Flatt vs. Kantak 3
Shoemaker Deposition on Informed Consent

Link to other depositions:
George Kaplan's Deposition

The case of Flatt v. Kantak continued here, page 3

DEPOSITION OF CRAIG SHOEMAKER, MD
former Head of Fargo Meritcare's neonatal unit

1 STATE OF NORTH DAKOTA                      IN DISTRICT COURT
2 COUNTY OF CASS           EAST CENTRAL JUDICIAL DISTRICT
3
4 JOSIAH FLATT, by and through natural )
5 guardians, ANITA FLATT and JAMES FLATT,)
6 and ANITA FLATT and JAMES FLATT, )
7 individually, )
8 Plaintiffs, )
9 -vs- ) No. 99-3761
10 SUNITA A. KANTAK, M.D., MERITCARE )
11 MEDICAL CENTER, )
12 Defendants. )
13 _______________________________________)
14
15
16 DEPOSITION OF
17 CRAIG SHOEMAKER, M.D.
18 February 27, 2002
19
20
21
22 Taken before JENNIFER SCHUMACHER
23 Certified Shorthand Reporter
24 State of California
25 CSR License #9763

page 2
1 APPEARANCES:
2
3 FOR THE PLAINTIFF:
4
5 ZENAS BAER & ASSOCIATES
6 Attorneys at Law
7 ZENAS BAER, Esq.
8 331 6th Street
9 Hawley, MN 56549
10
11 FOR THE DEFENDANT:
12
13 VOGEL LAW FIRM
14 Attorneys at Law
15 JANE C. VOGLEWEDE, Esq.
16 502 First Avenue North
17 Fargo, North Dakota 58107
18
19
20
21
22
23
24
25


page 3
1 INDEX OF EXAMINATIONS
2
3 EXAMINATION BY: PAGE
4
5 MR. BAER 4, 147
6
7 MS. VOGLEWEDE 146
8
9 --oOo--
10
11 INDEX OF EXHIBITS
12
13 EXHIBIT NO. DESCRIPTION PAGE
14
15 19 Neonatal Circumcision: Risks
16 and Benefits 8
17
18 20 Editorial Comment 9
19
20 --o0o--
21
22
23
24
25
page 4
1 BE IT REMEMBERED that on Wednesday, February 27,
2 2002, commencing at the hour of 12:49 p.m., at the
3 offices of UCD MEDICAL CENTER, Sacramento, California,
4 before me, JENNIFER SCHUMACHER, a Certified Shorthand
5 Reporter, empowered to administer oaths and affirmations
6 pursuant to Section 2093(b) of the Code of Civil
7 Procedure, personally appeared
8 CRAIG SHOEMAKER, M.D.,
9 A witness in the within-entitled matter, called as a
10 witness by the plaintiff, who, having been duly sworn by
11 the Certified Shorthand Reporter to tell the truth, the
12 whole truth, and nothing but the truth, testified as
13 follows:
14 --o0o--
15 EXAMINATION BY MR. BAER
16 Q. This is the time and date noted for the taking of
17 the deposition of Dr. Craig Shoemaker for all purposes
18 contemplated by the Rules of Civil Procedure.
19 Would you please identify yourself for the record
20 and give us your address.
21 A. My name is Craig Thomas Shoemaker,
22 S-h-o-e-m-a-k-e-r. Address is 4865 Dalewood,
23 D-a-l-e-w-o-o-d, Drive, El Dorado Hills, California,
24 95762.
25 Q. And in the notice to take the deposition I asked

page 5
1 that you bring certain documents, and you have presented
2 certain documents, and I've briefly reviewed them before
3 going on the record. And I just wanted to for the
4 record identify the contents of your file.
5 There's correspondence from Ms. Voglewede to you
6 dated April 26th, 2001, correspondence dated March 26th,
7 2001 from Voglewede to you, correspondence from
8 Voglewede to you dated April 18th, 2001, correspondence
9 dated December 5th, 2001 from Voglewede to you, and a
10 fax transmission from Voglewede to you dated August
11 31st, 2001 regarding an updated opinions by Cold and
12 VanHow and Dr. Wang.
13 In addition to those documents which are located
14 in the front sleeve of the three ring binder is one
15 that's bound by a metal clasp dated March 26th, 2000
16 cover letter with additional affidavits of Dr. Cold and
17 Dr. VanHow. The cover letter is from Jane Voglewede to
18 you inquiring about Dr. VanHow and Dr. Cold and their
19 status in the medical community.
20 In addition, you have a three ring binder, a
21 black three ring binder that has been set up with
22 separate divisions, and an index and table of contents.
23 Was this supplied to you by the attorneys for the
24 defendant?
25 A. It was.
6
1 Q. And it includes depositions of Dr. Kantak, Nurses
2 Burgard, Thilmong, Larson, Engquist, and then
3 depositions of Anita Flatt and James Flatt, and then
4 five other documents which include the MeritCare booklet
5 Should Your Infant Boy Be Circumcised, infant care
6 section on pages five to six, MeritCare Family Birth
7 Center Policy and Procedure on Circumcision, Dr. Kantak
8 and MeritCare answers to interrogatories, and
9 Dr. Kantak's curriculum vitae.
10 Do you know when those were supplied to you?
11 A. I don't remember the exact date.
12 Q. Going on, then, in the file you have a condensed
13 copy of Dr. Wane's deposition, and then you have another
14 fax copy of Dr. Eileen Wane's updated expert opinion
15 testimony dated February 21st, 2002, a letter dated
16 February 12th, 2002, looks like it's just a letter of
17 conveyance of Dr. Wane's deposition to you from the
18 attorneys for defendants.
19 Then you have in a pink, if I can call it that,
20 covered binder or a two hole punched with different
21 dividers what appears to be medical records of Anita and
22 Josiah Flatt of E.R.M.C. clinic.
23 Are these the sum total of the medical records
24 that you received and reviewed as a result of your
25 preparation for this case?

7
1 A. They are.
2 Q. And were these assembled and supplied to you by
3 the attorneys for the defendant?
4 A. They were.
5 Q. The next document is a letter dated January 16th,
6 2002 from Ms. Voglewede to you enclosing two
7 depositions, one of Dr. Cold and the other one of
8 Dr. VanHow. That completes the inventory of this black
9 three ring binder and other loose documents. And you
10 indicated you also had some other documents in your
11 hand, and that was the AAP March 1999 policy statement
12 on circumcision; is that correct?
13 A. That's correct.
14 Q. And the other document was a hard copy of the
15 Should Your Baby Boy Be Circumcised and the Infant Care
16 Booklet published by MeritCare?
17 A. That's correct.
18 Q. In addition, you did give me two articles, one
19 was entitled "Neonatal circumcision: Risks and
20 benefits" authored by you. It does not appear to have a
21 date, although do you know when this was published?
22 A. It was published initially in early 2001, and
23 it's updated yearly on the E Medicine textbook, which I
24 think is listed in the first paragraph.
25 Q. October 6, 2000?
8
1 A. I wrote it -- initially I think it was published
2 on January 1st when the E Medicine textbook came out.
3 Q. Now, the document identified as "Neonatal
4 circumcision: Risks and benefits" is a document that
5 you had published on the E Medicine journal?
6 A. Yes, that's correct. It's a textbook, actually.
7 Q. A textbook. Who publishes that textbook?
8 A. The company called UpToDate dot com.
9 Q. And just for the record, the last deposition
10 exhibit we had marked yesterday was deposition Exhibit
11 18 of Dr. Kaplan. I'm going to mark this Exhibit 19
12 just for reference purposes.
13 (Plaintiff's Exhibit 19 was
14 marked for identification.)
15 Q. MR. BAER: And is the E textbook, is that a peer
16 review textbook?
17 A. No. It's what's becoming more common in
18 medicine, compilation of opinions by authors. There are
19 peer review text books in that regard in the Internet as
20 well. But this is not a peer review. There are editors
21 to the textbook which review it.
22 Q. Okay. And then the last document that I will
23 mark with a sticker as Exhibit 19 --
24 MS. VOGLEWEDE: Try 20.
25 Q. MR. BAER: I'm sorry. Exhibit 20, is an
9
1 editorial comment that you handed to me just before
2 starting the deposition, and it is entitled Editorial
3 Comment with 21 references. It does not have a date.
4 Do you know when that was --
5 A. It's listed in my CV. I think it was 1999. Is
6 that in here someplace?
7 (Plaintiff's Exhibit 20 was
8 marked for identification.)
9 THE WITNESS: Are you done with this, Mr. Baer?
10 Q. MR. BAER: Yes.
11 A. Yes, 1998.
12 Q. 1998, Yearbook on Neonatal and Perinatal
13 Medicine?
14 A. Correct.
15 Q. Was it published?
16 A. Yes.
17 Q. Okay. Do you have children, Dr. Shoemaker?
18 A. I do.
19 Q. Three boys?
20 A. That's correct.
21 Q. Are they circumcised?
22 A. They are.
23 Q. Prior to coming here did you speak to Dr. Kaplan
24 about this case?
25 A. I did not.

10
1 Q. Did you talk to anybody else on the circumcision
2 task force about this case?
3 A. I did not.
4 Q. Did you talk at all with Dr. VanHow?
5 A. I did not.
6 Q. Dr. Wane?
7 A. I did not.
8 Q. Dr. Cold?
9 A. I did not.
10 Q. Did you talk to Dr. Kantak?
11 A. I did.
12 Q. When did you talk to Dr. Kantak?
13 A. I talked to Dr. Kantak, I don't recall the
14 precise date, when she was notified that she was a
15 defendant in this suit. That was before I had moved
16 from Fargo. And I subsequently talked to her one or two
17 other times about the case.
18 Q. Can you pin it down any closer than that,
19 Dr. Shoemaker --
20 A. No.
21 Q. -- than one or two other times?
22 A. She sought me out for support and comment on her
23 care, but I don't specifically remember dates.
24 Q. Okay. You said the first time would have been
25 shortly after she was notified she was being sued?
page 11
1 A. That's correct.
2 Q. So that we can put some time frame on it. I
3 don't have it right here today, but we can put some time
4 frame on it. Were the other two times at critical
5 junctures when she was being deposed or something like
6 that? Do you recall any part of the conversation with
7 Dr. Kantak?
8 A. I don't. They were all before I moved to
9 California, so they would all be before December 2000.
10 Q. And this was on three different occasions?
11 A. I believe I can recall three total occasions.
12 Q. And did she come to seek you out on an individual
13 basis at your office?
14 A. Yes.
15 Q. And your recollection of the conversation was
16 that she was seeking out support?
17 A. Yes.
18 Q. For what she did?
19 A. I think she wanted me to review the medical --
20 initially she wanted me to review the medical records to
21 see if there was anything I thought was unusual, out of
22 line, and then she -- as you mentioned, it may have been
23 around deposition time, and it was more for emotional
24 support. She had never been sued before I don't
25 believe.
