Flatt v. Kantak
Day by Day 1
 

Day by Day 2
Flatt v. Kantak Press Coverage
Flatt v. Kantak, Legal Briefs
George Kaplan's Deposition
Craig Shoemaker's Deposition

Jury Section
Chris Cold
George Kaplan
Anita Flatt
 Robert Montgomery
Nurses
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The Flatt v. Kantak and Meritcare
legal suit on Informed Consent
Day by Day 1

The Josiah Flatt case began Feb. 3, 2003 in Fargo, ND. The main issue of contention is the failure of Sunita Kantak, MD, and the Meritcare hospital staff to fully inform Anita Flatt, mother of Josiah, of the risks and losses that would be incurred if her son were circumcised, as well as the lack of any medical purpose for the operation. Anita Flatt says she would not have allowed her son to be cut had she been informed as standard policy requires.

This case focuses on the what physicians must tell parents to avoid liability. However, a larger issue that was part of the ND FGM Suit (dismissed from this lawsuit) is whether anyone has the right to ask to have amputated, or to amputate, any normal body part from anyone who has not given consent. The physician's responsibility is to his patient, and in the case of circumcision, the patient is the child, not the parent. The day is coming, if not here (see NY Stowell Case), when the rights of children to decide for themselves whether to have normal body parts amputated, will be recognized and respected. The words are already written: See the American Academy of Pediatrics position statement on informed consent and physician responsibility.

In pretrial proceedings, Judge Cynthia Rothe-Seeger denied the use of circumcision surgical tools and video tapes of circumcisions being performed as evidence in the case. Attorney Baer questions how the jury can be fully informed of what a circumcision entails without such evidence. The judge did open up the courtroom, however, to expanded press coverage, so there was a camera in the courtroom.

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Fargo ND, Mon. 2-3-03. The trial began today with jury selection. Fargo sits along the Red River of the North upon one of the flattest regions in the world. The courthouse is an old rust-brown block building with the obligatory cupola. Up the marble stairs on the 3rd floor in a room about 25 by 25 feet with 3 rows of benches for observers, the proceedings take place, while in a room about half that size press personal are gathered around monitors and tape recorders. The local media are there in force. Others are expected. Seems everyone in town has heard of the trial.

Three prospective jurors were dismissed in the morning because they worked at Meritcare, the institution being sued. The afternoon was taken up with attorney Baer's questioning of jury candidates. Some of the questions included: Have you any prior jury experience, if so, how did you feel about it? Do you have any connections to either law firm representing the plaintiff or defendants? Do you know any of the possible nurses who will be witnesses? Any of the physicians? Are you hard of hearing? Poor vision? Have you read or heard anything about this trial from the media? Have you formed any opinions from the exposure? Will the expanded coverage by the media make you feel uncomfortable? Do you have any friends or relatives in the healthcare business? Ever ask for a second opinion on a medical issue? Has anyone consented to having a child's ears pierced? Navel? Tattoos? (This brought the only objection which was sustained.) Anyone have religious reasons for circumcising a child? None. Anyone have cultural reasons for circumcising a child? Still no responses!! (Will likely hear more of this later.) Anyone give consent to have a child circumcised? About half the group had. Then Zenas went into an extended questioning of how each arrived at that decision? Was it prior to speaking with a medical person? What was told you about the pros and cons? Cleaner and look like others. What were some of the cons? No one could think of any that they were given by medical personal. Are you aware that circumcising is controversial? No, or, now I am. "Would you be uncomfortable discussing foreskins, penises and genitalia?" No, this is 2003 to, yes, I'm of the old school (and elderly women said). Did any physician talk to you about the function of the foreskin? No. The panel of prospective jurors was split between arriving at the hospital knowing what they wanted to do, and those who were asked by the hospital staff.

There was a sense that most would do more thinking about the issue now than when they consented, whether that was in the 50s or last year. Zenas will continue the questioning tomorrow morning; and then the defendant's council will ask questions of the panel before the parties decide on which prospective jurors to use any or all of their four rejection vetoes. Testimony will likely start on Weds.

Fargo ND, Tues. 2-4-03. Jury selection continued thruout the morning. On woman said she realized she was distantly related to Anita Flatt and could not be unbiased; she was dismissed "for cause." Zenas continued questioning jurors as to whether they ever had to make the decision to circumcise a child. One reported what seems to be a common answer when a nurse or doctor is asked why one should circumcise a child: "They (someone in 'healthcare') said it was the thing to do," giving little or no additional reason for doing it. Question: Do think there is harm in losing a foreskin? Hesitation. What about the loss of a finger. Yes. An earlobe. Hesitation, yes. A foreskin? No,...unless evidence can show something I don't already know.

