial District

 --------------------------------------------------------------------------------

Josiah Flatt by and through his Natural

Guardians Anita Flatt and James Flatt,                           PLAINTIFFS’ MEMORANDUM

and Anita Flatt and James Flatt, Individually,                  IN OPPOSITION TO DEFENDANTS’

                                                                                     MOTION FOR SUMMARY

                                    Plaintiffs,                                   JUDGMENT AND MOTION IN 

                                                                                     LIMINE TO EXCLUDE TESTIMONY

            v.                                                                      OF PLAINTIFFS’ WITNESSES 

Sunita A. Kantak, M.D., MeritCare

Medical Center,                                                            Civil No. 99-3761

                                   Defendants.

_________________________________________

I.  FRIVOLOUS PLEADING

            The filing by Defendants of this Motion for Summary Judgment is wholly without merit, frivolous, and presented for an improper purpose such as to harass Plaintiff or needlessly increase the cost of litigation.  Plaintiff will seek assessment of reasonable costs, expenses and attorney’s fees pursuant to N.D.R.Civ.P. Rule 11(b), N.D.C.C. §28-26-31, and N.D.C.C. §28-26-01.  The basis of the motion for sanctions will be set out more fully in a Rule 11 Motion. 

II.  INTRODUCTION

            Before responding to the substance of Defendants’ Motion for Summary Judgment, Plaintiff is compelled to comment on the footnote on page 1 of Defendants’ Brief in Support of Motion for Summary Judgment (hereinafter referred to as Defendants’ Memorandum).  Defendants purport to put this claim into context by suggesting that the case originally involved claims against the State of North Dakota challenging the constitutionality of N.D.C.C. §12.1-36- 01 as a violation of the Equal Protection Clause of the United States and State Constitutions.  This Court dismissed the constitutional claims.  In spite of the request by Plaintiffs to enter final judgment on the constitutional issues, this Court declined to do so preventing final judgment from being entered so an immediate appeal could be taken.  N.D.R.App.Pro. Rule 4(A).  An appeal will be taken following entry of final judgment.

            The disturbing allegation in Defendants’ Memorandum is “Plaintiffs’ counsel’s similar crusade in Federal Court to overturn the same State statute had been rejected for lack of standing.”  (Defendants’ Memorandum, p. 1, footnote 1)  As an officer of the Supreme Court of the State of North Dakota, the Supreme Court of the State of Minnesota, the Eighth Circuit Court of Appeals, and the United States Supreme Court, I took a solemn oath to support and defend the Constitution of the United States in pursuing my legal career.  If defense of the Equal Protection Clause of the United States Constitution and the Constitution of the great State of North Dakota to insure that baby boys are granted equal protection of their genitalia under the laws of the State is a crusade, I plead guilty.  Defendants’ counsel is on no less a “crusade” in defending the primitive, barbaric practice carried on by the medical community in violation of their bedrock principle “first do no harm”.  The medical community perpetuates the mutilation of baby boys without benefit of medical diagnosis purely and simply to satisfy the whims of the parents.  The “crusade” argument advanced by Defendants is solely intended to deflect attention from the real issues in this case, i.e. the continuance at the hands of medical doctors of a barbaric procedure which is not “medical treatment” and is universally condemned in civilized societies throughout the world.  The jury should decide the issue and judge the medical doctors’ continuing complicity in this serious affront to human rights of infant boys. 

III.  STANDARD OF REVIEW

            Summary judgment should be granted only if it appears that there are no genuine issues of material fact or any conflicting inferences which may be drawn from those facts.  N.D.R.Civ.P. Rule 56(C), Production Credit Assn. of Minot v. Klein, 385 N.W.2d 485 (N.D. 1986).  The party moving for summary judgment has the burden to demonstrate clearly that there are no genuine issues of material fact.  Binstock v. Tschider, 374 N.W.2d 81 (N.D. 1985).  In considering a motion for summary judgment, the Court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn therefrom to determine whether summary judgment is appropriate.  Everett Drill Vent. v. Knutson Flying Serv., 338 N.W.2d 662 (N.D. 1983).  In so doing, the Court must view the evidence in a light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence.  Id.  The resisting party must present competent, admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the Court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.  Industrial Commission of North Dakota v. Wilbur, 453 N.W.2d 824 (N.D. 1990).  A genuine issue of fact is material if it might affect the outcome of the suit under the governing law.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

IV.  INFORMED CONSENT POST JASKOVIAK

            A.        OBJECTIVE STANDARD IS “BEST INTEREST” OF CHILD.

            Defendants mischaracterize Plaintiffs’ claim.  The Defendants recognize there are disputed issues of material fact, which in and of itself is sufficient to deny summary judgment unless the issues remaining are purely a question of law.  Defendants assert “summary judgment should be granted in this case because the Plaintiffs’ advocated position that parents should not be permitted to consent to the circumcision of infant males absent a medical necessity or abnormality is not the law in North Dakota.  Furthermore, Plaintiffs have failed to produce testimony from qualified experts as required to put an informed consent claim before a jury.”  (Defendants’ Memorandum, p. 2)  This position is wholly without merit and frivolous. 

            The Complaint against Defendants is that Dr. Sunita A. Kantak failed to obtain “informed consent” before performing the circumcision procedure on Josiah Flatt.  (Complaint, ¶ 28)  The Complaint alleges a causal relationship between the failure to obtain informed consent and the resulting circumcision of Josiah Flatt causing severe and permanent injuries.  (Complaint, ¶¶ 29 and 30)

            A plaintiff in an informed consent case must establish breach of a physician’s duty of disclosure, causation, and injury.  Jaskoviak v. Gruver, 638 N.W.2d 1, 6 (N.D. 2002)  A causal connection exists when adequate disclosure would have caused the patient to withhold consent to the particular course of treatment or procedure.  Buzzell v. Libi, 340 N.W.2d 36, 40 (N.D. 1983).  A patient can establish a causal connection between an injury and the physician’s failure to disclose by showing that had there been a proper disclosure, the patient would not have consented to the treatment.  Jaskoviak at 7, citing To J.D. Lee and Barry A. Lindahl, Modern Tort Law, ¶ 25:48.

            According to Jaskoviak, Id. p. 9, North Dakota has adopted a rule that a Plaintiff’s cause of action is not limited to the existence and nonperformance of a relevant “professional tradition”.  The standard to be followed is that in deference to the patient’s right of self-determination in particular therapy demands, a standard “set by law for physicians must be developed rather than one which physicians may or may not impose upon themselves”.  Jaskoviak, 638 N.W.2d 8 citing Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772 (1972), cert. den. 409 U.S. 1064.  Jaskoviak went on to hold that the standard for measuring the performance of a physician’s duty as it relates to informed consent is conduct which is reasonable under the circumstances.  The test, therefore, for determining whether a particular peril must be divulged is its materiality to the patient’s decision.  All risks potentially affecting the decision must be unmasked.  Id. at 8.  Ultimately, the trier of fact must determine whether a reasonable person in the Plaintiff’s position would attach significance to the specific risk.  Jaskoviak at 9.

            Defendants’ argument beginning at page 11 of Defendants’ Memorandum entitled “Under North Dakota Law a Parent Can Consent to Circumcision of an Infant Son Whether or Not There is a Medical Indication or Abnormality” may be a proper statement of law, but it is totally irrelevant to the issue of informed consent as framed in the pleadings.  There is no claim in the Complaint arguing that parents do not have the authority to consent to medically indicated treatments.  It is true Plaintiffs’ experts believe the consent for non-medical removal of otherwise healthy tissue is not a valid consent.  The real issue is, however, what information Dr. Kantak gave to Anita Flatt in order to inform her of the risks and benefits of the procedure to meet the informed consent standard to remove healthy genital tissue for non-medical reasons.

            B.        STATUTORY STANDARD OF INFORMED CONSENT.

            Although cited in passing, Defendants do not analyze the North Dakota Century Code dealing with “informed consent”.  N.D.C.C. §23-12-13 sets forth the standard for obtaining informed consent in the State of North Dakota.  The standard for obtaining informed consent applies to any healthcare decisions  for a minor patient.  N.D.C.C. §23-12-13(1).  There is no disagreement that Josiah Flatt was a minor patient when he was circumcised on March 7, 1997.   The statute sets out specific limits on the exercise of authority to consent to healthcare of a minor.  Before a parent is authorized to give informed consent, the parent must:

“first determine in good faith that the patient, if not incapacitated, would consent to the proposed healthcare.  If such a determination cannot be made, the decision to consent to the proposed healthcare may be made only after determining that the proposed healthcare is in the patient’s best interest.” 

N.D.C.C. §23-12-13(3). 

            Accordingly, under North Dakota statutory law, the standard for obtaining informed consent for a minor involves two inquiries.  First, if the patient (infant) were able to communicate his desires, would he consent to the procedure?  The obvious answer is no given the shrieks and cries of babies undergoing the procedure who, in their rudimentary way, are attempting to communicate their displeasure to medical providers who apparently are oblivious to its meaning.  And second, absent a determination that the infant would want the procedure done, a healthcare provider may only do the circumcision after determining that the circumcision is in the infant’s best interests.  The infant’s best interests would be to leave the foreskin intact.   Thus, the analysis of “informed consent” must begin with the “best interest” of Josiah Flatt.

            Defendants devote considerable effort to the argument that the entire premise for the Plaintiffs’ informed consent claim is a mistaken view of fundamental North Dakota law.  (Defendants’ Memorandum, p. 12)  This is a misstatement of the pleadings and totally unsupported by the claims advanced. 