12
1 Q. But you indicated that she wanted you to review
2 what, her medical care, and what, her medical practice
3 that she did?
4 A. That was my impression.
5 Q. So she would have described what she did to you?
6 A. I believe so, yes.
7 Q. On multiple occasions?
8 A. At least three.
9 Q. And she wanted to know whether or not if that was
10 done that would meet the standard of care, at least as
11 you understood the standard of care to be?
12 A. I don't remember that she ever used the word
13 standard of care. I think she said do you see anything
14 untoward in these, and she didn't use the word untoward,
15 that's my word, in the care of the child.
16 Q. But what I'm asking, Dr. Shoemaker, is that she
17 came to you and described what she did in the care of
18 this patient and asked is there anything wrong with what
19 I did or should I do more?
20 A. I believe it was generally that.
21 Q. So you have heard her side of the story at least
22 three different times on those three occasions that she
23 met with you?
24 A. I think so.
25 Q. And she described to you then all of the
13
1 disclosures that she would have made to Anita at the
2 time there was a discussion about circumcision?
3 A. No, she did not describe in detail to me what she
4 discussed.
5 Q. Okay. Well, what did she describe?
6 A. She described that she had been notified she was
7 being sued about a child -- that she had been sued for a
8 child she had circumcised in the neonewborn nursery,
9 that she had counseled as we had recommended in our
10 department meetings and wondered had she done anything
11 wrong. I guess that's a satisfactory statement.
12 Q. You mentioned a concept there that I hadn't heard
13 before, that in your departmental meetings you would
14 instruct department members as to what they are supposed
15 to describe for informed consent?
16 A. I would not instruct. We would discuss and
17 arrive at a consensus about what we thought was an
18 appropriate standard of care.
19 Q. As best you can right now, Dr. Shoemaker, why
20 don't you just tell me what that instruction would be?
21 A. Well, beginning in the early '90s when I became
22 involved, as you are aware, in circumcision issues, I
23 brought it to the department as chair that having
24 reviewed the literature that was currently available at
25 MeritCare we probably needed a more extensive
14
1 explanation of circumcision so we could properly counsel
2 parents. And we discussed what that might entail, how
3 we could best accomplish it, what our individual
4 opinions were as Board Certified pediatricians and
5 proceeded from there.
6 Q. But what -- tell me what was the consensus that
7 you as a collective body decided on would be the
8 information necessary to meet whatever your collective
9 consensus was to meet that information standard.
10 A. We decided that we should develop a written
11 document that would describe the historical perspective,
12 the procedure, risks and benefits, complications, social
13 issues, and financial obligations. It was subsequently
14 during meetings there was some correction -- or that's a
15 wrong word. There was alteration of the document
16 because of some statements made in the financial
17 responsibilities, and so about a year after we published
18 the first one for use we revised a paragraph in relation
19 to financial obligations. And that was the written
20 literature that we thought we should have, and then it
21 was also -- and it was documented in our department
22 notes that we should have a verbal conversation with the
23 parents, and we should document that we had discussed
24 analgesia and anesthesia regarding circumcision with
25 each parent.
15
1 Q. So am I to conclude from your description just
2 now, Doctor, that what has been marked as Exhibit 2,
3 which is that Should Your Infant Boy Be Circumcised
4 pamphlet that you referenced earlier, was that the
5 written document that you came up with as a result of
6 your discussion amongst your group members?
7 A. That is correct.
8 Q. And if you look at the publication date on the
9 backside, which is on the front, it says it was
10 initially published in 1996 and revised in January of
11 1997?
12 A. That's correct.
13 Q. Do you see that? What is the date in 1996, is it
14 December?
15 A. 12/96.
16 Q. And as far as you know are those the dates that
17 the document would have been first developed and then
18 revised?
19 A. The dates -- the document would have been
20 developed prior to that time. It was -- the department
21 decided it was satisfactory to be published by 12/96 and
22 distributed after that time.
23 Q. And the distribution then would have begun in
24 December of 1996?
25 A. That's correct.
16
1 Q. When in December of 1996?
2 A. I don't know exactly the date.
3 Q. And then there was a revision of it in January of
4 1996?
5 A. Right.
6 Q. Or 1997? Sorry.
7 A. That's correct.
8 Q. Prior to that implementation of -- strike that.
9 Let's get back to the discussion you had. I'm
10 still trying to understand from you, Dr. Shoemaker, what
11 it is that you concluded in your department
12 consultations would be necessary to give parents in
13 order to inform them adequately enough to meet the
14 informed consent standard.
15 A. There is no informed consent standard, actually.
16 Q. Okay. What did you conclude? Obviously you put
17 together a booklet, right?
18 A. That's correct.
19 Q. Is there anything above and beyond the booklet
20 that you as a department concluded would be necessary to
21 give parents to meet the medical obligation of giving
22 information so that the parent could make an informed
23 decision about that procedure?
24 A. Not to give the parent anything but to discuss
25 with the parent what was in the book and allow them the
17
1 opportunity to answer -- ask questions and have them
2 answered in an unbiased fashion regarding the issue of
3 infant male circumcision.
4 Q. Is it your position then that Exhibit No. 2, the
5 pamphlet Should Your Infant Boy Be Circumcised is an
6 adequate discussion of the risks and benefits to meet
7 that informed consent standard?
8 A. Not in and of itself.
9 Q. You also used in your discussion just now a
10 concept of department notes. What are department notes?
11 A. They are minutes from department meetings.
12 Q. Who keeps those?
13 A. They are kept by the secretary of the department
14 of pediatrics.
15 Q. Who is that?
16 A. I don't know who it is right now.
17 Q. Who was it when you were there?
18 A. It was at that time -- I forgot her name. It
19 could have been -- I don't remember whether it was Janet
20 Dedrick who is currently the secretary of neonatology or
21 an older lady who is now retired, and I don't remember
22 her name. They would interchangeably sit in on
23 pediatric and OB/GYN meetings to take notes as
24 recorders. Marsha Gross. Sorry.
25 Q. That's okay. And the minutes from these
18
1 department meetings, were they kept at the department?
2 A. They were kept in my office.
3 Q. And where did you deliver those minutes after you
4 left the clinic?
5 A. I left them in my office.
6 Q. So who took your position?
7 A. Dr. Ron Miller.
8 Q. Could you give me some sense of how voluminous
9 these minutes would be say -- you used the term in the
10 early 1990's you became actively involved in the
11 circumcision issues and you started doing review. If
12 you looked at the minutes from 1990 to the current when
13 you left, December of 2000, how voluminous would they
14 be?
15 A. Not terribly large. The items relating to
16 circumcision would be relatively small I would think.
17 They would be single paragraph as things were discussed
18 in either new business, old business, standard agenda
19 for Robert Schuler orders of meetings.
20 Q. How often would you hold these meetings?
21 A. Once a month.
22 Q. So there would be a maximum of 12 meetings for
23 each of those ten years?
24 A. Yes, that's correct.
25 MR. BAER: I just want to make on the record a
19
1 request for those minutes.
2 MS. VOGLEWEDE: Your request will be considered.
3 MR. BAER: And I will follow that up.
4 Q. To your knowledge, Dr. Shoemaker, was there --
5 how many members of your pediatric group practiced in
6 the children's hospital at MeritCare?
7 A. All of them.
8 Q. How many were there? What is the total number?
9 A. At my last recollection there was I think 21.
10 Q. Do you know what their mix was, males, females?
11 A. I think there was three females -- four females,
12 17 males.
13 Q. Were there any of the 17 males that did refuse to
14 do circumcisions?
15 A. Not to my knowledge. There were people who did
16 not do circumcision because that was not part of their
17 practice. I'm not aware of anyone who refused to do
18 circumcisions.
19 Q. Dr. Kantak indicated that there was a system in
20 place where on a regular basis the physicians would take
21 on call at the hospital on a weekly basis and that the
22 person who was on call or doing rounds would do all the
23 circumcisions. Were there any of the pediatricians who
24 did not fit into that rotation so they would be put into
25 that position of doing circumcisions?
20
1 A. No. But I will correct, if I may, my previous
2 statement. I believe Dr. Litia Kreshnuska preferred not
3 to do circumcisions and when she was on call someone
4 else did that. That just popped into my head.
5 Q. Do you know if any of the 17 male members, were
6 any of them intact, that is, have an uncircumcised penis
7 if you know?
8 A. I'm trying to remember if I've seen any of my
9 colleagues nude. The only -- no, none of the department
10 of -- I do not know about any of the department of
11 pediatrics members. I do know about the C.E.O. of
12 MeritCare.
13 Q. And what do you know about the C.E.O. Roger --
14 A. He's intact. I'm sorry.
15 Q. How did that come up?
16 MS. VOGLEWEDE: I'm going to instruct him not to
17 answer anything further about that.
18 Q. MR. BAER: Well, did you ever meet with Roger
19 Gilbertson to talk to him about this case?
20 A. No.
21 Q. Did you talk to him about the Fishback case?
22 A. No.
23 Q. Did you talk to him about your sitting on the AAP
24 committee studying circumcision?
25 A. I did.
21
1 Q. And is that the context in which it arose?
2 A. I don't remember.
3 Q. What is your title, Dr. Shoemaker? Are you a
4 pediatrician, what title do you have professionally?
5 A. I am a --
6 MS. VOGLEWEDE: His title or his specialty?
7 Q. MR. BAER: Let's go title first.
8 A. My title at the University of California, Davis
9 is clinical professor of pediatrics and medical director
10 of the special care nurseries.
11 Q. Okay. And what is -- and broadly speaking are
12 you a pediatrician?
13 A. I am a pediatrician.
14 Q. And then are there subspecialties under
15 pediatrics that you have pursued?
16 A. Yes.
17 Q. And what are those subspecialties?
18 A. Neonatal perinatal medicine.
19 Q. How would you define a pediatrician? What words
20 would you describe to a lay person what a pediatrician
21 does?
22 A. A pediatrician is an individual who cares for
23 children, and the definition of a child varies as to
24 age, and who does medical care, well child care,
25 including safety counseling, parent advice, counseling
22
1 of parents and children from infancy through
2 adolescence.
3 Q. And your subspecialties, then, of pediatrics
4 would be further confined from that broad category, I
5 take it?
6 A. Yes, that's correct.
7 Q. And what of those subspecialties, what would you
8 then do for a patient?
9 A. My subspecialty training in board certification
10 is in the care of well and sick newborn infants from
11 premature infants through early infancy and counseling
12 of parents regarding those illnesses, as well as
13 evaluation of in utero problems and counseling of
14 parents regarding high risk pregnancies.
15 Q. Is that known as perinatology?
16 A. Perinatology is an obstetric subspecialty that
17 deals with the medical management and counsel of mothers
18 in relation to high risk pregnancies.