Again Zenas asked whether anyone belonged to any group that have cultural reasons for circumcising. No one said yes, despite that fact that even medical associations, like the American Academy of Pediatrics, say there are no medical justifications for cutting health infants, but there are legitimate cultural reasons. Has anyone ever been asked to provide consent for a medically indicated circumcision? No. Has anyone left a male child intact? One person did: he left twins intact, since no one in his family was cut. (This juror was later excluded by the defense attorneys by using one of their four preemptory vetoes.)

The next line of questioning focused on who one would tend to believe (if it came down to one's word against another), the patient or a nurse? The patient or A doctor? All said they had no presumptions. Question: Have you heard the expression, "If it isn't documented, it didn't happen"? Yes. Next focus was on Anita Flatt's position and responsibility. Does the mother's being a lawyer cause a bias? One said that Flatt should be used to asking questions and should have become informed. Any problem with a 6-year-old bringing a claim? No. Any problem with a law that allows a parent to bring a claim on a child's behalf. No. Everyone was asked to what station his or her car radio was  tuned, and whether she or he considered that she or he as a leader or a follower. All but two said they were leaders. Many were asked whether they wanted to serve on the jury. Most, yes; a couple, "not especially." All were asked where they got their news. One, who had 3 sons at Meritcare over about years, was asked whether she could separate the procedure regarding the hospital's information about circumcision presented to her at the three different times.

Then Jane Voglewede, defense attorney, had her chance to ask questions of the jury pool. She told them a trial requires much patience, particularly in waiting until all the evidence is in, not just the presentation by the plaintiff which will come first. She asked them what they did for a living, and had anyone suggested to anyone else that they should have a circumcision done on their child. At this point both sides struck out jurors they did not what, one at a time, until only 10 of the eighteen were left, nine jurors and one alternate, four men and six women.

The judge then admonished the jury not to talk, or allow anyone to talk to them about the case, before adjourning for lunch. After reconvening, a point of law was raised about the content of the attorneys' opening statements. The jury was sent out for an hour and a half while it was discussed before finally sending them home while more procedural matters were discussed. The defense was concerned that Plaintiff's attorney would be bringing in witnesses who would discuss the history of circumcision and procedures that were not done in the Josiah Flatt case. Plaintiff's attorney was concerned that the content of the defense's opening remarks contained conclusions not established. The judge again told Zenas that the trial was not a referendum on circumcision, and only was was relevant to informed consent would be allowed. Zenas questioned how he could talk about what a fully informed consent would include if he could not talk about what was done and what was amputated. All hoped they could get on with witnesses tomorrow.

Fargo ND, Wed. 2/5/03. 12 below zero, wind chill 35 below zero, in Fargo, but things are warming up fast in the ol' town tonight! The informed consent trial was the top of the 6 o'clock news on two of the four local TV stations and featured on the others. Similar sound bites were chosen. Zenas Baer is shown, during his Opening Statement outlining what the trial will try to establish, pointing out that circumcision causes lost of erogenous tissue, has risks that include death and amputation of the penis, diminished pleasure for one and his partner. Chris Cold, and anatomic pathologist from Wisconsin, is shown with his drawing board full of diagrams of penises and clamps. But back to the start of the day.

Judge Cynthia Rothe-Seeger outlined the court procedure for the jurors. Jurors are not allow to get any information but that presented at the trial, though they can bring with them what is common knowledge, not about the case, but about general principles. She said the concluding statement by the contending parties will try to draw the information together, but it is not evidence. She said she thought it better to depend on the jury's "collective recollection" than on anyone's notes--that note-taking could be distracting.

Zenas pointed out as he began his Opening Statement that he will provide a roadmap in general terms of where one is going and what one will likely see. The plaintiff must prove her case using videos, paper trail, factual witnesses and expert witnesses. The claim to prove is that Kantak and Meritcare failed to obtain informed consent from Anita and James Flatt because the full range of benefits and risks was never presented to her, and when the consent is proxy consent for someone else, the information must be even more adequate.

Then Zenas presented a lengthy outline of the events surround the birth of Josiah Flatt on March 6, 1997 and his circumcision the next day and subsequent concern by Flatt in weeks following that the circumcision was not done correctly. This concern caused Jim and Anita to do research on circumcision. The information they found left them feeling duped. Had they known the risks, they would never had allowed it to be done.

Zenas said the defense will claim Anita Flatt was informed before the operation by Kantak of the what the operation involved. Anita will claim she never say Kantak nor was ever given any printed matter discussing the procedure.