            To the contrary, the Defendants want this Court to ignore statutory positive law directly applicable to this case.  The plain language of the consent statute (which was not analyzed by the Defendant) requires a determination to be made before a circumcision can be performed that the baby, if not incapacitated, would consent to the healthcare, or, absent such divine knowledge, the person giving consent would need to determine that the circumcision was in the baby’s “best interest”.  In order to determine whether or not circumcision was in the baby’s “best interest”, a parent must be given all available information on the benefits and risks of the procedure in an unbiased manner.  A description of the benefits and risks must be provided by the medical doctor. 

            The AAP Circumcision Policy Statement (Kantak Depo. Ex. 10, Z. Baer Affd. Ex. 5) concluded that there is not sufficient data to recommend routine neonatal circumcision.  The AAP found that circumcision is not essential to the child’s current well being, and in order to make informed choices, parents of male infants should be given accurate and unbiased information and be provided the opportunity to discuss the decision.  (Kantak Depo. Ex. 10, Z. Baer Affd. Ex. 5)  If there is no medical benefit to a procedure, the prophylactic removal of healthy tissue is not in the child’s best interest and could be considered criminal assault.  Imagine if the medical doctor removed a finger, earlobe, or other body part at the request of the parent.

            Clearly, there is a legal basis for the informed consent claim and Plaintiffs are not attempting to attack the fundamental right of a parent to consent to “medical care of an infant child”.  Routine circumcision, however, does not fall under the rubric of “medical care” inasmuch as there is no medical condition being treated by the routine surgery.  (VanHowe Depo. p. 36, Z. Baer Affd. Ex. 7)

            The structure of the informed consent statute in North Dakota recognizes the autonomy of the child and that limitations on parents are embedded in the statute making parents and medical doctors accountable for decisions touching on medical care of infants unable to communicate their needs.  There are only two circumstances under which informed consent can be obtained for circumcision, i.e. if the baby were not incapacitated would he consent?  If that determination cannot be made, the procedure can be done only if it is in the child’s best interest.  N.D.C.C. §23-12-13(3).  “Best interests” can only be determined by the finder of fact.  A compelling argument could be made that “best interests” could never involve the amputation of highly erogenous, sensitive tissue from the penis of a newborn for purely cosmetic reasons. 

            Applying N.D.C.C. §23-12-13(3) to the facts of this case, Dr. Kantak’s duty was to disclose to Anita Flatt all of the risks and benefits known when performing a circumcision.  Jaskoviak at 8.  In other words, would a reasonable parent attach significance to risks associated with the circumcision procedure so as to effect the parent’s decision on allowing the assault and battery on their infant son’s genitalia?  Defendants deliberately omit any reference to the “best interest” standard in an attempt to mislead the Court.

            C.        MATERIAL FACTUAL DISPUTE.

            1.         He Said/She Said.

            Overlooked by Defendants in their zealous attempt to deflect the Court’s attention to an irrelevant issue, is the fundamental material factual dispute as it relates to what was said by Dr. Kantak to Anita Flatt to meet her duty to convey complete information of the risks and benefits of circumcision.  Dr. Kantak does not recall any aspect of the discussions she had with Anita Flatt about the risks or benefits of circumcision, nor ever met James Flatt.  (Kantak Depo. pp.59, 64, 66, 128, Z. Baer Affd. Ex. 5; Answer to Interrogatory No. 27, subp. (b), Z. Baer Affd. Ex.10)  Dr. Kantak has no recollection of ever meeting James Flatt and only had brief encounters with Anita Flatt, the nature of which are subject to dispute.  There is nothing in the medical records
describing the risks or benefits.  (Kantak Depo. Ex. 4, Z. Baer Affd. Ex. 5)  (Only the printed form suggesting risks and benefits were discussed.)

            On the other hand, Anita Flatt specifically recalls a nurse approaching her in the late evening of March 6, 1997, with a consent form to sign.  (Kantak Depo. Ex. 5, Z. Baer Affd. Ex. 5)  She had a number of questions about the consent form and the circumcision process.  The nurse indicated she would need to talk with the doctor in the morning.  Anita Flatt was told she could not be present during the circumcision procedure.  (A. Flatt Depo. p. 33, Z. Baer Affd. Ex. 3) 

            Anita Flatt recalls the first meeting with Dr. Kantak being March 7, 1997, as follows:

“and she didn’t even come in my room.  And - she was just in the doorway. . . and I remember saying-asking about pain.  Is there pain? . . . She was using her hands.  And something about for the pain.  It’s nothing.  And I remember her using her hands and her head.  And all of a sudden she was gone.”

(A. Flatt Depo. p. 34, Z. Baer Affd. Ex. 3)  In addition, in response to deposition inquiry about what Plaintiff asked Dr. Kantak at the initial meeting, she responded:

“I know I was concerned about pain.  I know she brushed it off as nothing.  They use something.  I cannot tell you what she called it.  She said something that was used.  She was using her hands.  I remember I was asking about pain.  And that I think I said I understood-confirmed that she does all the boys, they line up all the boys and they do them.  And that I couldn’t be in the room.  But that was it.  I talked about pain.  I remember I asked a lot about pain.”

(A. Flatt Depo. p. 46, Z. Baer Affd. Ex. 3)  Specifically to the point Anita Flatt indicates:

“Sunita Kantak did not let me make an informed choice that is for my son.  And I am a believer, after going through all this, that that is my son’s choice.  Someone cut a piece of his body and caused injury to him and I have a lot of guilt.  My son-my husband was in tears.  He described his penis as a bloody stump.  I mean it’s a very private issue.  Then as time goes on, we see that there is this lump of skin on the side of the penis.  That doesn’t help.  I wish I was more informed.  God, I wish I would have read about it, I wish my family would have talked about it.  I wish I would have been informed.”

(A. Flatt Depo. p. 49, Z. Baer Affd. Ex. 3)  Anita Flatt goes on to say:

“. . . I’m guilty of being ignorant and not knowing that.  I relied on [Kantak] to give me the medical knowledge about it.  I didn’t get it.  I didn’t–you know, maybe it comes down to this.  Did I drill her and say use medical terms.  No.  I was ignorant.  I didn’t know.  And I didn’t get them from her.”

(A. Flatt Depo. pp. 49-50, Z. Baer Affd. Ex. 3)  Anita Flatt further states:

“I remember the biggest shock to me was little boys still die from being circumcised.  And that one to Jim and I was the one–I mean, even like .1 percent chance that Josiah could have died, I needed to know that.  I didn’t know that.  No one told me that.  Bleeding.  Excessive bleeding.  Infection.  That’s all like stuff that it’s not like skin that doesn’t feel.  It’s stuff that feels.  It’s the sensation.  All that is gone. 

(A. Flatt Depo. pp. 52-53, Z. Baer Affd. Ex. 3)  Anita Flatt further testified:

“I should have been told all the risks that the medical trained professionals know.  I mean, from a medical standpoint they’re the experts.  I needed to rely upon them.  I am not a medical expert.  I needed to be told about the bleeding.  I needed to be told about any, any percentage chance of a death.  I needed to be told about infection issues.  I needed to be told about what is this you are taking away from him.  It’s full of nerves, it’s full of sensation.  I mean, it has an impact on his sexual life.  I need to be told that.  Those issues are for him to decide when he’s older.  The fact that the complications.  I think I needed to be told that–you know, I went in there thinking every guy looks the same circumcised.  That sometimes they don’t get circumcised right.  And I felt I needed to be told the risk that my son has a bulge of skin on the side of his penis.  I needed to know that it wasn’t just something so routine and just we do it routinely, we line them up, we go through, it’s nothing big.

The pain is a big one for me.  I needed to be told that it is painful.  My understanding from Dr. Kantak is, oh, nothing.  She uses something.  Nothing.  My son was in pain.  That was pain.”

(A. Flatt Depo. pp. 53-54, Z. Baer Affd. Ex. 3)

            James Flatt testified that he did not get any information from Dr. Kantak and recalls seeing nothing on circumcision.  (J. Flatt Depo. pp. 25, 29, Z. Baer Affd. Ex.4)  James Flatt testified that he should have been told that Josiah

“could die from the–that he could die from it.  That he would be in extreme pain.  That it’s–I don’t know how to say it.  When I seen–when he was circumcised, after I seen it, it was pretty graphic to me of the, I mean, the nature of the cut.  I mean, if I look at it I was never told that he could die, he could get infection, he could–I mean, that it’s going to take away sexual pleasures from him later on in life.  Everything.  I mean, nothing was expressed to me in that.”

(J. Flatt Depo. p. 32, Z. Baer Affd. Ex. 4)

            James Flatt unequivocally stated he would not have had his son circumcised if he had been aware of the risks.  (J. Flatt Depo. pp. 32, 33, 38 and 45, Z. Baer Affd. Ex. 4) 

            Based on these fundamental material disputed facts, summary judgment is not appropriate.  It is for a jury to decide the believability and credibility of witnesses describing these facts.  There is no basis for awarding summary judgment on an informed consent case when the entire case revolves around a “he said/she said” argument.  Dr. Kantak has no recollection of what she said, only a recollection of what her normal practice is.  Anita Flatt and James Flatt have vivid recollections of what was described to them.  Taking the evidence most favorable to Plaintiffs, and drawing all inferences from that testimony in their favor, summary judgment is not warranted.

            In fact, even if Plaintiffs had no expert witness testimony, a compelling argument could be made that given the standard of “best interest” of Josiah Flatt as described in Jaskoviak, summary judgment would be inappropriate.  According to the teaching of Jaskoviak, a standard set by law for physicians has been established.  That standard is a “best interest” standard as defined in N.D.C.C. §23-12-13(1)(3).  Even lay people understand it is not in the “best interest” of a child to be subjected to needless, painful surgery that amputates the most erogenous tissue of the human body.