19 Q. Once a baby is born as a pediatrician that baby
20 is capable of being a patient, right?
21 A. That's correct.
22 Q. And as a pediatrician you would consider a
23 newborn, a full term newborn child to be -- if he or she
24 is under your care to be your patient?
25 A. That's correct.
23
1 Q. And in order to do any procedure on a patient you
2 first must obtain consent; is that correct?
3 A. That is correct.
4 Q. And the infant cannot give consent; is that
5 correct?
6 A. That is correct.
7 Q. So you have to obtain proxy consent, typically
8 it's a parent?
9 A. A surrogate consent, that's correct.
10 Q. And in order to do that, to get the surrogate
11 consent, you would need to provide enough information to
12 the surrogate to adequately inform that individual about
13 the risks and benefits of a procedure before going
14 forward with the procedure?
15 A. I believe so, yes.
16 Q. And you'd have to give unbiased information?
17 A. That's correct.
18 Q. In understandable language?
19 A. That's correct.
20 Q. And it is the physician who has that obligation,
21 that cannot be delegated to a nurse or an LPN?
22 A. That is my personal opinion. That is not always
23 how it's done.
24 Q. I want to show you what has been marked as
25 Exhibit 12. I'll represent to you that that is an
24
1 exhibit that was discussed yesterday with Dr. Kaplan,
2 and it is the AAP Policy Statement on Informed Consent,
3 Parental Permission, and Asset in Pediatric Practice
4 number RE9510. I believe it's from 1995.
5 A. You're correct, 1995.
6 Q. Are you familiar with that statement?
7 A. I am.
8 Q. And would you agree that the AAP's statement is a
9 general statement as to the standard of care of --
10 required to obtain informed consent before doing
11 surgical operations or other interventions on minors?
12 A. The Academy of Pediatrics does not establish
13 standard of care. The Academy of Pediatrics writes
14 policy statements, statements of clinical guidelines.
15 So this is a suggestion of policy, but it doesn't
16 necessarily represent the standard of care.
17 Q. What represents the standard of care,
18 Dr. Shoemaker?
19 A. The standard of care is represented by individual
20 communities in relation to what they feel must be
21 performed in relation to providing an adequate amount of
22 unbiased information.
23 Q. And the individual community in Fargo may be much
24 different than the individual community from here at
25 U.C. Davis?
25
1 A. That's very true.
2 Q. Or in San Diego?
3 A. That's true.
4 Q. So if somebody was not familiar with the
5 individual community up in Fargo, North Dakota they may
6 not be able to give helpful information on the standard
7 of care in Fargo?
8 MS. VOGLEWEDE: I'll object on the grounds that
9 that asks for a legal determination, not a medical one.
10 You can answer.
11 THE WITNESS: I think in relation to commonly
12 performed procedures standard of care could be met by a
13 person describing a procedure but without being in the
14 community for -- since that's something that is almost
15 never done, someone comes into a community and does a
16 procedure without being involved in the community, it
17 would be very difficult to answer. It's kind of
18 speculative.
19 Q. MR. BAER: Dr. Kaplan has never practiced at
20 Fargo, North Dakota?
21 A. That is correct, to my knowledge.
22 Q. Well, he told us yesterday under oath that he
23 never practiced in Fargo, North Dakota. By your
24 statement just now Dr. Kaplan would not have any
25 firsthand knowledge of what the standard of care would
26
1 be for performing a circumcision in Fargo, North Dakota,
2 would he?
3 MS. VOGLEWEDE: Same objection that it goes to a
4 legal issue not a medical one as to what the standard of
5 care is.
6 THE WITNESS: I think in general as a pediatric
7 urologic surgeon he would have a general concept of what
8 should be mentioned in standard of care, but he would
9 not be familiar with what was done normally in Fargo,
10 North Dakota.
11 Q. MR. BAER: And in your mind, Dr. Shoemaker, the
12 standard of care is what is done in Fargo, North Dakota
13 by the community of people who practice there?
14 A. In regards to the fact that they have access as
15 do we all to national information about what policies,
16 what organizations they belong to to develop that
17 procedure, I would say that was true.
18 Q. And one of those things that you tap into is the
19 AAP statement on informed consent; isn't that right?
20 A. That would be correct.
21 Q. I take it, Dr. Shoemaker, that you do not believe
22 or agree that there is an objective standard of care,
23 it's subjective dependent upon the community within
24 which you practice?
25 MS. VOGLEWEDE: I'll object on grounds that it
27
1 goes to a legal question, not a medical one. Secondly,
2 it mischaracterizes his previous testimony.
3 THE WITNESS: Is your question is there an
4 absolute standard of care?
5 Q. MR. BAER: No. If you didn't understand the
6 question, I'll rephrase it.
7 A. Please rephrase it.
8 Q. Okay. I take it, Dr. Shoemaker, that you do not
9 believe there is an objective standard of care but that
10 the standard of care is subjective dependent upon which
11 community you practice?
12 A. There are certain parts of standard of care which
13 would be objective and recognized in general. There are
14 other parts which would be subjective.
15 Q. Okay. Tell me which ones would be objective and
16 which ones subjective.
17 A. Subjective in my opinion would particularly be
18 whether or not the procedure was paid for. If a parent
19 was required to pay prior to the procedure being done,
20 the insurance company was not going to pay for that. A
21 subjective standard would be that one of religious
22 belief, symbolic procedure. I think those are
23 subjective. Cosmetic as well would be subjective.
24 Q. Have you read the informed consent statement by
25 the AAP?
28
1 A. I have sometime ago.
2 Q. Do you agree with that statement generally?
3 A. I think the statement gives good guidelines for
4 discussion with parents regarding how a discussion
5 should go in relation to obtaining informed consent or
6 informed permission.
7 Q. Would you agree with the statement in the policy
8 statement that suggests informed consent has limited
9 direct application in pediatrics?
10 A. I don't know where that statement is in context.
11 Do you know where it is?
12 Q. Yeah, I do. I thought I did. Page 2 of Exhibit
13 12, the first full paragraph.
14 A. Would you restate the question then, please?
15 Q. Do you agree with the statement that informed
16 consent has limited direct application in pediatrics?
17 A. In context to the remainder of the statements,
18 the remainder of that paragraph that say that only
19 patients who have appropriate decisional capacity to
20 provide informed consent, that is correct.
21 Q. So if you have a child who cannot give consent
22 because of their immaturity, the doctrine of informed
23 consent really doesn't apply to your patient, does it?
24 A. It does apply indirectly because parents --
25 Q. But only to the proxy?
29
1 MS. VOGLEWEDE: Let him finish.
2 THE WITNESS: Because the parents have been
3 recognized legally as being able to provide informed
4 consent, or as this document says informed permission,
5 for elective procedures for their children.
6 Q. MR. BAER: Would you agree with the concept that
7 informed consent assumes that the person who is
8 consenting is giving that consent?
9 A. Generally, yes.
10 Q. And there is a distinction to be made about an
11 informed consent of a patient capable of giving that
12 consent and a proxy consent where the patient is not
13 able to give that consent?
14 A. That is correct.
15 Q. Even in the situation where you have a proxy
16 consent, however, your patient is the infant?
17 A. Generally pediatricians consider parents to be
18 part of the maternal infant diade. So mother is part of
19 their patient responsibility as well. But the patient
20 with whom you are treating generally is the child, yes.
21 Q. Would you also agree with the observation by the
22 AAP policy statement identified in Exhibit 12 that there
23 was a time where there was a concept that doctor knows
24 best and whatever the doctor thinks should be done was
25 done without giving adequate information to patients to
30
1 make those decisions?
2 A. Over the past several hundred to thousand years
3 that has been the feeling in several cultures, yes.
4 Q. Including the American culture?
5 A. That is correct.
6 Q. And the 1995 statement by the AAP suggested that
7 that is outdated thinking, we now have to think of it as
8 being a more partnership and that the patient had a
9 right to refuse recommended treatments suggested by the
10 physician?
11 A. As you commented before, in relation to that
12 statement that would directly say if the patient has the
13 appropriate decisional capacity, yes. If the patient
14 does not have appropriate decisional capacity, they
15 cannot be expected to comment on informed consent.
16 Q. Exactly. But if the patient does not have
17 sufficient capacity, then you have to go through the
18 legal mechanism to determine who can give substitute
19 capacity?
20 A. And legally the parents are able to give that.
21 Q. You know that?
22 A. I do know that.
23 Q. Okay. You would also agree that the right to
24 choose treatment or no treatment is for the patient to
25 decide?
31
1 A. If a patient has the ability to make that
2 decision.
3 Q. And of course, an infant doesn't have that
4 ability, right?
5 A. They do not.
6 Q. And so you look to a parent to obtain that
7 permission?
8 A. Yes.
9 Q. And is it not true that you would not be able to
10 do a procedure on your patient, that infant, unless you
11 concluded it was in the best interests of that child to
12 do the procedure?
13 A. Or if it was a life saving procedure.
14 Q. Right, life saving or in the best interests?
15 A. Yes.
16 Q. If it was life saving, you wouldn't even perhaps
17 need the parent's consent?
18 A. That is correct.
19 Q. And would you also agree that as a medical doctor
20 treating an infant you have a duty to respect the
21 autonomy of that infant?
22 A. To the point where the infant can understand
23 autonomy. I mean there's a concept of self. Children
24 really don't have a concept of themselves as beings
25 until sometime between age two and three, so their
32
1 ability to have a concept, it doesn't exist.
2 Q. From the child's standpoint. But from a human
3 standpoint a baby is born, that's a separate living,
4 breathing, thinking, albeit rudimentary being, isn't it?
5 A. To a certain extent, yes.
6 Q. That child is endowed with all the rights and
7 privileges of a human being, right?
8 A. Most people would agree with that.
9 Q. And as a medical doctor treating an infant like
10 that you have a duty to respect that person, right?
11 A. That's correct.
12 Q. Looking under the provision on informed consent
13 under the broad heading of Ethics and Informed Consent,
14 would you agree with the elements of informed consent,
15 basically four elements with the first one being the
16 most broad having a number of subcategories, the first
17 element of informed consent is the provision of
18 information to the patient and explanation and in
19 understandable language of, A, the nature of the ailment
20 or condition, B, the proposed diagnostic steps,
21 treatment, success, failure rates, C, the existence of
22 risks, D, the potential benefits, and E, the risks of
23 recommended alternatives?
24 A. In relation to the remainder of the paragraph
25 under item number 3 where it says "Assessment of the
33
1 capacity of the patient or surrogate to make the
2 necessary decisions," I would agree with that.
3 Q. I'm getting to that, but I just wanted to know on
4 item number one, you would agree that those are elements
5 of the first element of informed consent is the
6 provision of information to patient and explanation in
7 understandable language of those different aspects?