Plaintiff will present testimony that an adult foreskin is about a 15 square inches of complicated tissue filled with fine-touch nerves like that of the fingertips, that encloses the glans penis keeping it an internal structure, like all mammals, except when it is erect. Testimony will show there is no medical necessity for amputating the foreskin, a claim not disputed by the defense.

When Zenas started to describe Josiah's birth, which apparently was not a "normal" hospital delivery, to set the stage for Anita's state of mind when she was presented the consent form, the defense objected again, and the jury was sent out. The judge ruled that the circumstances around the delivery would not be discussed. The events between Josiah's birth and the time he was cut are in dispute: Who said what and when; who gave what to Anita and when. In the end it looks as if the jury will have to believe Kantak who supposedly followed a procedure (even though she cannot recall doing so), or Flatt who claims not to have been given even the routine information.

Zenas then outlined the witnesses he will call: Chris Cold (to describe the foreskin and methods used to amputate it and complications and losses that result; Robert vanHowe (on pediatric standards, AAP standards and duty to patient rather than parent), Eileen Wayne (on the legal elements of informed consent), Anita Flatt (her husband Janes was killed in a car accident a couple years ago), some nurses at Meritcare, some other M.D.s who treated Josiah.

During a break a jurist realized that she knew Anita's mother. Another discussion in chambers resulted in a decision not to dismiss her. Then Jane Voglewede outlined the defense, claiming Kantak gave sufficient information prior to Josiah's circumcision to Anita, and, in any case, that Josiah sustained no injury. She outlined the days and events in contention, claiming that Josiah was born a healthy baby. She outlined a typical day for Kantak which included visitation to the nursery and contact with the parents during rounds. She said Kantak always says the operation is not medically indicated, that there is controversy over whether to do it, even mentioning that some say it diminishes sexual pleasure. Finally, all are given the booklets developed a few months before and written under the direction of Craig Shoemaker (see ND quotes) who will be one of the defense witnesses.

She then tied Shoemaker to the AAP as one of the taskforce members and one, therefore, who has inside information on what the AAP statement on circumcision says and how it came about. She then castigates the proposed expert witnesses for the plaintiff by saying they don't do circumcisions. She went into a history of the several AAP statements on circumcision going back to the 70s and ending with their most recent 1998 statement (which later allowed Zenas to introduce historical material). She made much of the AAP's promise to provide a statement that is "evidence based," but then pointed out that the taskforce also claimed it was legitimate for parents to consider other factors in making a decision to circumcise (she gave no medical evidence for how this statement was "evidence based," nor on what grounds a physician could use the parents' desire to amputate as legitimate grounds for ignoring what the AAP says elsewhere, namely, that the interests of the child take priority over that of the parents, and that that interest cannot be dismissed just because of parental wishes).

Finally, Chris Cold was called to testify. Under questioning, he outlined his background and publications. He said he was seduced into circumcising his son while a physician in the Navy and only began to seriously think about the anatomy of the penis in the mid 90s after being told by a Navy physician that he had a scar on his penis and reading Taylor's article on foreskin anatomy in the British Journal of Urology. After another objection from the defense on the use of slides (with the jury sent out) to illustrate the anatomy of the foreskin and the procedures to cut it off, the judge decided to let Cold testify until noon without the slides and determine during noon hour what to do. She decided to deny their use because they were not disclosed as exhibits prior to trial. Zenas claimed that they were not exhibits, but illustrations needed to explain and clarify.

Cold then proceeded to describe the anatomy of the foreskin and its hard-wiring into the brain. At the juncture at the end of the normal, intact penis between the inside mucosa and the outside skin is the ridged band which contains many specialized fine touch receptors designed to evoke an erection when stimulated.  When "deployed" the juncture moves down onto the penile shaft exposing all the underlying mucosa. Before 8 weeks from conception, the fetus' pubic region is not recognizable as male or female. Even at birth the penis is not generally "mature," meaning that the foreskin is not yet a separate organ from the glans. It is like the relationship of a fingernail to the nail bed, and tearing it from the glans is likewise as painful as tearing up a fingernail. As the penis matures, the foreskin separates from the glans. Premature retraction (separation) causes sores that can get infected.

 The glans penis is an internal organ that is kept soft and moist by the foreskin's protection. Once exposed by its amputation, the glans dries up and becomes hardened and less sensitive. Cold pointed out several ways the amputation could be carried out: PlastiBell, Gomco Clamp, Mogen Clamp, Shield or freehand. At which point, the defense objected that there is no need to discuss any other than the Gomco, the method used by Kantak. Another huddle at the bench resulted in Judge Rothe-Seeger dismissing the jury once again. Baer pointed out while the jury was excused, that informed consent requires that alternatives be presented and that different procedures result in different amounts of tissue being removed, but the judge sustained the objection.