V.  EXPERT WITNESSES

            A.        GENERALLY.

            Having established a material factual dispute as to what, if anything, was described to Anita Flatt regarding the risks and benefits of a circumcision, the next analysis must be a fleshing out of the medical standards on what the risks and benefits of the procedure are.  Under settled North Dakota law, expert medical testimony is generally necessary to identify the risks of treatment, the gravity, likelihood of occurrence, and reasonable alternatives.  Jaskoviak, 638 N.W.2d at 9, citing Winkjer v. Herr, 277 N.W.2d 579, 588 (N.D. 1979).  Plaintiffs have disclosed three expert witnesses prepared to describe the risks and benefits of circumcision and the elements of informed consent.

            B.        QUALIFICATIONS/PLAINTIFF EXPERTS.

            Let me first address the issue about qualification for expert witnesses.  Trial Court’s should be extremely cautious in entering summary judgment in medical malpractice cases because of a lack of expert testimony, in view of reluctance of members of the medical profession to testify against fellow physicians.  Winkjer v. Herr, 277 N.W.2d 579, 589 (N.D. 1979).  N.D.R.Civ.P. Rule 702 envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field in which they are to testify.  Meyer v. Rygg, 630 N.W.2d 62, 66 (N.D. 2001).  A physician can testify about another field of medicine within his experience, even though it is not his specialty.  Collom v. Pierson, 411 N.W.2d 92, 96 (N.D. 1987), cited with approval in Blessum v. Shelver, 567 N.W.2d 844 (N.D. 1997).  An objection about the extent of the expert’s experience affects the weight of the testimony and not its admissibility.  Id.  It is not necessary that a physician testifying as an expert witness about the care and treatment rendered by a defendant physician be commensurate or consistent with the same school of medicine, same field of medicine, and same general line of practice as defendant physician.  Collom Id. at 96.

            Defendants do not challenge the need for expert testimony to establish the standard of care, but argue that Dr. Robert VanHowe, a board certified pediatrician who has done primary research on the issue of circumcision, is not sufficiently qualified to testify as to the standard of care because he has never performed a circumcision.  Defendants argue that in spite of the fact that Dr. VanHowe was invited to present his findings of research of 4,500 medical articles on the issue of circumcision to the American Academy of Pediatrics Committee studying circumcision, he is unqualified to give an opinion as to the standard of care. 

            Additionally, Defendants content that Dr. Christopher Cold, a Pathologist who has extensively researched the subject of male infant circumcision and done primary research on the anatomy, histology, and development and function of the foreskin is insufficiently qualified.  (Christopher Cold Affidavit February 28 2002, Z. Baer. Affd. Ex. 11)

            Finally, Defendants contend that Dr. Eileen Wayne, a surgeon specializing in opthomology who is regularly required to obtain “informed consent” for procedures is not sufficiently qualified to help the finder of fact.  Dr. Wayne is a member of the American College of Legal Medicine, and identified as an expert on informed consent.  (Z. Baer Affd. Ex. 12)  Dr. Wayne is the author of “Informed Consent for Medically Necessary Circumcision”, which is a partial list of the risks and benefits associated with the circumcision procedure affirmed by defense experts Dr. Kaplan and Dr. Shoemaker.  (Wayne Depo. Ex. 3, Z. Baer Affd. Ex. 6)  Dr. Wayne is the author of draft legislation concerning informed consent and medical accountability submitted to Congress in 1994.  (Wayne Depo. Ex. 7, Z. Baer Affd. Ex. 6) 

            The attack by Defendants on the qualifications of Drs. VanHowe, Cold and Wayne, to testify on the standard of care for physicians who circumcise, suggests a standard of care rejected by Jaskovick in that a Plaintiffs’ cause of action is not limited to the “existence and nonperformance of a relevant professional tradition” and that enlightened societies demand a standard set by law for physicians.  Id. at 8.  After all, no less authority than defense expert Dr. Kaplan wrote that circumcision is traditionally done by “inexperienced operators who are neither urologists nor surgeons”. 

            There is no Board who reviews qualifications to perform a circumcision.  Physicians present nothing to the hospital to show they are skilled and qualified to perform circumcisions.  (Wayne Depo. p. 13, Z. Baer Affd. Ex. 6) 

            Defense expert Dr. Shoemaker agrees with Dr. Wayne that unnecessary surgery is called fraud and abuse.  (Shoemaker Depo. p. 122, Z. Baer Affd. Ex. 9; Wayne Depo. p. 37, Z. Baer Affd. Ex. 6)  In a broader sense, Dr. Wayne is of the opinion that performing unnecessary and nonmedically indicated procedures on nonconsenting patients is fraud and abuse.  (Wayne Depo. pp. 38-39, Z. Baer Affd. Ex. 6)  She further indicates that the standard of care in medical practice is that a parent’s consent for unnecessary surgery on a minor infant is invalid.  (Wayne Depo. p. 36, Z. Baer Affd. Ex. 6)  Dr. Wayne is of the opinion that circumcision should not have been offered to the parents because it was not medically indicated.  (Wayne Depo. p. 62, Z. Baer Affd. Ex. 6)  All of the Plaintiffs’ witnesses possess an abundance of knowledge through experience, research and medical practice touching on the issues of circumcision and informed consent.

            1.         Dr. Robert VanHowe, Board Certified Pediatrician.

            Dr. VanHowe is a Board certified pediatrician, a colleague of Defendant Dr. Kantak and defense expert witnesses Drs. Lunn and Shoemaker.  Although Dr. VanHowe does not perform circumcisions for philosophical reasons, he has extensively researched, written and published on  the issue.  Dr. VanHowe has reviewed at least 4,500 articles on the issue of genital alteration.  (VanHowe Depo. pp. 1, 3-4, 65-66, Z. Baer Affd. Ex. 7)  Dr. VanHowe has been retained and acted as an expert witness in a number of cases involving circumcision.  (VanHowe Depo. pp. 16-17, Z. Baer Affd. Ex. 7)  Dr. VanHowe was invited by the American Academy of Pediatrics Task Force on Circumcision to give a presentation on his findings of the literature research, which presentation lasted 2 _ to 3 hours.  (VanHowe Depo. p. 69, Z. Baer Affd. Ex. 7)  Dr. VanHowe is a peer reviewer for a number of publications.  (VanHowe Depo. p. 75, Z. Baer Affd. Ex. 7) 

            Based on Dr. Van Howe’s experience, expertise, education and training, Dr. VanHowe would be prepared to testify that surgical amputation of the foreskin from the male penis results in damage; surgical amputation of the foreskin from the infant male penis is extremely painful; surgical amputation of the foreskin from the infant male penis has early complications such as hemorrhage, infection, amputation of glans penis, amputation of the entire penis and death; surgical amputation of the foreskin from infant male penis has been linked to an increased rate of hospitalization in the first years of life; surgical amputation of the foreskin from the infant male penis has delayed complications, including miatal stenosis, hidden or buried penis; surgical amputation of the foreskin results in psychological complications; surgical amputation of the foreskin alters sexual practices.  (VanHowe Affd. February 10, 2000, Z. Baer Affd. Ex. 7) 

            In addition, based on his experience as a medical doctor and his research on genital alteration, he is prepared to testify there are no clear medical benefits to male genital alteration.  Id. at p. 3.  He is further prepared to testify that based on his experience as a medical doctor and research on genital alteration that overall male genital alteration impairs health and costs more money than it saves.  Id. at p. 6.  He is further prepared to testify that based on his experience as a medical doctor and research on genital alteration that some forms of female genital alteration which are illegal are anatomically identical to removal of the prepuce from the male penis.  Id. at p. 7.  He is further prepared to testify that the American Academy of Pediatrics recommends that where a parent requests an intervention that is not in the child’s best interest, that the physician has a duty to tell the parents no and to protect their patient who is the child.  (VanHowe Depo. p. 83, Z. Baer Affd. Ex. 7) 

            He is further prepared to testify that parents making a decision for infants must meet two criteria in order to have valid consent.  First, a substitute judgment where you determine what would the child choose for themselves if they could express a choice, or, you look to the child’s best interest.  The complications and side effects and downside of circumcision far outweigh any potential benefits that may exist.  (VanHowe Depo. pp. 81-82, Z. Baer Affd. Ex. 7)

            VanHowe is further prepared to testify that there are certain elements of consent which include disclosure of all known complications from the procedure, that once full disclosure has been given, the medical doctor must determine that the consent giver fully understands what has been disclosed to them, and third, that you have to have a lack of coercion.  In his opinion, based on the record, Dr. Kantak did not meet the standard of care for informed consent for the procedure of circumcision.  (VanHowe Depo. pp. 89-90, Z. Baer Affd. Ex. 7)

            2.         Dr. Christopher Cold, Board Certified Pathologist.

            Dr. Christopher Cold has extensively researched the foreskin and glans penis.  Dr. Christopher Cold is prepared to testify that based on review of the medical records, the deposition of Dr. Sunita Kantak, that she was unfamiliar with the normal anatomy, histology and development of the penis.  She also exhibited very poor knowledge of how the Gomco clamp works, and there was no evidence that she had a thorough understanding of the surgical procedure.  She had no knowledge of the erogenous nature of the foreskin, the normal maturation of the penis, the indications for circumcisions, nor a full understanding of the complications of newborn circumcision.  Dr. Cold is prepared to testify that the injury of the foreskin includes the loss of complete coverage of the glans penis, loss of mobile skin and mucosa to cover the penis during erection, loss of erogenous penile mucocutaneous tissue, and a permanent scar on the penis.  He is prepared to testify that Josiah Flatt was harmed as a result of the substandard medical care provided by Dr. Kantak and MeritCare.  (See Answers to Interrogatories and Request for Production of Documents to Plaintiff Set II, Z. Baer Affd. Ex. 14; see also Affidavit of Dr. Christopher Cold February 28, 2000, Z. Baer Affd. Ex. 11)

            Dr. Cold is further prepared to testify “I have reviewed the medical records of Josiah Flatt, and find serious deficiencies in his care.  The informed consent does not list a true list of complications.  The operative note gives no information about the amount of anesthesia given, or the manner of administration.  The operative note does not describe what volume of tissue was removed, and does not mention that the tissue was submitted to pathology for histo-logic examination or used for any experiments.  There is no mention of any abnormality of the foreskin, and therefore, it must assume that the penis of Josiah Flatt was entirely normal before the surgeon amputated a portion of the penis.”  Id. at ¶ 17.