8 A. That's correct.
9 Q. And then the second broad category is assessment
10 of the patient's understanding, and as it relates to an
11 infant boy who has just been born, you wouldn't have
12 much understanding by that patient, right?
13 A. I would agree with that.
14 Q. And similarly under number three you have to
15 assess the capacity of the patient or surrogate to
16 understand, right?
17 A. That's correct.
18 Q. And then four, assurance that the patient has the
19 choice to refuse without coercion?
20 A. Or the surrogate, yes.
21 Q. Now, if we apply that standard of informed
22 consent with those elements under the provision number
23 one, what would you describe the baby boy's condition to
24 be?
25 A. Which baby boy?
34
1 Q. The baby boy who was just born that the parents
2 want to circumcise, what would you describe the
3 condition to be?
4 A. You're asking me to speculate on a patient?
5 Q. Yep.
6 A. With a healthy term male child who is
7 physiologically stable?
8 Q. Yes.
9 A. I then, therefore, described him.
10 Q. Yep.
11 A. Do you want further explanation?
12 Q. What is the ailment or condition that he would be
13 treating?
14 A. I just said there's a healthy male child who is
15 in stable physiologic condition.
16 Q. So you wouldn't be surgically intervening to
17 treat anything?
18 A. I think in relation to certain lesions, certain
19 duplications of digits, certain things that were asked
20 for cosmetic procedure to be removed, there might be an
21 indication in a healthy child to do a surgical
22 procedure, yes.
23 Q. Let me just back up to take out of this equation
24 all of those extra digits, skin tags, and those other
25 issues. Let's just say there are none of the
35
1 abnormalities or genetic problems with a child, the only
2 thing is he's got a foreskin.
3 What would you describe to a parent to describe
4 the nature of the ailment or condition that the patient
5 is suffering from?
6 A. I would say that the child is normal.
7 Q. And then how would you describe the proposed
8 diagnostic steps, treatment and the success or failure
9 of those?
10 A. I would describe if -- we are discussing
11 circumcision, one would assume.
12 Q. Yes.
13 A. If one was to describe circumcision, there are,
14 as the Academy of Pediatrics notes in their 1997
15 statement, potential medical benefits that are not
16 essential to the child's current well-being but that may
17 help in the child's long term health that might be a
18 reason to consider removing some of the foreskin.
19 Q. Okay. You said some of the foreskin.
20 A. Uh-huh, yes, I did say some of the foreskin.
21 Q. And why do you say some of the foreskin?
22 A. Because it is generally felt that the foreskin
23 which anatomically extends quite a way along the shaft
24 of the penis should not be entirely removed.
25 Q. Are there any studies that have looked at the
36
1 amount of foreskin that is removed that you are aware
2 of?
3 A. There are at least a couple.
4 Q. Can you refer me to those?
5 A. Not off the top of my head. They are in the
6 voluminous work that we reviewed for the Academy
7 statement.
8 Q. Now, the AAP statement talks about proxy consent
9 and problems with the consent by proxy, and I just want
10 to know whether you agree with the statement that the --
11 as a medical doctor having an infant as a patient that
12 you have a legal and ethical duty to your child patient
13 to render competent medical care based on what the
14 patient needs, not what someone else expresses?
15 A. That is --
16 Q. Do you agree with that statement?
17 A. That is quoted from the paper. I would generally
18 agree with that.
19 Q. And so in order to do a circumcision as a medical
20 doctor you conclude that the patient needs the
21 circumcision?
22 A. I do not conclude that in any case ever.
23 Q. But isn't it your legal and ethical duty to the
24 child patient to render competent medical care based on
25 what the patient needs?
37
1 A. And the patient's needs are described by the
2 parents after they have been adequately counseled
3 regarding the procedure.
4 Q. Not what someone else expresses, are you saying
5 in this case patient is mom or dad?
6 A. The patient as a surrogate decider is under the
7 concept of reasonable, it is reasonable to assume that
8 the parents will make a reasonable decision for their
9 child. That is well established.
10 Q. Why do you need a law that bans female genital
11 mutilation then?
12 A. I think that's irrelevant. They are not even the
13 same procedure.
14 Q. Why do you need a law -- if the patient is going
15 to make a decision always in the best interests of the
16 child, why would you need a law banning that?
17 A. There are religious elements in third world
18 countries that believe female genital mutilation is a
19 procedure. In the developed countries of the world we
20 do not feel that that procedure is appropriate, and so a
21 law and a statement by the Academy of Pediatrics has
22 been developed to say that we do not feel as a group
23 that this is an appropriate procedure. It is
24 mutilation. It is not a medical therapy.
25 Q. Is Europe a developed country?
38
1 A. I would say it is.
2 Q. Is Australia a developed country?
3 A. Yes.
4 Q. Is Canada a developed country?
5 A. Yes.
6 Q. Is Britain a developed country?
7 A. Yes.
8 Q. Europe doesn't practice routine infant
9 circumcision, does it?
10 A. The United States doesn't practice routine infant
11 circumcision to my knowledge either.
12 Q. It doesn't?
13 A. The world routine means to do on everyone. The
14 American Academy of Pediatrics has never recommended
15 routine circumcision.
16 Q. What is the percentage of people or baby boys
17 that are circumcised?
18 A. In this country?
19 Q. Yes.
20 A. Depends on which part of the country you're in.
21 But I think the average in this country probably right
22 now is about 70 percent.
23 Q. How about Fargo Moorehead?
24 A. It's more like 95 percent.
25 Q. And those are just rough estimates; is that
39
1 right?
2 A. Yes, they are rough because I haven't done a
3 study on it.
4 Q. Well, there are no studies out there that are
5 accurate and reliable, are there?
6 A. There have been survey studies, sample studies
7 done by public health in California or whatever that
8 asked the circumcision rate. There are studies that
9 have done surveys about men knowing their own
10 circumcision status.
11 Q. In your AAP statement don't you conclude that the
12 studies are insufficient to conclude what the rate is in
13 America?
14 A. Oh, absolutely, it changes every day.
15 Q. Getting back to the decision on the proxy
16 consent, if I understand your position correctly,
17 Dr. Shoemaker, you would say that as a medical doctor
18 carrying out your ethical duty to the patient and that
19 ethical duty is that you do only what that patient needs
20 that you can determine what that patient needs by the
21 whim of a parent?
22 MS. VOGLEWEDE: I'll object to that as
23 mischaracterization of his testimony.
24 THE WITNESS: It is not the whim of the parent.
25 It is an informed decision that is made after counseling
40
1 the parent in an unbiased manner regarding the potential
2 medical benefits and the risks of the procedure of
3 circumcision.
4 Q. MR. BAER: Well, let's put another factor into
5 this equation. What if you have mom and dad sitting
6 there, they listen to all of your descriptions about the
7 risks and benefits of circumcision, they say I don't
8 care what you say, Doctor, I want my child to look like
9 me, do it. Do you then continue and do the
10 circumcision?
11 A. I'm not sure what your question actually is. If
12 I have consented the parents?
13 Q. If you have given information to the parents, the
14 parents say I don't care what you say, Doctor, I'm not
15 listening to you, just do it, do you do the
16 circumcision?
17 A. To answer your question, I never do a
18 circumcision without informing the parents regarding the
19 risks and benefits. To directly answer what you said to
20 me, if a parent said I don't want to listen to you, just
21 do the circumcision. I would say, I'm sorry, I can't do
22 that until I've adequately informed you. Does that
23 answer your question?
24 Q. So then adequately -- you give them the rest of
25 the information, they say I don't care, just do it, do
41
1 you do it?
2 A. Then I have informed them and I would do the
3 procedure, yes.
4 Q. Would you agree that under that circumstance,
5 that scenario, that it would be a whim of the parent?
6 A. I think they would have heard the explanation of
7 informed consent and made a decision. On what their
8 decision was based is not for me to decide.
9 Q. What is the purpose of informed consent,
10 Dr. Shoemaker?
11 A. It is to provide adequate, unbiased information
12 about the risks and benefits of the procedure.
13 Q. But it's not in a vacuum, is it? That adequate,
14 unbiased information is supposed to be absorbed by an
15 individual to take and weigh the risks and benefits and
16 whether or not the procedure should be done, right?
17 A. I believe that's correct, yes.
18 Q. Would you agree that the pediatrician's duty and
19 responsibility is to the patient not the parent?
20 A. Yes, in most circumstances.
21 Q. Why do you qualify that?
22 A. I think there are situations where parental
23 interest and infants interest can come into conflict,
24 but they are mostly life threatening instances.
25 Q. Where the parent might not consent to a procedure
42
1 and you think it has to be for saving the child?
2 A. Or on the contrary where a parent wishes a
3 procedure done which would not be in the best interests
4 of a child.
5 Q. Give me an example of that.
6 A. A baby who has a lethal chromosomal abnormality
7 and parents want to have extensive surgical procedures
8 done. There are multiple kinds of problems.
9 Q. Do you do the surgeries then?
10 A. I think there is a fairly good ethical standard
11 made in this country that a physician if they feel
12 morally or ethically opposed to doing a procedure does
13 not have to do the procedure.
14 Q. The subsection of the policy statement, Exhibit
15 12, on parental permission and shared responsibility
16 talks about the situation where you have a parent making
17 a decision for an infant child who can't make the
18 decision on their own, that you still need all of the
19 elements of informed consent that had previously been
20 described. Do you see that?
21 A. Yes.
22 Q. And that would be those four elements that we
23 talked about with sub parts, right?
24 A. Correct.
25 Q. And that usually after given all that information
43
1 a parent will make the decision on the best interests of
2 the child standard, and you would agree that that is the
3 standard that you need to follow?
4 A. Yes, in regards to the entire statement that
5 mentions a pluralistic society and acceptable child
6 rearing and welfare and religious beliefs, et cetera.
7 Q. So there are certain circumstances where parents
8 try to make decisions that in your opinion are not in
9 the best interests of the child, and that's why you need
10 child neglect laws and assault laws, FGM, those kinds of
11 things?
12 A. I answered that previous, yes, in the same way.
13 Q. How do you as a physician determine what is in
14 the best interests of a child? Instead of doing this in
15 the abstract, how would -- I guess we have to do it in
16 the abstract to some extent because you weren't there.
17 How would a physician determine what is in the
18 best interests of Josiah Flatt as he is sitting in that
19 bassinet, intact, a healthy baby boy?
20 A. By their knowledge of pediatrics, by their
21 knowledge of medical literature, by their knowledge
22 of -- by their training in pediatrics, that's how one
23 would determine what was in the best interests of the
24 child.
25 Q. Okay. So how can -- if a parent wanted to cut
44
1 off part of the earlobe, would a doctor do that?
2 A. I think not.
3 Q. Why not?
4 A. It wouldn't be in the best interests of the
5 child. What if the parent wanted to pierce the ear?