            It is a physician’s duty to protect patient’s from unnecessary surgery.  Vulnerable patients such as infants and children must be vigorously protected from unnecessary surgery.  Circumcision takes away a man’s opportunity to choose whether he has a complete penis or a scar on his penis.  To take away this choice and replace it with a scar violates the physician’s oath to first do no harm.  (Affidavit of Chris Cold, para. 17, 18, Z. Baer Affd. Ex. 11)

            3.         Dr. Eileen Wayne, Board Certified Opthomologist and Informed Consent Expert.

            Dr. Eileen Wayne is prepared to testify as to the standard of care that applies to pediatrician Dr. Kantak and to MeritCare as it relates to the obtaining of informed consent.  Dr. Wayne would testify as to the standard of care applying to any physician or surgeon obtaining consent from a proxy would require

·                    determining and meeting the child’s needs

·                    protecting the child from exploitation

·                    protecting the child from noxious stimuli, pain, suffering and risk

·                    protecting the rights of the child to autonomy

·                    protecting the right of the child to physical integrity

·                    protecting the child from sexual abuse

·                    empowering the parent/child relationship and emotional bonding.

            She would further testify that Dr. Kantak departed from the standard of care in that she

·                    Perpetrated unnecessary surgery upon a nonconsenting, protesting child.

·                    Subjected the child to noxious pain and suffering, and unnecessary surgical risk.

·                    Waited only one minute, rather than the usual 15 minutes, for lidocaine to take effect.

·                    Failed to test whether the lidocaine had taken effect.

·                    Intentionally inflicted the pain of both the needle sticks and an unanesthetised circumcision.

·                    Failed to provide postoperative pain control.

·                    Violated the child’s right to future autonomy.

·                    Destroyed the physical, sexual and erogenous integrity of the child’s penis.

·                     Did not remember what she was taught in medical school about the immunologic, erogenous and mechnical gliding functions of the foreskin.

·                    Could not therefore disclose that information to the mother

·                    Failed to disclose the fact that men are attempting to restore a quasi-foreskin and why they need to do so.

·                    Failed to disclose that her son, as an adult, may be angry with her for altering his sex organ.

·                    Failed to dictate an operative report.  Cannot name the nurse assistant or witness.  Cannot tell us if the child bled, requiring damaging cautery or sutures causing circulatory compromise.  Cannot tell us the millimeters of foreskin amputated.  Cannot tell us whether the foreskin was sold or disposed of in an appropriate manner.

Further, she is prepared to testify that Josiah’s injuries include:

·                    Loss of the foreskin.

·                    Loss of the pleasurable erogenous sex nerves that were in the amputated foreskin.

·                    Loss of the lubricating mucus membranes

·                    Loss of the immunologic lysozyme produced by the mucus membranes.

·                    Loss of the frictionless gliding mechanism and sheath.

·                    Loss of sensitivity of the remaining glans with keratinization and drying of what should be a moist sexually sensitive glans.

·                    Loss of the sex appeal and beauty of a red moist glans slipping in and out of its sheath to an exposed dry, pink, keratinized one.

·                    Being doomed, as an adult, to dry sex without mucus lubrication and without the protective, frictionless, gliding sheath of the foreskin.

·                    Being doomed to never know the fullness and ecstacy of sexual orgasm with a whole penis.

·                    Decreased desirability as a future mate and sex partners.

·                    Loss of self esteem, knowing that his pediatrician amputated a sexual part of him and tossed it in the trash.

·                    Lifelong increased risk of meatal stenosis.

·                    Lifelong increased risk of early sexual decline in performance.

·                    Imprinting the limbic system with penis pain instead of penis pleasure.

·                    Imprinting the association of pain, violence, and sex.

·                    Imprinting suffering, anxiety, and victim mentality.

·                    Imprinting “learned helplessness.”

·                    Weakening the ability of the child to trust.

·                    Weakening of the pleasurable emotional bond between parent and child.

(Plaintiffs’ Answers to Interrogatories Set II, Z. Baer Affd. Ex. 14)

            Elements of informed consent are not circumcision specific.  (Kantak Depo. Ex. 12, Z. Baer Affd. Ex. 5)  The extensive experience of the Plaintiffs’ expert witnesses more than meets the standard required under N.D.R.Ev. Rule 702, particularly in light of the new standard articulated by the North Dakota Supreme Court that the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision.  All risks potentially affecting the decision must be unmasked.  Jaskoviak v. Gruver, 638 N.W.2d 1, 8 (N.D. 2002).  In light of Jaskoviak, and in light of Anita Flatt’s testimony that had she been informed of the risks, she would not have consented, and James Flatt’s positive testimony that if he had known of the risks, he would not have consented to the procedure.  Plaintiff has provided more than adequate expert testimony, the weight of which can be judged by the jury.  (A. Flatt Depo. p. 53, Z. Baer Affd. Ex. 3; J. Flatt Depo. p. 45, Z. Baer Affd. Ex. 4)

            C.        DEFENSE EXPERTS CONCUR WITH PLAINTIFF’S EXPERTS.

            Not only do Plaintiffs’ experts establish the standard of care, Defendants and Defendants’ experts agree.  For example, Defendant Dr. Kantak agrees that the AMA Policy E-8.08 addressing informed consent accurately reflects the standard of practice.  (Kantak Depo. p. 105, Kantak Ex. 8, Z. Baer Affd. Ex. 5)  The AMA Policy on informed consent establishes an ethical obligation to help the patient make choices from therapeutic alternatives.  Informed consent is defined as a “basic social policy” for which only two exceptions apply.  Those exceptions are when a patient is “incapable of consenting and harm from failure to treat is imminent” or where disclosure would cause a threat of psychological harm to the patient. 

            In addition, Dr. Kantak believes that the AAP Policy on informed consent dated February 1995, sets the standard of practice for informed consent amongst pediatricians.  The AAP Policy indicates that a medical doctor has a legal and ethical duty to his/her child patient based on patient needs, not on what someone else expresses.  (Kantak Depo. pp. 109-110; Kantak Depo. Ex. 12, Z. Baer Affd. Ex. 5)  Dr. Kaplan, one of the defense experts, agrees that complications of circumcision include bleeding, phimosis, concealed penis, skin bridges, infections, urinary retention, infection, maetitis, chordee, inclusion cysts, lymph edema, fistula, necrosis, hypospadeas and epispadeas, complications of plastibel, impotence, psycho social issues, and pain and anesthesia.  (Kaplan Depo. pp. 41-42, Z. Baer Affd. Ex. 5; Complications of Circumcision, George W. Kaplan, M.D., Urologic Clinics of North America, Vol. 10, No. 3, pp. 543-549, August 1983, Z. Baer Affd. Ex. 15; Common Problems in Pediatric Urology, Neonatal Circumcision, Niku, Stock, Kaplan, Vol. 22, No. 1, February 1995, Z. Baer Affd. Ex. 16)  Most complications of surgery occur at the hands of inexperienced operators who are neither urologists nor surgeons.  (Kaplan Depo. p. 43; Z. Baer Affd. Ex. 5)  The Doctrine of Informed Consent, according to Dr. Kaplan, includes a complete explanation of the benefits and risks of any procedure.  (Kaplan Depo. p. 137, Z. Baer Affd. Ex. 5)  In order to make a determination of whether circumcision is proper, a parent must look to the child’s best interest.  (Kaplan Depo. p. 139, Z. Baer Affd. Ex. 5)  The standard of practice on obtaining informed consent would require a medical doctor to make a determination that the procedure was in the best interests of the child or life saving.  (Shoemaker Depo. p. 31, Z. Baer Affd. Ex. 9)  A child is born and endowed with all the rights and privileges of a human being and a medical doctor has a duty to respect that person.  (Shoemaker Depo. p. 32, Z. Baer Affd. Ex. 9)

            In order to do a circumcision, a doctor must first tear the connective tissue between the foreskin and the glans penis with a forceps.  The doctor then uses a blunt instrument to tear the epithelium.  The doctor then places a clamp on the foreskin and tightens the clamp to crush the vascular system and then amputates the foreskin with a scalpel.  All medical complications known to medical doctors should be discussed with the patient to obtain informed consent.  (Shoemaker Depo. p. 87, Z. Baer Affd. Ex. 9)

            Babies subjected to circumcision, even with analgesia, have been known to suffer elevated blood pressure, elevated pulse, elevated cortisol levels, high pitch crying, all of which are indications of stress in the baby while undergoing circumcision.  Other symptoms are breath holding, total body rigidity, vomiting, passing out, respiratory or cardiac arrest which would all be responses to pain or stress.  (Shoemaker Depo. pp. 97-100, Z. Baer Affd. Ex. 9)  When prepared for circumcision, babies, in their rudimentary way, communicate their objection to the procedure by crying, drawing their legs up, vomiting and passing out.  (Shoemaker Depo. pp. 101-102, Z. Baer Affd. Ex. 9) 

            The standard of care for obtaining informed consent can be altered by the State legislature which would trump medical practice.  (Shoemaker Depo. p. 53, Z. Baer Affd. Ex. 9)  Dr. Shoemaker is not aware of a law in the State of North Dakota dealing with informed consent.  (Shoemaker Depo. p. 59, Z. Baer Affd. Ex. 9; Kantak Depo. Ex. 11, Z. Baer Affd. Ex. 5).   N.D.C.C. §23-12-13.

            From review of the medical records and depositions, Dr. Shoemaker believes that when born, Josiah Flatt exhibited no indication for surgery, was in no immediate distress, and there would be no harm in waiting until Josiah reached age 18.  The medical records indicated no complaint about the child’s penis, and no physical finding suggested a need for surgery.  The surgical note of Dr. Kantak does not meet JCHO standards.  (Shoemaker Depo. pp. 116-117, Z. Baer Affd. Ex. 9)  Performing unnecessary surgery and billing for it is fraud.  (Shoemaker Depo. p. 122, Z. Baer Affd. Ex. 9)  In medical practice, it is frequently taught that “if it is not documented, it was not done”.  (Shoemaker Depo. pp. 122-123, Z. Baer Affd. Ex. 9)

VI.  CONCLUSION

            The Motion for Summary Judgment is so deficient on the merits to warrant sanctions.  There is an abundance of material issues of fact even without expert testimony to warrant trial.  The Defendants zealous attempt to mislead the Court as to the issue has burdened and harassed the Plaintiff.  The Motion should be denied in all respects.

            Dated:  March 29, 2002

                                                                                    ZENAS BAER AND ASSOCIATES

                                                                                    By                                                               

                                                                                        Zenas Baer (#05460)
                                                                                        Attorney for Plaintiffs
                                                                                         331 6^th St., Box 249
                                                                                         Hawley, MN 56549
                                                                                         (218) 483-3372

Plaintiff's Reply to Defendants' Motion to Exclude

_______________________________________

State of North Dakota In District Court

County of Cass East Central Judicial District

____________________________________________________

Josiah Flatt by and through his Natural          PLAINTIFF’S REPLY  MEMORANDUM

Guardians Anita Flatt and James Flatt,           TO DEFENDANTS’ MOTION TO

                              Plaintiffs                                  EXCLUDE VIDEOTAPES, SURGICAL

                                                                                INSTRUMENTS, MINUTES OF

                                   vs.                                        MEETINGS, AND OTHER  

                                                                   "NON-INFORMED CONSENT

                                                                     RELATED" EXHIBITS

Sunita A. Kantak, M.D., and                       

MeritCare Medical Center,                                    Court File No. CV-99-03761 

                         Defendants.

______________________________________________

I.  BIFURCATION

            Plaintiff joins in Defendants’ Memorandum seeking an Order denying bifurcation of liability and damages.  Plaintiff believes that the issues are so intertwined, bifurcation would be prejudicial and not in furtherance of judicial economy.  The Court should not bifurcate the issues of liability and damages, and rests on its previous Memorandum in support thereof.

II.  EVIDENTIARY ISSUES

            A.        SUMMARY

            Broadly speaking, the Defendants have brought Motions in Limine to exclude evidence including:  videotape procedures of available alternative methods of circumcision (Garrigus and Barichello videos); a visual animation of a foreskin in action (Tr. Ex. 22, Z. Baer Affd. Ex. 9); minutes of meetings of the MeritCare Pediatrics Group, MeritCare Hospital (Tr. Ex. 18-20, Z. Baer Affd. Ex. 5-7), surgical instruments (Tr. Ex. 3, Z. Baer Affd. Ex. 2), 33 photographs of the natural male penis (Tr. Ex. 21, Z. Baer Affd. Ex. 8), handwritten notes of Anita Flatt (Tr. Ex. 15, Z. Baer Affd. Ex. 4); and billing records (Tr. Ex. 8, Z. Baer Affd. Ex. 3)

            The law on admissibility of evidence has been covered in the Memorandum in support of the introduction of the Barichello and Garrigus videos, which is incorporated herein by reference, and will only briefly be touched on here. 

            Relevant evidence is admissible.  NDRE 402.  “Relevant” evidence is any testimony, drawing, photograph, design or other testimonial or documentary evidence that will make an issue relevant to the proceeding more probable or less probable.  NDRE 401.  Relevant evidence can be excluded only if the Court finds the prejudice, confusion or waste of time outweighs the probative value.  NDRE 403.

            All of the exhibits are relevant to issues in dispute in this informed consent case.  The videos are an accurate representation of the procedure performed on Josiah Flatt and the available alternative methods of performing circumcision.  The tangible evidence aids in proving best interests of the patient, damages, pain, and aids in judging the credibility of the witnesses.

            B.        LEGAL ANALYSIS--STANDARD FOR INFORMED CONSENT

            In an informed consent case, it is the duty of the doctor to disclose “the available choices with respect to the proposed therapy and of the material and known risks potentially involved in each”.  Winkjer v. Herr, 277 N.W.2d 579, 587 (N.D. 1979).  In North Dakota, the Courts adopt an “objective” or “material risk” standard which is also referred to as the “patient rule”.  The test is whether the physician “disclosed all those facts, risks and alternatives that a reasonable person in the situation which the physician knew or should have known to be the plaintiffs would deem
significant or material in making a decision to undergo the recommended treatment . . .”  Jaskoviak v. Gruver, 638 N.W.2d 1, 6, 7 (N.D. 2002). 

            “A patient’s right of self-determination in [a] particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”  Jaskoviak at 7, citing Canterbury v. Spence, 464 F.2d 772 (1972), cert. denied 409 U.S. 1064.  The test for determining whether a “particular peril must be divulged is its materiality to the patient’s decision:  all risks potentially affecting the decision must be unmasked.”  Jaskoviak at 7.

            In an informed consent case, a physician must disclose the general nature of the contemplated procedure, the material risk involved in the procedure, the probability of success associated with the procedure, the prognosis if the procedure is not carried out, and the existence and risks of any alternatives to the procedure.  Jaskoviak at 7, citations omitted. 

            In determining what material risks need to be disclosed, the Courts apply a two prong test: 

            1.         An examination of the existence and nature of the risk and the probability of its occurrence; and

            2.         A determination by the trier of fact [the jury] of whether the risk is the type of harm which a reasonable patient would consider in deciding on medical treatment.

Jaskoviak at 7, citing Guidry v. Neu, 708 So.2d 740 (L.A. Ct. App. 1997).  Whether or not a risk is material to warrant disclosure is a function of the “severity of the potential injury and of the likelihood it will occur”.  Jaskoviak at 7. Ultimately a trier of fact must determine whether a reasonable person in the Plaintiff's position would attach significance to the specific risk.  Jaskoviak at 7.

            C.        APPLYING LAW TO EXHIBITS

            Applying the law to the specific items of evidence offered, it is clear that they are all admissible.

            1.         VIDEOTAPES - SURGICAL EQUIPMENT

            Defendants object to the introduction of the Barichello video and the Garrigus video largely based on Dr. Kantak’s Affidavit indicating that she uses a different technique in doing the circumcision.  Although it may be true that Dr. Kantak uses a different technique in performing circumcisions than is depicted in the video, the technique shown in the video does not deviate from the national standard of care.  There is nothing in Dr. Kantak’s Affidavit that suggests the physicians who are videotaped on either the Barichello video or the Garrigus video departed from the accepted national standard of care in performing a circumcision using alternative surgical techniques.  Only if we had a video of Dr. Kantak performing a circumcision on Josiah Flatt would Plaintiff be able to meet the threshold argued by Defendant.  Perhaps Dr. Kantak will invite Plaintiff to video her next circumcision, so we can have a more accurate depiction of the procedure.

            (a)        National Standard of Care.

            Dr. Kantak has admitted the applicable standard of care for the obtaining of informed consent is set forth by the American Medical Association in its March 1981 Statement.  (S. Kantak Depo. pp. 104-105, and Depo. Ex. 7 and 8, Z. Baer Affd. Ex. 10)  The applicable standard for obtaining informed consent requires Dr. Kantak to allow the patient (in this case Josiah Flatt) to make his own determination on treatment.  The standard of care states that it is the physician’s obligation

“to present the medical facts accurately . . . to the individual responsible for the patient’s care and to make recommendations for management in accordance with good medical practice.  The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice.  Informed consent is a basic social policy for which exceptions are permitted: (1) where the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent; or (2) when risk-disclosure poses such a serious psychological threat of detriment to the patient as to be medically contraindicated.  Social policy does not accept the paternalistic view that the physician may remain silent because divulgence might prompt the patient to forego needed therapy.  Rational informed patients should not be expected to act uniformly, even under similar circumstances, in agreeing or to refusing treatment.” 

(AMA Policy Finder E-8.08 Informed Consent issued March 1981, (bold supplied), S. Kantak Ex. 7 and 8, Z. Baer Affd. Ex. 10). 

            More specifically and more to the point, Dr. Sunita Kantak, as a member of the American Academy of Pediatrics (AAP), follows the standard recommendations of bulletins issued by the AAP.  (S. Kantak Depo. pp. 108-109, Z. Baer Affd. Ex. 10)  The AAP has issued a policy statement on Informed Consent, Parental Permission, and Assent in Pediatric Practice.  RE9510, Pediatrics Vol. 95, No. 2, February 1995.  The AAP Statement on Informed Consent is particularly applicable in the context of circumcision.  The use of "proxy consent" according to the AAP Statement,

“poses serious problems for pediatric health care providers.  Such providers have legal and ethical duties to their child patients to render competent medical care based on what the patient needs, not what someone else expresses.  Although impasses regarding the interests of minors and their expressed wishes of their parents or guardians are rare, the pediatrician’s responsibilities to his or her patient exist independent of parental desires or proxy consent.”