6 Q. Do you pierce ears, Doctor?
7 A. I don't.
8 Q. Would you as a medical doctor pierce an ear?
9 A. I would.
10 Q. If a patient requested?
11 A. It's quite culturally common in some parts of our
12 society.
13 Q. I'm asking you, would you pierce an ear of a
14 patient if mom says, Doctor, I want this ear pierced?
15 A. I would prefer that I would do it after I did an
16 informed consent rather than have it be done in a dime
17 store.
18 Q. Have you ever done that for a patient?
19 A. I never have. Most the parents -- my experience
20 is after informed consent most the parents don't have me
21 do it, or all parents that I've talked to haven't had me
22 do it.
23 Q. So we're talking about how a doctor would
24 determine what is in the best interests of that healthy
25 baby boy, and you said by the knowledge you have,
45
1 experience and training, the medical literature. And
2 would there be any basis upon which the doctor could say
3 it's in this child's best interest to be circumcised?
4 A. I believe so.
5 Q. Even if it was a healthy baby boy?
6 A. Absolutely.
7 Q. Based on the 1999 Academy statement?
8 A. No, based on my personal medical experience, my
9 review of the medical literature, the 1999 American
10 Academy statement, 1995 American Academy of Pediatrics,
11 my training and my personal experience having worked in
12 intercity emergency rooms, V.A. hospitals, migrant
13 health clinics, and in pediatrics I think circumcision
14 is an issue that is relative not only to an infant but
15 to an entire life. And I think that's why it's
16 important to counsel parents regarding that.
17 Q. Are you circumcised?
18 A. I am.
19 Q. Do you think it's proper for a medical doctor to
20 circumcise a child just because a parent wants that
21 child to look like their dad?
22 A. A male child, if the parents have been
23 appropriately counseled, I believe that is an adequate,
24 an appropriate societal or personal decision.
25 Q. But by your description right now I would
46
1 characterize you as being procircumcision.
2 A. I believe that I would want my family members
3 circumcised. But I have no personal feeling about what
4 you should do with your family.
5 Q. But if somebody came in and they were your
6 patient, they said what would you recommend, Doctor, you
7 would recommend circumcision?
8 A. That's an easy question for me to answer because
9 I have told parents for over 20 years I don't give my
10 personal opinion. I will give you the medical facts,
11 and then you must make the decision.
12 Q. And the medical facts were as you described them
13 in Exhibit 2 as best you could?
14 A. In a language that most parents can understand.
15 One must understand I wrote the statement, at least
16 initially before it was revised by the department, we
17 had to lower the quality of the language down somewhat.
18 Q. Okay. Under the statement, keeping on with the
19 informed consent statement of the AAP, there is a
20 subheading talking about practical applications. It
21 gives several examples of when you would get informed
22 permission, and it mentions immunizations, invasive
23 diagnostic testing, long term anticonvulsant therapy.
24 Do you see that?
25 A. I'm looking. I'm trying to find it. Yes.
47
1 Q. It doesn't mention circumcision in there, does
2 it?
3 A. It does not.
4 Q. Unless you -- I am done with this one. I'll just
5 go to a different exhibit now, Doctor.
6 Showing you what's been marked as Kaplan Exhibit
7 8 and Kantak Exhibit A, that is an AMA standard I
8 believe identified as E-8.08 Informed Consent. I
9 believe the date is 1981. Are you familiar with that
10 document?
11 A. Yes, I am.
12 Q. And does that provide a standard for informed
13 consent at least as the AMA described it?
14 A. It doesn't. It, again, applies a guideline for
15 informed consent, but the standard of care is not
16 written anywhere.
17 Q. That is the --
18 A. This is the AMA's opinion.
19 Q. What you're qualifying is that the standard of
20 care is based on the locality?
21 A. Right, correct.
22 Q. And in Exhibit 8 do you see the language that
23 talks about informed consent is a basic social policy?
24 It's about halfway through.
25 A. I'm just looking for it exactly. Yes.
48
1 Q. And then it says for which there are exceptions,
2 certain exceptions are permitted. Do you see that?
3 A. Yes.
4 Q. And the first exception is where you have an
5 unconscious patient or a patient incapable of giving
6 consent and harm is imminent?
7 A. That's correct.
8 Q. Now, the second exception doesn't really apply to
9 the circumcision issue, does it? You would never have
10 the second exception apply where disclosure of the risks
11 would cause psychological problems to the patient?
12 A. Perhaps to the parents in that regard.
13 Q. But the parents aren't being circumcised, are
14 they?
15 A. No, but they are the surrogates that are
16 responsible, and I have indeed known parents that have
17 developed psychological distress when hearing the risks
18 and the benefits of the circumcision for their infant
19 male child.
20 Q. Read the second one.
21 A. When risk-disclosure poses such a serious
22 psychological threat of detriment to the patient as to
23 the medically -- as to be -- there's a cross out -- it
24 must be medically -- contraindicated.
25 Q. You've never seen that where it's been so
49
1 stressful that it's medically contraindicated, have you?
2 A. I think probably twice where mother has become so
3 distressed I wouldn't even consider the circumcision.
4 Q. But the first exception requires that there be a
5 patient who is incapable of giving consent or
6 unconscious and harm is imminent. Would you agree with
7 that?
8 A. That's correct.
9 Q. And in the situation with circumcision the
10 patient cannot give consent, true?
11 A. That's correct.
12 Q. Harm is not imminent, though, if you just left
13 that foreskin alone, is it?
14 A. It depends on your definition of imminent.
15 Q. Well, how do you define imminent?
16 A. In relation to an infant it is two years, the
17 first decade of life, second decade of life.
18 Pediatricians, as I said before, must consider a
19 lifetime when they counsel about a procedure. And an
20 immunization, certainly an immunization for hepatitis in
21 Fargo Moorehead, there's no imminent danger of
22 developing hepatitis B in Fargo Moorehead for an infant.
23 Q. What is imminent, that's what I'm asking?
24 A. I think it's a relative statement.
25 Q. As it's used in the AMA statement, Exhibit No. 8,
50
1 you don't know what imminent means?
2 A. I think the AMA which deals primarily with adult
3 patients, this would refer to in close temporal
4 proximity to the procedure.
5 Q. Immediate?
6 A. Hours, days.
7 Q. Do you agree with the informed consent statement
8 of the AMA identified as Exhibit 8?
9 A. I don't.
10 Q. Why not?
11 A. Because, again, as I mentioned previously, the
12 AMA tends to deal primarily with the adult patients, and
13 the AMA and American Academy of Pediatrics have
14 frequently disagreed on statements.
15 Q. Okay. Showing you Exhibit 13 I'll present to you
16 that is the AMA statement on neonatal circumcision
17 identified as H-60.945. Do you see that?
18 A. Yes, I do.
19 Q. And that was issued, I believe, shortly after the
20 AAP statement was released in March of 1999.
21 A. It gives a date of 1999 in the statement, but I
22 don't see a date on there, but one would assume, though,
23 it would have to be after 1999.
24 Q. Doesn't it actually just quote your findings from
25 the AAP statement?
51
1 A. Yes, it does.
2 Q. So it would have to have been just after 1999?
3 A. I would assume that.
4 Q. And what I'm wondering about, Dr. Shoemaker, is
5 that the opening sentence of this policy statement talks
6 about encouraging training programs for pediatricians,
7 obstetrics, family practitioners on the use of local
8 pain control?
9 A. That's correct.
10 Q. This is 1999?
11 A. That's correct.
12 Q. Are you saying that pediatricians, obstetrics and
13 family practitioners weren't aware of pain control for
14 circumcisions before 1999?
15 A. Many weren't in relation to pediatrics.
16 Q. So they were performing circumcisions without any
17 anesthesia at all?
18 A. That's correct.
19 Q. In fact, there are still some practitioners in
20 MeritCare who don't use anesthesia, aren't there?
21 A. I do not know that.
22 Q. Did you have it as a policy of your group that
23 you all used anesthesia?
24 A. Over the 17 years I was at MeritCare during the
25 time that the research that you may be alluding to was
52
1 being done, more was being done, the policy changed from
2 one of not using anesthesia to using some anesthesia to
3 the recommendation of the department as I remember it to
4 that anesthesia, it went right along with the Academy
5 statement, that if circumcision was to be done, all male
6 infants should be provided anesthetic analgesia.
7 Q. When did that policy change to the best of your
8 recollection, Dr. Shoemaker?
9 A. '96 or '97.
10 Q. Prior to that children, baby boys, were not
11 anesthetized on a routine basis?
12 A. Commonly.
13 Q. They were not?
14 A. Yes.
15 Q. Now, I want to touch a little bit on the concept
16 of the standard of care, and I know you've talked
17 earlier about it being a locality, and then
18 Ms. Voglewede says it's a legal concept. Do you
19 understand what is meant when I say standard of care?
20 A. Not entirely.
21 Q. Well, what do you understand standard of care to
22 be?
23 A. My opinion of what standard of care is based on
24 what is accepted medical practice in this country in
25 relation to safety, necessity, potential medical benefit
53
1 and community interest and beliefs that establishes the
2 standard of care.
3 Q. You used the concept of community and national.
4 Are you saying that there is a national standard or is
5 it a community standard?
6 A. I think previously we discussed the fact that
7 there are some -- this is some degree of objective
8 things that would be agreed on in the entire country,
9 and there are other things that are subjective. So I
10 think that it will be a mixture of that.
11 Q. Would you agree, Dr. Shoemaker, that medical
12 standard of care, whatever it might be, could be
13 modified by legislation?
14 A. Absolutely.
15 Q. For instance, the FGM, the ban on female genital
16 mutilation may have had the affect of modifying standard
17 of care, right?
18 A. May have.
19 Q. If anyone was performing clitoridectomies or
20 those procedures?
21 A. That's exactly my reservation. If anybody was,
22 that probably changed it. I don't know if the procedure
23 was being performed by anyone in this country.
24 Q. Okay. Why did the AAP feel compelled to put out
25 a statement then disavowing female genital mutilation?
54
1 A. I think I answered that earlier in that there are
2 a number of -- not a number, a small number of countries
3 where female genital mutilation was practiced, and as
4 people from those areas of the world came to this
5 country there were non medical practitioners as I
6 reviewed that literature who were doing female -- or
7 mutilating female genitalia on the basis of a religious
8 belief that was somewhat societal based -- as I
9 understood it, that required legislation or a statement
10 that says that, no, this is not something -- we don't
11 believe religion goes this far.
12 Q. Those same cultures that you referred to that
13 practiced female genital mutilation also circumcise
14 their boys in a ritual sort of setting, do they not?
15 A. Most of those cultures are Abrahamic religions,
16 and I would expect them to. I don't know of any
17 specific associated literature that states that. That's
18 an assumption I would make.