(Informed Consent, Parental Permission, and Assent in Pediatric Practice (RE 9510), S. Kantak Depo. Ex. 12, Z. Baer Affd. Ex. 10)  The applicable standard in obtaining proxy consent requires an evaluation of whether or not the surgical removal of the foreskin was based on the patient’s [Josiah Flatt’s] need, not what their parent expresses. 

            Dr. Shoemaker, a defense expert, also admits that the AAP Statement (S. Kantak Depo. Ex. 12, Z. Baer Affd. Ex. 10), is an accurate statement of the standard of care as it pertains to informed consent.  (Shoemaker Depo. pp. 29-32, Z. Baer Affd. Ex. 11)  Dr. Shoemaker goes one step further and describes the various elements necessary for obtaining informed consent from a parent.  If a patient is an infant, a medical doctor cannot do a procedure on the patient (the infant) “unless [Dr. Shoemaker] concluded it was in the best interest of the child to do the procedure”.  (Shoemaker Depo. p. 31, Z. Baer Affd. Ex. 11)  The elements of informed consent would require the following:

            1.         Provision of information:  Patient should have explanations, in understandable language, of the nature of the ailment or condition; the nature of proposed diagnostic steps and/or treatment, and the probability of their success; the existence and nature of the risks involved; and the existence, potential benefits, and risk of recommended alternative treatment (including the choice of no treatment).

            2.         Assessment of the patient’s understanding of the above information.

            3.         Assessment, if only tacit, of the capacity of the patient or surrogate, to make the necessary decision.

            4.         Assurance, insofar as possible, that the patient has the freedom to choose among the medical alternatives without coercion or manipulation.”

(Informed Consent, Parental Permission and Assent in Pediatric Practice (RE 95-10), S. Kantak Depo. Ex. 12, p. 2, Z. Baer Affd. Ex. 10)  (Shoemaker Depo. p. 33, Z. Baer Affd. Ex. 11)

            Relevant to the Doctrine of Proxy Informed Consent is an assessment that the parent knows the nature of the “proposed diagnostic steps and/or treatments”.  A circumcision is a specific surgical procedure performed on healthy newborn infant males, not a procedure for therapeutic purposes--in short it is a cosmetic procedure.  One cannot call it “elective” in the true sense because the baby does not elect to have his penis cut.

            Dr. Shoemaker agrees that the standard of care in the medical practice can be modified by legislation.  (Shoemaker Depo. pp. 58-59, Z. Baer Affd. Ex. 11)  Dr. Shoemaker was, at the time of the deposition, February 27, 2002, unaware of any North Dakota law concerning informed consent. 

            (b)        Statutory Informed Consent Standard-N.D.C.C. 23-12-13.

            Remarkably, the Statements of the AAP and the AMA tract very closely the statutory law entitled “Persons Authorized to Provide Informed Consent to Health Care for Incapacitated Persons--Priority” (N.D.C.C. 23-12-13).  The informed consent law sets forth a system for  medical professionals to obtain “informed consent”.  Section 1 deals with the priority of individuals authorized to give “proxy consent” to an incapacitated individual which includes an infant.  Subd. 3 provides that

“before any person authorized to provide informed consent pursuant to this section exercises that authority, the person must first determine in good faith that the patient, if not incapacitated, would consent to the proposed health care.  If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient’s best interest.”

N.D.C.C. 23-12-13.

            Accordingly, under North Dakota statutory law, a material issue for the jury’s determination is whether or not Josiah Flatt, if not incapacitated, would consent to the circumcision, or, and perhaps more importantly, was the circumcision in the patient’s “best interests”.  In order to determine whether or not the surgery would have been consented had Josiah Flatt been old enough to consent, the jury needs to understand the procedure, understand what surgical equipment is used, and determine whether or not a decision to circumcise, for no therapeutic reason, is in Josiah Flatt’s “best interests”.  A video describing the procedure is the best teaching tool to be used.

            The informed consent statute, N.D.C.C. 23-12-13, was amended during the same legislative session as the Female Genital Mutilation Law codified at 12.1-36-01, (August 1995), was enacted.  It is a felony for a medical doctor to surgically alter healthy female genital tissue.^{[1 footnote]}  The passage of the State law banning alteration of female genitalia is, according to Dr. Shoemaker, an example of the standard of medical practice being altered by legislative enactment.  (Shoemaker Depo. p. 58, Z. Baer Affd. Ex. 11) 

            The informed consent statute provides a legislative standard for health care decisions to be made by an authorized person, typically the parent of the minor child.  N.D.C.C. 23-12-13(1)(a)-(i).  A person authorized to consent to health care on behalf of a minor child must first determine that the patient, if not incapacitated, would consent to the proposed health care.  1999 N.D. Opinion Attorney General 1, 1999 WL14712 (NDAG) at p. 3.  (Z. Baer Affd. Ex. 24)  In order to determine if Josiah Flatt would consent to the procedure, Anita Flatt must know what the procedure entails, the restraints used and the tools used to crush the foreskin.  After viewing the procedure, Plaintiff is confident few people would consent. 

                         (i)         Best Interests of Child.

            If a determination on whether the patient would have consented to the procedure, if not incapacitated, cannot be made, then the person consenting to the health care must make the decision based on the “best interest” of the patient. 

            Although not defined in the context of a health care decisions, “best interests” of a child is a fairly well developed concept in the State of North Dakota. “Best interests” of the child includes an analysis of a number of factors.  N.D.C.C. 14-09-06.2. Relevant to the circumcision issue is a presumption of unfitness if any domestic violence is proven.  The law presumes unfitness to parent if a Court finds credible evidence that “domestic violence” has occurred, it creates a rebuttable presumption that a parent who has perpetrated the “domestic violence” may not be awarded sole or joint custody of the child.  The rebuttable presumption can be overcome only by clear and convincing evidence that it is in the child’s best interest to retain a custodial relationship.  Id.  Domestic violence is defined to be “physical harm, bodily injury, . . . or assault . . . on the complaining family or household members.”  by N.D.C.C. 14-07.1-01

            In the context of circumcision, it is clear that the act of circumcision requires the use of restraining devices (circumstraint); the use of surgical tools including clamps capable of exerting between 8,000 and 40,000 foot pounds of pressure per square inch on the baby’s newborn foreskin; scissors, knives and forceps.  The result is the amputation of otherwise normal, healthy tissue, without a medical diagnosis.  It causes injury, physical harm and a permanent scar.  If such procedure were performed by a parent, the parent would be criminally charged and custody and care of the child would be denied.  In short, circumcision causes physical harm, bodily harm, and is an assault on the infant for no therapeutic reason.  Thinking, concerned and passionate people must ask why we as a society permit such an assault on the most vulnerable citizens by a medical community for no therapeutic reason.  The medical community is merely carrying out the uninformed and ignorant wishes of parents.

            In determining “best interests” in a custodial context, would the Court take into consideration the one parent’s consent to unnecessary harm on an infant, such as allowing the piercing of an infant’s ear?  tongue?  nipple?  navel?  clitoris?  foreskin?  If these forms of assault would be taken into consideration for custody determinations, “best interests” analysis would also include the amputation of the most erogenous tissue of the male body for no therapeutic reason, by medical doctors who have an ethical duty to protect the baby from unnecessary surgery.

            The performance of a circumcision and a video depiction of how circumcisions are performed would be relevant to a jury to determine if indeed the circumcision procedure was in the “best interests” of the child as required by N.D.C.C. 23-12-13. 

            (c)        Myth–Circumcision-“Just a Little Snip”.

            The medical community has, for decades, perhaps centuries, continued the myth that circumcision was “just a little snip”.  “Doctors Warned on Snip Risks by Honey Webb” stated the headline of the Sydney Morning Herald, Sydney NSW, Australia, Saturday, October 4, 1997, warning doctors of their potential risks of negligence claims if they failed to inform parents of all possible side effects.  The warning was issued by the Royal Melborne Institute of Technology.  (Z. Baer Affd. Ex. 20)

            The British Journal of Urology, 77, June 1996, p. 924, states that circumcision is not a “simple, minor snip”, but rather a major surgery and needs careful thought and skill to perform.  (Z. Baer Affd. Ex. 21) The British Medical Journal, Vol. 311, No. 7008 (September 23, 1995), pp. 816-817, reviewed a film produced by Jewish journalist, Victor Schoenfeld.  The reviewer stated “the myth that circumcision is just a ‘quick snip’ and that newborns don’t feel pain anyway were comprehensively demolished by the evidence in this generally well-balanced documentary.”  (Z. Baer Affd. Ex. 22). 

            Clearly, the medical profession has perpetuated the myth and convinced many, many parents that circumcision was simply a snip of minor import.  The procedure is hidden from parents.  The circumcision procedure itself must be in all its particulars “unmasked”.  Without showing what surgical instruments are used to perform the circumcision, Plaintiff will be unable to counter the myth that it is just a snip.  The jury will not be able to determine if a parent could reasonably believe the procedure was in the “best interests” of the infant incapable of providing consent, or determining whether or not the child would have made the decision to be circumcised had he not been incapacitated by his tender age.

            In a series of articles in the Maine Times, January 2-8, 1997, Vol. 29, No. 9, Deputy Editor Sharon Bass addressed the issue entitled “Circumcision Persists Despite Doctors’ Disapproval”.  In the article, she quotes individuals who express the opinion “it’s not just a little snip of skin”.  The article concludes with the paragraph “risks and pain coupled with what most agree is an unnecessary operation drove Kenneth Baker years ago to require parents to watch a circumcision, either videotaped or live, before he would agree to perform one on their son.  No one ever did.”  (Z. Baer Affd. Ex. 23)

            Since the circumcisions depicted in the videotape accurately show physicians doing a circumcision applying the national standard using standard surgical equipment, it is immaterial that perhaps tiny nuances in differences in methods of performing the circumcision are prejudicial to the Defendant.  Although Dr. Kantak may indeed do some of the procedures differently than depicted in the videotape, the result is the same, i.e. a severed foreskin for no therapeutic reason which violates her ethical obligation to her child patient, and violates State law inasmuch as the performance of unnecessary surgery cannot, under any circumstances, be deemed to be in the “best interests” of the patient, nor can there be any determination that Josiah Flatt would have wanted the procedure had he been able to consent. 

            (d)        Babies Resist Circumcision.

            Babies naturally resist circumcision, albeit in a nonverbal way, by crying, screaming and wiggling.  All are indicia of the child’s expression of his intent that he does not want the procedure done.  Dr. Shoemaker testified that an infant who is strapped on a circumstraint shows a number of indicia of stress induced reactions, including, but not limited to, resisting the restraints; elevated blood pressure; elevated cortisone levels; high pitched crying; breath holding; body rigidity; vomiting; passing out; respiratory or cardiac arrest.  (Shoemaker Depo. pp. 98-99, Z. Baer Affd. Ex. 11).  In order for the jury to adequately determine whether or not the child would have consented to the procedure had he been able to consent, or determine the issue of “best interests” of the child, the jury must be able to visualize a circumcision procedure that does accurately show the alternate types of procedures available to the medical profession, and particularly show a circumcision procedure done with the Gomco clamp.  Cold Affidavit, Z. Baer Affd. Ex. 19)

            (e)        Analgesia.

            The Defendant raised the issue of lack of knowledge of how much analgesia was used in the circumcisions performed in the Garrigus and Barichello videos.  According to the nurses who have attended circumcisions with Dr. Kantak regularly, it is difficult to predict how babies respond to circumcision with or without Lydocaine.  Elizabeth Mattis, a 29-year employee of MeritCare Hospital, has observed circumcisions performed with anesthesia and without anesthesia, and states that at times it is difficult to predict what the reaction of the baby will be.  She says “well some babies are gonna cry whether they receive anesthesia or not.”  (Mattis Depo. p. 11, Z. Baer Affd. Ex. 12)  Mattis has observed physicians doing circumcisions without anesthesia and indicates that she cannot tell the difference in the reaction of the babies with or without anesthesia.  (Mattis Depo. pp. 10-11, 14, Z. Baer Affd. Ex. 12)  Rita Frovarp, a Registered Nurse at MeritCare Medical Center since 1981, indicates that based on years of experience, that after the use of Lydocaine became standard, she could note that “there are times babies may not cry as frequent.”  She went on to state that even babies that did not receive Lydocaine would, from time to time, be very quiet.  (Frovarp Depo. p. 39, Z. Baer Affd. Ex.13)  Roberta Engquist, a Registered Nurse at MeritCare since 1985, indicates that Dr. Nyhus, a Family Practitioner who performs circumcisions without anesthesia (still today), does so “because he doesn’t think it makes a difference” to use anesthesia.  (Engquist Depo. p. 20, Z. Baer Affd. Ex. 14)  Florence Dreiling, a Registered Nurse at MeritCare since 1981, indicates

“Q:       Do you notice a difference in the amount of discomfort in the baby when it is done without benefit of anesthesia as opposed to those who use anesthesia? 

A:         It really varies.  There are some babies that it’s--it’s a baby’s temperament.  A lot of babies will cry just when you’re putting them on the board, you know, they’re not wrapped up, they’re laid on a diaper or blanket so it shouldn’t be cold, and--but there’s some that cry, some don’t.” 

(Dreiling Depo. p. 31, Z. Baer Affd. Ex. 15)

            None of the nurses who cared for Josiah Flatt or Anita Flatt, nor Dr. Sunita Kantak, remembers the labor, delivery or circumcision.  Anita Flatt was deprived of the opportunity to observe.  Since the reaction of babies is variable, some screaming, some not screaming, some resisting, some quiet, the jury should be allowed to observe videotapes showing four different children being circumcised with Lydocaine and through the use of different tools for cutting the foreskin.  The showing of a video will not prejudice the jury, but simply give a base line to determine damages.  To deprive the jury of this evidence would allow the Defendant to secretly perform harmful procedures on patients who would then be precluded from showing the procedure when complaining about not getting sufficient information to get “informed consent”.   The whole concept of informed consent is to “unmask” the risks, benefits or alternative treatment modalities.  In order to fully appreciate the risks, the procedure must be fully explained.

            According to the nurses who have been identified as witnesses who know Dr. Sunita Kantak’s routine about giving information on circumcision to a parent, Dr. Kantak never describes pain, just the method of controlling pain; never describes the Plastibel procedure; never describes the Mogan clamp procedure; does not describe embedded penis; severed penis; or urethra fistulas as risks.  (Mary Johnson Depo. pp. 33-34, Z. Baer Affd. Ex. 16)  Sherry Stoa, a Registered Nurse, in describing the habit of Dr. Kantak in informing parents about circumcision, indicates that Dr. Kantak distinguishes herself by going through more “thoroughly about the mutilation thing, why--if boys, why not girls, and the controversy of that.”  (Stoa Depo. p. 41, Z. Baer Affd. Ex. 17) 

            The Plaintiff would definitely agree that it would be most expeditious to have a videotape of the circumcision of Josiah Flatt.  However, neither the nursing staff, nor Dr. Kantak, can remember any portion of the labor, delivery or circumcision.  Anita Flatt was told she could not attend the circumcision.  (A. Flatt Depo. pp. 33-34, Z. Baer Affd. Ex. 18)  Perhaps a solution would be to obtain a Court Order allowing the videotaping of a circumcision by Sunita Kantak so that we have proof of the procedure and how she performs the procedure. 

            2.         VIDEO AND SURGICAL INSTRUMENTS RELEVANT TO DAMAGES

            Further relevance of the video and surgical instruments to the claims in this case are damages.  Josiah Flatt suffered pain and the permanent loss of erogenous tissue from his body.  In order to appreciate the element of pain, it is necessary for the jury to be able to touch, feel, and manipulate the instruments used by the medical doctors to summarily amputate non-diseased tissue for a non-therapeutic reason.  By the nurses’ own admissions, Lydocaine used as an analgesic is not 100% successful, even under the best of circumstances.  There is no medical doctor willing to state that babies do not feel pain as a result of the circumcision.  In order to be able to appreciate the pain, a jury should be able to look at the surgical equipment used to perform this procedure using Lydocaine that at best is a hit or miss proposition on controlling short-term pain. 

            Similarly, the 33 photos of the intact penis are relevant to the issue of what is lost if allowed to grow to full term.  Similarly, the visual animation of the foreskin provides reference for jury members as to the tissue, its function and purpose, all of which is lost as a result of routine circumcision. 

            None of the exhibits are in any way inflammatory.  The surgical instruments are not coated with blood but are in a sanitary sealed condition.  The circumstraint has no evidence of gore, but is just a molded plastic circumstraint which holds the baby spreadeagle.  The loud protestations of the Defendant suggests that the procedure is indeed barbaric and something that reasonable thinking people should be protected from.  Why?  So that the medical community can continue hiding the harm they are causing to babies?  Is it to insulate parents from the reality of what goes on behind curtains when their child is held spreadeagle and his penis cut?  Lasik patients watch a video of the surgery as part of the information given so they can make an informed decision--why not circumcision? 

            3.         MINUTES OF MEETINGS.

            Defendants also object to the inclusion of minutes of the MeritCare Pediatric Group’s development of the circumcision policy.  These minutes are relevant to the issues of informed consent, credibility and damages.  Part of the issue is the date on which a newly developed circumcision booklet was made available and prepared by the Pediatric Group.  For instance, Exhibit 18 depicts minutes of the Maternal Newborn Joint Practice Council from December 15, 1996, which identifies as participants Dr. Shoemaker and Dr. Kantak, describing that Dr. Shoemaker had been selected to participate in a national committee on the task force of circumcision, and that he was writing a new document about circumcision, and after approval, would be distributed at “prenatal classes, family birth center, and the intensive care nursery.”  The subsequent minutes of the Maternal Newborn Joint Practice Council of July 14, 1997, identify Dr. Shoemaker as being present and the discussion on circumcision brochure identifying that the American Academy of Pediatrics was revising the current statement and a new statement will be published.  The minutes suggest that the “MeritCare Brochure, written by Dr. Shoemaker, is available to parents.”  (Tr. Ex 18(a), Z. Baer Affd. Ex. 5)  Finally, on October 3, 1997, Exhibit 18(b) depicts Maternal Newborn Joint Practice Council, of which Dr. Shoemaker is present indicating that there is discussion about the use of buffered Lydocaine for circumcision procedures because it causes less discomfort than using regular Lydocaine.  The admission that buffered Lydocaine causes “less discomfort” suggests that there is and was discomfort with the use of non-buffered Lydocaine in March 1997, when Josiah Flatt was born.  This is relevant to the issue of pain control and the issue of damages resulting from the pain suffered by Josiah Flatt.  (Tr. Ex. 18(b), Z. Baer Affd. Ex. 5)

            The Defendant also objects to the introduction of the MeritCare Department of Pediatrics minutes.  (Tr. Ex. 19, 19(a) through 19(j), Z. Baer Affd. Ex. 6)  The minutes extend from April 25, 1996, through May 16, 2001.  The minutes are relevant to the issues about what the Pediatric Group knew, when they knew it, and what information they needed to disclose to parents.  The minutes also are relevant to prove issues of damages, including pain suffered by Josiah Flatt.  They are further relevant to the issue of credibility of when the MeritCare brochure was made available to the patient population on a regular basis.