19 Q. And the methods use to mutilate the boys are
20 sometimes just as brutal as the girls?
21 A. Well, the word mutilate is entirely yours. The
22 surgical procedure that is done is not even anatomically
23 similar. The same tissue is not even involved.
24 Embryologically the tissues come from entirely different
25 places.
55
1 Q. What about in a Type I female genital mutilation?
2 A. Are you referring to the similar --
3 Q. The soony [sunna] where all you do is remove the clitoral
4 hood, you remove the female foreskin.
5 A. The clitoral hood involves the clitoris itself
6 and is a -- and generally the Type I involving suturing
7 of the labia over that specific area and is really not
8 relevant to male circumcision in my opinion.
9 Q. Exhibit 9 is the female genital mutilation policy
10 statement of the AAP and it gives a breakdown of the
11 different types of female genital mutilation, Type I
12 through IV. If you want to refer to Type I, it just
13 says that the procedures are often very benign, and it's
14 very hard to even recognize whether or not there has
15 been a Type I mutilation in situations where there's
16 simply the removal of the clitoral hood. Do you see
17 that?
18 A. Yes.
19 Q. Does that refresh your recollection as to what
20 Type I FGM is?
21 A. Maybe. It also says in the same statement when
22 this procedure is performed in infant or young girls a
23 portion of or all of the clitoris and surrounding
24 tissues may be removed. So we're talking about a fairly
25 broad spectrum, even in relation to what may occur.
56
1 Q. But the type of tissue that's removed in the most
2 benign of the FGM procedures, the soony procedure, is
3 just the removal of the clitoral hood.
4 A. In exactly the situation that you mentioned, if
5 the portion of the clitoral hood was removed without
6 injury at all to the clitoris, which would be
7 extraordinarily difficult in a female infant, that would
8 be a similar anatomic procedure to a male circumcision.
9 Q. But they do these in infants, they do them when
10 they are grown, don't they?
11 A. That's my -- I think 3 is where they start.
12 Q. 3 to 11 to 13?
13 A. Yeah.
14 Q. So they would be more pronounced at 3 or 11 or 13
15 to be able to remove that clitoral hood with greater
16 ease?
17 A. In my knowledge of female adolescent infants and
18 adolescent anatomy that would be correct. It's also
19 pertinent, I think, that those young children and
20 adolescents usually don't get informed consent for that
21 procedure.
22 Q. Nor do the boys in that society, do they?
23 A. I don't believe so.
24 Q. So the way the culture treats the girls is bad,
25 but the way they treat the boys, we'll live with that?
57
1 MS. VOGLEWEDE: I'm going to object to lack of
2 foundation and lack of relevance.
3 Q. MR. BAER: Go ahead. Answer it if you can,
4 Doctor.
5 MS. VOGLEWEDE: If you know.
6 THE WITNESS: In a Biblical perspective I would
7 say Abrahamic religions believe exactly that.
8 Q. MR. BAER: On page 3 of Exhibit 9 on the bottom
9 paragraph it talks about some of the physical burdens on
10 FGM, and what I want to refer to you -- and we can take
11 a break as soon as I'm done with this comment.
12 What I want to refer you to, Dr. Shoemaker, is
13 the statement that talks about the procedures violate
14 the principal of nonmaleficence, commitment to avoid
15 doing harm. I want you to focus on the principal of
16 nonmaleficence, commitment to avoid doing harm.
17 Do you agree that that is a principal that is
18 held by the medical community as one of its bedrocks?
19 A. Yes, I do.
20 Q. And it applies not only in FGM but in overarching
21 all of your treatment decisions?
22 A. Yes.
23 (Discussion off the record.)
24 Q. MR. BAER: To your knowledge was there a time
25 when circumcision was performed to prevent masturbation
58
1 in young boys?
2 A. Not only -- to my exact certainty.
3 Q. How long did that thread hold true in the medical
4 community?
5 MS. VOGLEWEDE: I'm going to object on grounds of
6 lack of relevance to this case. Go ahead.
7 Q. MR. BAER: Go ahead.
8 A. It was during late Victorian era, early into the
9 last century, perhaps later into the last century, and
10 in some cases even up into the middle of the century.
11 Q. In America?
12 A. In America.
13 Q. And are you aware of any circumcisions or
14 clitoridectomies being performed on women to stop
15 masturbation?
16 A. I am not personally aware of it, but I have read
17 that it did occur.
18 Q. Do you know when the last one was performed in
19 North Dakota?
20 A. I do not.
21 Q. You indicated that you would agree with the
22 concept that standard of care can be modified by
23 legislation, right?
24 A. Yes.
25 Q. To your knowledge is there a law in the state of
59
1 North Dakota that deals with informed consent?
2 MS. VOGLEWEDE: I'm going to object. This is
3 beyond the scope of his testimony as a fact witness and
4 a medical expert in this case and deals with legal
5 issues, not medical ones.
6 THE WITNESS: Do I answer or not?
7 MS. VOGLEWEDE: Answer, if you know.
8 THE WITNESS: I'm not aware of.
9 Q. MR. BAER: I want to show you what's been marked
10 as Exhibit 11 Kantak and Kaplan West's North Dakota Code
11 23-12-13. I believe it's dated 1995.
12 Have you ever seen that before?
13 A. I have not.
14 Q. I'll give you a moment to review it if you would
15 like to, Doctor.
16 A. All right. Thank you.
17 Q. And I just want to identify for you the way I
18 understand it is set up. It's a statute that talks
19 about authority for medical doctors to do procedures on
20 incapacitated or minor children, incapacitated
21 individuals or minor children, right?
22 A. That's my impression.
23 Q. And the first section talks about the order of
24 priority which you follow in order to obtain proxy
25 consent?
60
1 MS. VOGLEWEDE: I'm going to object to any
2 questions which asks for his interpretation of a North
3 Dakota law that he's just now seeing. Well, I mean you
4 already have, but I'm going to object to any of these
5 questions that asks for some type of legal
6 interpretation. It's inappropriate.
7 THE WITNESS: And I answer now or not?
8 MR. BAER: Yes. Go ahead.
9 MS. VOGLEWEDE: What was the question? Was there
10 a question?
11 MR. BAER: Yeah, there was a question.
12 THE WITNESS: Would you repeat it now, please.
13 Q. MR. BAER: Sure. The first subsection talks
14 about informed consent and then it gives a hierarchy of
15 the individuals who are authorized to give consent in
16 the case of an incapacitated adult or a minor. Do you
17 see that?
18 A. Yeah, I do.
19 Q. The second section talks about a physician's duty
20 that if they are going to be performing a procedure on
21 an incapacitated person or a minor they must first in
22 good faith try to locate one of the authorized
23 individuals, correct?
24 A. Correct.
25 Q. And then the third section talks about before any
61
1 person authorized to provide informed consent pursuant
2 to this section exercises that authority the person
3 determining -- I'm sorry -- the person must first
4 determine in good faith that the patient if not
5 incapacitated would consent to the proposed health care.
6 Do you see that?
7 A. Yep, and the subsequent line says if such
8 determination cannot be made, the decision to consent to
9 the proposed health care may be made only after
10 determining that the proposed health care is in the
11 patient's best interests.
12 Q. All right. Then let's talk about that as it
13 relates to circumcision. So you have -- before you
14 give -- do a procedure you as a medical doctor, the
15 state law would be obligated first to determine in good
16 faith that the patient if not incapacitated would
17 consent to the proposed procedure?
18 MS. VOGLEWEDE: I'm going to have a standing
19 objection to these questions asking for a legal
20 interpretation.
21 Q. MR. BAER: Isn't that what it says?
22 A. In regards to the patient being able to make such
23 a decision, make such an interpretation.
24 Q. But Doctor, you would never have that if you even
25 had this apply because the patient is incapacitated.
62
1 A. Also, the third item that you just mentioned, it
2 says the appointed guardian or the custodian of the
3 parent.
4 Q. The patient is not the custodian, is it, the
5 patient is laying there.
6 A. The patient is incapacitated if they are a child
7 intellectually.
8 Q. That's precisely what it is. It says that before
9 consent can be given you must determine in good faith
10 that the patient if not incapacitated would consent to
11 the health care. How would you determine if a baby boy
12 would consent to being circumcised?
13 A. One would reasonably assume that most children,
14 and I'm going to say most and not all, would follow what
15 their parents believed. Certainly we're both aware that
16 not all children follow what their parents believe, but
17 most children do.
18 Q. So you would say that whatever the parent wanted
19 would be a determination that the patient would have
20 wanted the same thing?
21 A. In relation to the discussion that we continue to
22 have regarding circumcision I believe that to be true,
23 yes.
24 Q. And you also believe it to be true that even if
25 that doesn't apply to the situation it would be in the
63
1 best interests of the child to have that child
2 circumcised anyway?
3 A. Once the parents had consented after having been
4 informed in a nonbiased -- same statement I've made
5 previously.
6 Q. And if the statute conflicts with MeritCare
7 policy you would agree that the statute controls?
8 MS. VOGLEWEDE: Object on grounds that it calls
9 for a legal conclusion, legal interpretation.
10 THE WITNESS: One -- because it's legal doesn't
11 always make it right and vice versa. So I would say in
12 general statutory law is meant for the benefit of
13 society. It is sometimes wrong.
14 Q. MR. BAER: Showing you what has been marked as
15 Exhibit 1, and that is the AAP statement. You have seen
16 that statement before, Dr. Shoemaker?
17 A. I certainly have.
18 Q. You sat on the committee?
19 A. I did.
20 Q. The committee was composed of yourself,
21 Dr. Kaplan, Dr. Lannon, Dr. Bailey, Dr. Fleischman,
22 Dr. Swanson and Dr. Coustan, right?
23 A. That's correct.
24 Q. Do you know whether any of the members, say the
25 male members of the committee were intact?
64
1 A. I do not know that, no. I assume intact relates
2 to circumcision.
3 Q. Do you understand that term, that they have not
4 been circumcised?
5 A. Yes. That's the way you are using it, yes.
6 Q. Yes. Do you know how you were chosen to sit on
7 the task force?
8 A. Appointed by the chairman of the American Academy
9 of Pediatrics committee on the fetus and newborn.
10 Q. Do you know why you were chosen, what criteria
11 was used to determine who should sit on the committee?
12 A. I don't specifically know exactly why the
13 chairman chose me. I had had some experience in writing
14 the sections in guidelines for perinatal care regarding
15 care of the uncircumcised penis and care of the penis,
16 and when the committee, the task force was being formed,
17 I had experience in review of the literature that was
18 moderately extensive in relation to the Fishback versus
19 North Dakota case.
20 Q. To your knowledge were there any members of the
21 task force who did not perform circumcisions?