            For instance, on April 21, 1996 (Tr. Ex.19, Z. Baer Affd. Ex. 6), the minutes of the Department of Pediatric meeting suggests that Dr. Miller raised concerns regarding circumcisions and the “need to develop a better handout to give patients regarding circumcisions.” 

            Exhibit 19(a) depicts minutes from May 22, 1996, showing Sunita Kantak present where Dr. Miller discusses his concern regarding parents “wanting to watch circumcisions.  It was decided that each physician will determine what he/she is comfortable with in regards to parents observing circumcisions.”  This testimony would tend to support Anita Flatt’s recollection of the statements by the nurses that she was not allowed to watch the circumcision of her son.  (Tr. Ex. 19(a), Z. Baer Affd. Ex. 6)  Exhibit 19(b) are the minutes from the June 19, 1996 meeting showing the issue of circumcision being tabled.  Sunita Kantak was present during that discussion.  (Tr. Ex. 19(b), Z. Baer Affd. Ex. 6)  Exhibit 19(c) depicts the minutes from the July 17, 1996 physician meetings at which, again, under old business, the discussion of circumcision was tabled.  (Tr. Ex. 19(c), Z. Baer Affd. Ex. 6)

            Exhibit 19(d) from August 21, 1996, identifies under new business that Dr. Miller shared his concerns with regard to circumcision preparation for parents.  “Dr. Shoemaker will work on putting together a pamphlet discussing circumcisions and the payment plan involved with this procedure.”  Minutes of the meeting from August 21, 1996, would suggest that the physicians’ own group, in the presence of Sunita Kantak, raised concerns regarding lack of preparation for parents before agreeing to circumcise their infant babies.  (Tr. Ex. 19(d), Z. Baer Affd. Ex. 6)

            Exhibit 19(e) are Department of Pediatrics minutes from September 11, 1996, at which Sunita Kantak was present.  Under old business, the minutes suggest that Dr. Shoemaker is working on completing the circumcision pamphlet which would be sent around through the Department for approval before the next meeting.  (Tr. Ex. 19(e), Z. Baer Affd. Ex. 6)

            Exhibit 19(f) are the minutes from October 16, 1996, which discuss circumcision and the request by Dr. Shoemaker for their opinions on the circumcision handout he had written for parents of newborn boys.  The minutes suggest that Dr. Shoemaker would make revisions and present it before the group again for input.  (Tr. Ex. 19(f), Z. Baer Affd. Ex. 6)

            Exhibit 19(g) reflect minutes of the physicians’ meeting of November 6, 1996, where circumcision was discussed suggesting that Dr. Shoemaker had sent his letter in to be written in lay terms for patient use.  (Tr. Ex. 19(g), Z. Baer Affd. Ex. 6)

            Exhibit 19(h) are the Pediatric Department minutes from December 1996, at which Sunita Kantak was present indicating under old business that the circumcision brochure is ready to go to print, 1500 copies will be printed and distributed.  It is written in a low reading level.  (Tr. Ex. 19(h), Z. Baer Affd. Ex. 6)

            Plaintiffs were not provided any meeting minutes of the Pediatric Department following December 18, 1996, until the next minutes dated November 15, 2000.  There is nothing in the Department minutes suggesting that the minutes of December 18, 1996 were ever approved, or that the brochure was ever published. 

            MeritCare Clinic has produced a brochure which has as an initial publication date 12-96, and a revision date 1-97.  (Kantak Depo. Ex. 2, Z. Baer Affd. Ex. 10)  There is nothing in the minutes of the Pediatrics Department suggesting a review of the revision of the circumcision pamphlet.

            Anita Flatt has testified that she did not receive literature from anyone at MeritCare about circumcision and denies ever receiving a copy of the pamphlet identified as “Should Your Child Be Circumcised?”  (A. Flatt Depo. p. 47, Z. Baer Affd. Ex. 18)  On the other hand, MeritCare nurses will testify that the common procedure used is to distribute the brochure when the pediatrician on call does rounds.  Squarely at issue is the issue of whether or not Anita Flatt obtained a copy of the brochure.  If the brochure had not been put into circulation, which we contend is a reasonable inference that could be drawn from the closeness in time from the development of the brochure to the birth of Josiah Flatt, the minutes of the meeting showing the development of the brochure is highly relevant.  The documents also come in for impeachment purposes allowing the finder of fact to determine whether or not the brochure was in fact distributed to Anita Flatt.  Nurse Sherry Stoa, who has been at MeritCare for 21 years, says as far back as she can remember, the pediatricians have handed out the circumcision booklet.  (Stoa Depo. pp. 24-27, Z. Baer Affd. Ex. 17)  The minutes of the Pediatric Group suggest otherwise

            The next minutes of the Pediatric Department meeting provided to Plaintiff was November 15, 2000, attended by Sunita Kantak where the discussion is concerning out-patient circumcisions.  The conclusion portion of the minutes indicate “a parent’s signature is required and the regular surgical consent form may be used.  Lack of consent creates a problem.”  The discussion by the Pediatrics Group indicating that “lack of consent to perform a circumcision creates a problem” allows a reasonable inference that the medical community still was rather lax about obtaining consent, let alone informed consent, from parents who desire to have the physicians surgically alter their son’s genitalia.  The final minutes of the Pediatric Department meeting are from May 16, 2001. (Tr. Ex. 19(j), Z. Baer Affd. Ex. 6).  Dr. Sunita Kantak is identified as having been absent from that meeting.  Exhibit 19(j) shows further discussion about circumcisions, and how the hospital can save money by discharging newborns and parents as soon as they are well.  The suggestion is to complete circumcisions by 10:00 a.m.

          The final series of minutes are from MeritCare Hospital Department of Pediatrics.  Beginning on January 24, 1996 (Tr. Ex. 20, Z. Baer Affd. Ex. 7), the MeritCare Hospital Department of Pediatrics discusses circumcision policy and received a report from Dr. Welle regarding Medicaid patients.  The conclusion by the hospital is that performing circumcisions on Medicaid patients results in “no financial loss to the hospital for performance of circumcisions”.  The action of the Department of Pediatrics as identified in the minutes is “due to the minimal time commitment for performance of circumcision and lack of significant financial issues, no change will be made to in-patient circumcision policy at this time.”  These minutes were signed by the Chairperson of the Department of Pediatrics, Craig T. Shoemaker, M.D.  The minutes are relevant to the extent that they show the persistence of circumcision is perpetuated by positive economic import to the medical institution, not based on medical need or best interest of the baby. 

            In April 1996, the Department of Pediatrics MeritCare Hospital met again.  (Tr. Ex. 20(a), Z. Baer Affd. Ex. 7).  The minutes state that in April 1996, there was “the need for a circumcision policy statement.”  The action taken was “the FBC Joint Practice Council will be asked to develop a statement regarding the risks and benefits of circumcision.”  The minutes do not say develop a new statement regarding risks and benefits of circumcision.  It says to develop a statement regarding risks and benefits of circumcision.  Prior to April of 1996, an inference could be drawn that there was no brochure identifying the risks and benefits of circumcision.

            The last minutes of the Department of Pediatrics addressing circumcision provided by Plaintiff was November 19, 1997.  (Tr. Ex. 20(b), Z. Baer Affd. Ex. 7)  The sole reference is “circumcision task force met in New Orleans”.  Nothing further was identified.  All of these minutes are probative to the issue of judging the credibility of the doctors and nurses in their statement that the circumcision brochure developed by the hospital was given to Anita Flatt.  Anita Flatt indicates she never received the brochure.  A reasonable inference could be drawn by the timing of the development of the brochure that it in fact was not prepared for distribution until a later date. 

            4.         HANDWRITTEN NOTES, BILLINGS, ETC.

            In addition, the Defendants are seeking to exclude a series of documents identified as Exhibit 15, 15(a) through 15(i).  (Z. Baer Affd. Ex. 4)  These are handwritten notes by Anita Flatt, post-it notes, scraps of paper or reimbursement forms, documenting conversations with hospital and medical personnel involving billing, complaints about asymmetry of the surgical procedure, and complaints about the doctor not being present during the delivery.  One of the issues in this case is whether or not Anita Flatt was given a brochure or brochures at the time of her hospitalization.  The hospital contends she was given the brochure.  Anita Flatt contends she was not.  Anita Flatt contends she saved all of the documents she received and even the notes upon which she wrote comments about conversations with the hospital administration regarding her concerns.  The evidence identified in Exhibit 15 and its subparts would tend to show that Anita Flatt is indeed a packrat and collected and saved all of the documents that she received during her stay at MeritCare Hospital.  Those documents are relevant to the issues of credibility and weight to be given to the testimony of the parties in this case.

CONCLUSION

            For all the above reasons, the Court should allow the introduction of the videos, surgical equipment, department minutes, and photos of the natural penis to allow this jury to evaluate if the circumcision procedure was truly “unmasked” before the cutting took place.

            Dated:  January 15, 2003

                                                                                    Respectfully submitted,

                                                                                    ZENAS BAER AND ASSOCIATES

                                                                                    By                                                               

                                                                                        Zenas Baer (#05460)
                                                                                        Attorney for Plaintiffs
                                                                                         331 6^th St., Box 249
                                                                                         Hawley, MN 56549
                                                                                         (218) 483-3372

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[1 back to text]    The constitutionality of this statute has been challenged in the underlying litigation.  An appeal following final judgment will be forthcoming.
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Order on Motions in Limine, pdf file.
Judge Cynthia Rothe-Seeger denies of the use of video tapes and surgical instruments in court proceedings.

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