22 A. Had never or did not routinely?
23 Q. Did not routinely do it?
24 A. Dr. Lannon did not routinely do circumcisions,
25 Dr. -- what is the anesthesiologist's name? Anderson --
65
1 no, Dr. Bailey did not perform circumcisions,
2 Dr. Coustan was ill a lot, and he communicated with
3 written literature, and I don't know whether he did.
4 And I don't know whether Dr. Fleischman did because I
5 never spoke to him about it.
6 Q. How about Kaplan?
7 A. Kaplan did.
8 Q. And you?
9 A. I do.
10 Q. Swanson?
11 A. Yes.
12 Q. What is the state of the literature,
13 Dr. Shoemaker, describing what it is like to be an adult
14 with a foreskin versus being an adult without a
15 foreskin?
16 A. It's widely varied, as you're probably aware.
17 There is evidence that circumcised male infants are more
18 prone to some problems and less prone to other problems.
19 There is evidence that -- there's a lot of not very
20 scientific literature that discusses psychological
21 issues, sensation issues, hygiene issues.
22 Q. Maybe I asked a bad question. But what I'm
23 trying to get at, Dr. Shoemaker, is that you know folks
24 in our generation born in the '50s would by and large be
25 circumcised, so how does our generation get an objective
66
1 view of what it's like to have a foreskin?
2 A. I think since we are fairly much of a global
3 village now we have the experience of a lot of other
4 countries, we have opinions, and we have discussion
5 among colleagues who are not in the United States, if
6 that's an answer to your question.
7 Q. And the view of the literature that you did
8 suggested that more circumcisions take place in America
9 for non religious reasons than any other civilized
10 country in the world?
11 A. That is correct.
12 Q. And that was one of the factors that drew your
13 attention to why does this continue here in America,
14 right?
15 A. That's correct.
16 Q. Because you looked at the Academy of Pediatrics
17 in Australia, whatever their name is, and they
18 recommended against it, right?
19 A. They recommended against routine circumcision, as
20 did the Canadian Pediatrics Society, as did -- I forgot
21 the exact name
22 Q. The U.K.?
23 A. Yeah.
24 Q. And those are civilized societies, aren't they?
25 A. Oh, yes.
67
1 Q. And you even in the task force report reference
2 those and say, you know, these medical societies have
3 published statements that do not recommend routine
4 circumcision of male newborns, right?
5 A. That's correct.
6 Q. So what you were trying to do in this committee
7 is to study why it persists in America because Europe is
8 civilized, Australia is civilized, Canada is civilized,
9 why are we so more pronounced in the rates in
10 circumcision than other developed countries?
11 A. I don't think the task force was formed for that
12 reason to ask why we were different. I think the task
13 force was formed -- this is my opinion -- as a task
14 force member to determine if there was scientific
15 evidence to justify routine circumcision.
16 Q. And you do observe at least in the opening
17 paragraphs of the statement that until the last half
18 century there has been limited scientific evidence to
19 support or repudiate the routine practice of
20 circumcision?
21 A. Yes. I wrote that sentence.
22 Q. You believe there was a practice of routine
23 circumcision?
24 A. Absolutely.
25 Q. And there still is?
68
1 A. In some parts of the country.
2 Q. One of those parts would be Fargo, North Dakota?
3 A. Absolutely not.
4 Q. It's not routine?
5 A. Absolutely not.
6 Q. Where is it routine?
7 A. I know some cities in the southeast in the rural
8 south where some practitioners don't obtain informed
9 consent.
10 Q. Are you saying establishing routine from an
11 absolute number, or are you saying it's not routine if
12 you give informed consent?
13 A. I'm saying it's not routine if you give informed
14 consent.
15 Q. Okay.
16 A. And that's what the statement says.
17 Q. Where does it say that?
18 A. It says in the case of circumcision in which
19 there are potential benefits and risks yet the procedure
20 is not essential to child's well-being, parents should
21 decide or should determine what is in the best interests
22 of the child to make an informed consent. Parents of
23 all male infants -- all male infants should be given
24 accurate and unbiased information and be provided the
25 opportunity to discuss this decision.
69
1 Q. The question was whether or not -- maybe I
2 misunderstood your statement, that the statement, the
3 AAP policy statement, Exhibit 1, says that routine
4 circumcision means circumcision done without informed
5 consent?
6 A. That is the dictionary definition. The
7 dictionary definition of routine is something that's
8 done without discussing it.
9 Q. All right. If that's the dictionary definition,
10 without discussion, routine is without discussion?
11 A. Done routinely over and over again without
12 thought.
13 Q. So if something is done 95 percent of the time
14 the same way that would not be considered routine?
15 A. Again, I think we're getting into a semantic
16 discussion here about what the word routine means, which
17 is a big, I think, difficulty with the statement and the
18 statements all over the country, in the other parts of
19 the world. No one recommends routine circumcision. The
20 American Academy of Pediatrics has never recommended a
21 routine circumcision.
22 Q. Getting back to the question I was trying to ask
23 before, how can a group of task force members make a
24 determination of what is lost by having a foreskin
25 amputated by way of sexual pleasure, fulfillment of the
70
1 human being, being a whole person, how can we as
2 circumcised individuals make that determination?
3 A. I don't think we can make that for individuals.
4 We can do statistical analyses, we can evaluate
5 scientific data, we can look at studies as Masters and
6 Johnson did about appropriate perception and light touch
7 during coitus that say there isn't any difference.
8 That's scientific data. Knowing whether a human being
9 has been emotionally traumatized when they realize that
10 their foreskin is gone is a decision that an
11 individual -- I mean that's a psychological issue that
12 is only individual. It is not based on populations.
13 Q. Not only did the early medical literature
14 describe the circumcision as being a cure for
15 masturbation, it was attributed to curing a whole host
16 of other maladies, wasn't it?
17 A. It was.
18 Q. Club foot?
19 A. I don't remember specifically club foot. I
20 remember tuberculosis.
21 Q. Scoliosis?
22 A. A lot of things that were scientifically invalid.
23 Q. Was that at a time where there was this concept,
24 there was a nerve base concept of disease?
25 A. You know, I don't know what the concepts were in
71
1 1900 or 1880. I have no idea.
2 Q. Have you looked at the literature to determine
3 what the rate of circumcision was before the
4 medicalization of childbirth?
5 MS. VOGLEWEDE: Object on grounds of lack of
6 relevance.
7 THE WITNESS: I have not. I don't specifically
8 recall any literature, but -- I don't specifically
9 recall any literature.
10 Q. MR. BAER: I notice that the AAP statement didn't
11 go into a lot of history of the history of circumcision?
12 A. No, I wrote that, and they took it all out.
13 Q. Who took it out?
14 A. The committee decided by consensus it wasn't
15 necessary.
16 Q. So you were also in consent with that?
17 A. No, but --
18 Q. So it wasn't consensus?
19 A. A consensus is not a unanimity. It's not 100
20 percent of the people. A consensus is a consensus.
21 Q. And from review of -- the statement basically
22 says that you reviewed the English language literature
23 from 1960 to present?
24 A. That's what the committee based most of its stuff
25 on. We reviewed several German articles. We talked to

72
1 the German Pediatric Society, French and Chinese
2 literature, but we mainly reviewed --
3 Q. It doesn't say you reviewed French.
4 A. The committee did not, the process of the
5 committee was a step-by-step process where each member
6 brought information to the committee, and then the
7 committee got rid of some of it.
8 Q. But the statement is based on English language
9 literature from 1960 to present?
10 A. There is no referenced article in there that is
11 not an English language reference.
12 Q. And you would not expect there to be a lot of
13 literature on the topic of routine circumcision in a
14 country where you didn't practice it, would you?
15 A. I wouldn't expect it, no.
16 Q. Now, if you'd turn to Exhibit 1 the subsection on
17 sexual practice, sensation, and circumcision status.
18 A. Yes.
19 Q. That seems to describe what we talked a little
20 bit about earlier, and you referenced the Masters and
21 Johnson survey about the sensitivity of a penis that has
22 not been circumcised versus a circumcised penis.
23 A. It references that, and yes, I did reference.
24 You asked two questions there.
25 Q. The whole section on sexual practice, sensation,
73
1 and circumcision status is three sentences long, isn't
2 it?
3 A. That's quite correct.
4 Q. The only study talking about the sensitivity of a
5 circumcised versus non circumcised is a 1966 Masters and
6 Johnson study, right?
7 A. That's correct.
8 Q. Does your statement describe how the penis loses
9 sensation as a result of being circumcised?
10 A. There is no good scientific evidence in relation
11 to the literature that we reviewed on the task force
12 that the penis loses sensation. There is certainly
13 neurologic tissue that is taken, but to say that the
14 sensation is lost, certainly there are surveys that
15 imply that sensation is different but not lost. So I
16 would disagree with your question in that regard.
17 Q. Well, does the statement, the information
18 statement describe how the penis loses sensation?
19 A. I think I just answered that.
20 MS. VOGLEWEDE: He just answered that question.
21 Q. MR. BAER: Is it yes or no? Does it describe how
22 the penis loses sensation?
23 A. There is no statement there that says that the
24 penis loses sensation.
25 Q. Okay. Thank you. And the reason is because you
74
1 don't think there's medical literature to support that?
2 A. I'm not personally stating that that was the
3 consensus opinion of the committee task force.
4 Q. Does it mention at all the loss of Meissner's
5 corpuscles?
6 A. It was reviewed. It does not mention it.
7 Q. Does it mention the loss of erogenous nerves from
8 the foreskin?
9 A. It does not. I think I mentioned that a couple
10 of statements ago.
11 Q. Does it mention the loss of lubrication?
12 A. It does not.
13 Q. Does it mention that the loss of lubrication
14 leads to drier sex?
15 A. It does not.
16 Q. Does it in any way describe the benefits of the
17 mucosal membranes in sexual activity?
18 A. It does not, nor does it describe some of the
19 problems that might be associated with some of those
20 same immunologic functions.
21 Q. The foreskin is designed by nature to protect the
22 penis, does it not?
23 A. I am not God.
24 Q. You don't know what it's designed to do?
25 A. I don't know that anyone knows what the foreskin
75
1 is designed to do. It is a piece of anatomical tissue
2 to protect the glans penis. It has nervous endings, it
3 has immunologic function and squamous epithelium and
4 cortonized epithelium on it. What it was designed to
5 do, I don't know. It is there.
6 Q. On anatomically whole baby boys it is there,
7 right?
8 A. That is correct.
9 Q. Doesn't the foreskin in infancy protect the glans
10 penis from feces, urine, those sort of things?
11 A. Actually, there's some literature that would
12 indicate that if feces gets under the foreskin that
13 fimbriated E coli are actually attracted and held
14 against the glans penis and meatus and may contribute to
15 urinary tract infections. So the evidence is -- the
16 scientific literature is on both sides of that issue.
17 Q. We'll get into the UTI discussion in a moment,
18 Dr. Shoemaker, but bear with me for a moment. Isn't it
19 true that the foreskin that is removed during the
20 circumcision procedure is adherent to the glans penis in
21 most instances?
22 A. Exactly what I was going to say, in most
23 instances is at least partially adhered.
24 Q. And it is adhered by a membrane that sometimes
25 doesn't totally separate from the foreskin and the
76
1 glands until the child may be even up into the eight,
2 nine, ten years old?
3 A. Actually, it's not a membrane, it's squamous
4 epithelium that breaks down in pockets and usually has
5 occurred by age three, but in less than five percent of
6 kids it doesn't occur until early adolescence, so your
7 statement was generally correct.
8 Q. What is squamous epithelium?
9 A. It's epidermal cells, skin cells. A membrane is
10 more a fibrous tissue.
11 Q. But it is cell tissue?
12 A. Absolutely.
13 Q. Living tissue?
14 A. Yes.
15 Q. Blood vessels? Is it enervated?
16 A. No, the squamous epithelium between the foreskin
17 and the glans penis doesn't have any direct enervation.
18 The tissue immediately adjacent to it would be.
19 Q. You can't remove the squamous epithelium without
20 causing some trauma to skin cells?
21 A. You have to disrupt the squamous epithelium to
22 free up the other parts of the foreskin, yes.
23 Q. But by doing that you injure, shall we say, the
24 foreskin. You've got a frown on your face, Doctor.
25 A. I'm trying to think whether one injures the
77
1 foreskin, one disrupts the squamous epithelium. But I
2 wouldn't say one injures the foreskin. If one injured
3 the foreskin, to take your analogy, could you use that
4 skin to, as has been done in medical literature, to use
5 as a transplant, and one couldn't do that if the skin
6 was injured. Are you following me there?
7 Q. No, I'm not.
8 A. Sorry. It has been done.
9 MS. VOGLEWEDE: Zenas, is this a good place for a
10 break? We've been going for two hours.
11 MR. BAER: Sure.
12 (Break.)
13 Q. MR. BAER: Back on the record. Before we broke,
14 Doctor, we were talking about the injury that was caused
15 to the foreskin or the glans penis when you break that
16 squamous epithelium, and you indicated that, no, there
17 was no injury because you could use that skin as a
18 transplant. Did I understand you correctly?
19 A. Yeah, I thought about the question for a while,
20 and to explain further, if you were to merely -- which
21 is a procedure called a dorsal slit, where the tissue is
22 crushed and that squamous epithelium is sliced, the
23 foreskin remains intact but still open, and it just
24 stays there as foreskin with a little bigger opening.
25 That's a procedure that's done in some European
78
1 countries.
2 And so to say that the foreskin is injured, I
3 don't know that I would agree with that. The squamous
4 epithelium is disrupted between the glans penis and the
5 foreskin, but the foreskin itself I don't think is
6 injured.
7 Q. Well, would you agree with Dr. Kaplan in his
8 article Complications of Circumcision, that is the
9 August 1993 edition and cited in the work that you
10 developed in the AAP statement, that talks about the
11 phenomenon of premature retraction of the foreskin
12 causing repeated injuries to the foreskin and also the
13 glans?
14 A. Absolutely. If the tissue -- if the foreskin is
15 disrupted -- I'm using the word disrupted a couple
16 different times. If the foreskin is stretched and torn,
17 then it's going to cause scar tissue, but it's merely
18 separated from the penis, it's not injured in and of
19 itself. The tissue itself has to be torn or cut or
20 something.
21 Q. So you think there's a distinction to be drawn of
22 the practice that Dr. Kaplan criticized --
23 A. Oh, absolutely.
24 Q. -- of retraction --
25 MS. VOGLEWEDE: Wait until he finishes.
79
1 Q. MR. BAER: -- retraction versus the separation by
2 a mosquito forceps?
3 A. Yes, absolutely.
4 Q. In one case you do have injury and the other case
5 you don't have injury, is that your position?
6 A. To the foreskin?
7 Q. Yes.
8 A. Yes.
9 Q. Would you agree that the foreskin is like a
10 transition zone from internal organ to external?
11 A. I'm not sure that I would agree with that. It
12 certainly covers the glans penis, which when it is
13 removed, when the foreskin is removed, the glans penis
14 becomes exposed to outside stimuli and it becomes -- the
15 skin of the glans penis becomes thicker. But to say
16 that you were exteriorizing an internal organ, I don't
17 think I would go that far.
18 Q. Have you read literature that equates the
19 foreskin to tissue like the eyelids or the lips or the
20 anus where it's a transition between -- the mucosal
21 membranes are apparent in the lips and the eyes and the
22 anus, are they not?
23 A. I have read that literature. I do not agree with
24 it.
25 Q. Why not?
80
1 A. I don't agree with it.
2 Q. You don't think there's mucosal membranes in the
3 foreskin?
4 A. There are mucosal membranes after the squamous
5 epithelium breaks down. Until then the glans penis is
6 continuous with the internal surface of the foreskin.
7 The eyelid is not continuous with the eye at any time,
8 so I think it's a different analogy.
9 Q. Okay. Are you familiar with the various types of
10 circumcision clamps, the Gomco clamp, the Plastibell,
11 and the Mogen clamp?
12 A. Yes.
13 Q. I want to say the Davis clamp. Do you use all
14 three?
15 A. No. I use Gomco clamps.
16 Q. Why?
17 A. I like the appearance afterwards. The Plastibell
18 I was exposed to in the military. I found it very
19 unaesthetic. I found that mothers had difficulty
20 dealing with the tissue as it essentially dried up and
21 fell off, and the Mogen clamp is a device which I think
22 predisposes people to go too fast on the procedure and
23 doesn't give it as good a cosmetic result.
24 Q. The AAP statement talks about the methods of
25 circumcision. I just want to spend a little bit of time
81
1 on the discussion that is contained in that statement.
2 And it talks about common elements of any circumcision,
3 and there's -- it's like six different common elements.
4 The first one is -- the goal is to eliminate a
5 certain -- you first have to estimate the amount of skin
6 to be removed, right?
7 A. Correct.
8 Q. The second is the dilation of the preputial
9 orifice; is that right?
10 A. Yes.
11 Q. And you do that by use of a mosquito forceps?
12 A. It's done in various ways. One can do that, one
13 can free up the tissue by disrupting the squamous
14 epithelium that we were talking about before and then
15 clamp.
16 Q. How would you disrupt it?
17 A. I disrupt it with a blunt probe that I sweep
18 between the foreskin and the glans penis.
19 Q. You push it into the opening of the foreskin and
20 then you sweep this blunt probe to tear the squamous
21 epithelium?
22 A. Yes.
23 Q. And is the preputial -- am I saying that right?
24 A. You can say it that way. That is the hole in the
25 opening of the foreskin.
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1 MS. VOGLEWEDE: You need to wait until he's
2 finished before you start, and you need to do likewise.
3 Q. MR. BAER: The dilation of the preputial orifice
4 means that you have to make it larger, right?
5 A. That's correct.
6 Q. And the statement says that you have to visualize
7 the glans to see if it's normal. Do you see that in the
8 statement?
9 A. Yes.
10 Q. Why would you want to see if the glans is normal?
11 A. If there's a penile opening of the urethra in a
12 different spot than where it's supposed to open on the
13 end of the glans penis, generally you want to leave the
14 foreskin there because it can be used in subsequent
15 repair.
16 Q. So the first step is to dilate, you stretch out
17 the opening of the foreskin?
18 A. In that description, yes.
19 Q. And the next step is bluntly freeing the foreskin
20 from the glans penis?
21 A. Yes.
22 Q. That's what you described as being the use of the
23 a blunt instrument to tear the squamous epithelium?
24 A. Yes.
25 Q. What is the instrument called that you use?
83
1 A. A blunt probe.
2 Q. That's all that it's called?
3 A. I don't know that it has a specific other name.
4 Q. And then the next step is the placement of the
5 device on the penis, right?
6 A. Yes, with the qualification that, in parenthesis,
7 at times a dorsal slit is necessary to do so.
8 Q. And a dorsal slit is a situation where you take a
9 clamp that locks and just clamp it on the foreskin and
10 leave it for a period of time and then cut it; is that
11 right?
12 A. That is correct.
13 Q. How long do you leave the clamp on before you
14 cut?
15 A. Seconds personally.
16 Q. And then you put the device on the glans penis,
17 tighten the clamp, wait until hemostasis is achieved,
18 right?
19 A. Well, it's a little simplified in my opinion in
20 that, yes, those steps are all involved, but when the
21 bell is inserted, it's inserted only to the level of the
22 foreskin that you want to remove, and you have to
23 establish that before you pull the clamp tight or you
24 get a result which you may not want to get. And -- what
25 else was I going to add? And then the clamp is
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1 tightened.
2 Q. How do you determine how much you want to take?
3 A. You estimate the size of the glans and you can
4 generally do that by palpation, by feeling the glans
5 penis, and then take what's generally recommended in
6 most pediatric training program, and what I personally
7 teach is to take only down to about half, to two-thirds
8 from the tip of the glans penis.
9 Q. And you personally teach how to do circumcisions,
10 don't you?
11 A. I do.
12 Q. And then the final step is the amputation of the
13 foreskin, which is a common element that we're talking
14 about, about how the circumcisions are done?
15 A. That's correct.
16 Q. And amputation is performed by using a knife?
17 A. A scalpel.
18 Q. To cut the foreskin?
19 A. Yes.
20 Q. What do you do with the foreskin?
21 A. It's disregarded.
22 Q. Is it ever sold in the secondary market?
23 A. Not to my knowledge.
24 Q. Are you aware of literature to talk about
25 foreskins being used to grow artificial skin for
85
1 purposes of burn victims?
2 A. I've heard about those. I've never read them. I
3 don't know where I've heard about them.
4 Q. It's a company here in California that does it.
5 A. It may be some literature that was provided to me
6 by somebody here in California. I've heard about it,
7 but I have not read it.
8 Q. Are you involved in the disposal of the tissue?
9 A. No.
10 Q. Who does that?
11 A. It's sent -- it's generally placed on the sterile
12 tray and sent to central supply where it's disposed of.
13 Q. Do you know how it's disposed?
14 A. I do not.
15 Q. Would you agree that as Dr. Kaplan stated
16 yesterday that the circumcision is a surgical procedure?
17 A. I do agree with that.
18 Q. Now, under the subheading of complications of
19 circumcision you have identified the complications and
20 the rate of complications, and it's actually a few
21 sentences on the complications of circumcision, and most
22 of the articles cited are by a Dr. Kaplan, aren't they?
23 A. I would have to check on that.
24 Q. It's actually half the articles cited.
25 A. The first two aren't.
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1 Q. Well, 32 is.
2 A. Oh, 32, Kaplan is in on that one, 33 and 34
3 aren't, 35 is, and it cites 35 again. So it jum