Cold proceeded to try to describe the Gomco procedure with drawings and gestures. Nerves in the penile shaft try to reconnect, but the nerves they seek to reconnect to no longer exist so they fan out at the scar and may cause strange sensations or numbness. The amputation also cuts through the dartos muscle that goes from the base of the penis to the ridged band. Blood flow is truncated. The foreskin is a five-layered structure that must be painfully torn from the glans in order to insert the Gomco bell that protects the glans from the knife after the clamp has crushed the foreskin against the bell. Here an attempt was made to introduce the Gomco clamp to help illustrate how the procedure works. The jury was again sent out. Judge Rother-Seeger denied the introduction of the clamp as she said she would in pretrial proceedings. Zenas introduced it anyway, and it was accepted as a court exhibit but would not be allowed to be seen by the jury. The circumcision tray and its many hemostats, knives, etc., were similarly introduced. Finally, Zenas introduced five photos (taken by John Erickson) showing the movement of the ridged band down the shaft of the penis until it was nearly at the base of the penis. Defense then asked that Cold not be allowed to discuss the topic of pain, but was over-ruled.

The jury came back and Cold drew a picture of a Gomco clamp and tried to explain how it pulls the foreskin up allowing the maximum of mucosal tissue to be removed. He pointed out that the tearing and crushing is very painful and several methods have been tried to reduce it, though none are completely successful. He pointed out that the foreskin has several functions, including protection of the glans so it does not dry out and get keratinized; that it is highly erogenous tissue; that it provides a covering for the "deployed," erect penis whereas an erect circumcised penis may have to little tissue left and be tight and painful.

Baer then introduced Ron Goldman's work on the psychological effects of circumcision as an exhibit. The work was accepted, but only for courtroom discussion, not to be sent to the jury room. Goldman's work discusses the imprinting early pain can have. Some of the early U.S. history of circumcision from the mid-19th Century was pointed out, including the fact that circumcision was thought to make one "cleaner," that is, morally better, not hygienically cleaner. It would prevent masturbation, club foot, and many other unrelated conditions. Of course, Cold pointed out, that an organ removed will not be around to have problems, but most people like their organs. Few women remove breasts, even those who know they are genetically predisposed to cancer.

The English language has been hijacked, Cold said. "Circumcised" is now considered normal, so abnormal is "uncircumcised." No one ever says one's normal arm is unamputated. Cold says the logic of circumcision from the medical institution's point of view is: We want to sell circumcisions to prevent so and so, so we can make so and so. That amount is in the hundreds of millions of dollars a year. At 4:30 his testimony was cut off, and court dismissed for the day.

Fargo ND, Thurs. 2/6/03. Jurors, witnesses, attorneys and spectators woke to bitter cold again today in Fargo as Chris Cold resumed testifying. The court room also held about 10 legal secretary students assigned to observe the case for a while. I told them they could get some background by going to BoysToo.com, and was very surprised to be told they had all done a circumcision search the night before and found this site to be the most interesting and helpful.

Under questioning from Zenas, Cold said he even has to obtain permission to cut up cadavers. The purpose of informed consent is to protect the patient, and the same principles apply across all medical disciplines. Zenas asked who the patient is in proxy consent, and what risks must be discussed with the patient. All, Cold replied. This brought a defense objection. Zenas asked what are the risks of circumcision? 100% foreskin removed (Gomco method); exposed glans with open wound contaminated with fecal matter; permanent scar; meatal stenosis; 5% requiring additional surgery; alteration of sexual function (Winkelman study); amputated penis and possible conversion to female (Money case); partial amputation causing hypospadias; death; scar formation that can become sever causing painful erections, as will cutting off too much which causes painful erections.

Next hospital and clinic records were introduced, and questions asked of Cold. Does the consent form state risks or possible benefits? No. There is also no reason for why the procedure was done since the surgery has no medical benefits. A patient teaching record form, Cold continues, is dated the day after the circumcision was done.

Then a booklet on infant care is introduced, and Cold is asked whether the information it contains on circumcision constitutes informed consent. No. Cold's comments on the booklet's contents included:
Agrees that circumcision is the most common surgery; but disagrees when the booklet describes the foreskin as "skin, since it is as much mucosal tissue with a complicated 5-layered anatomy. He had no problem with religious cutting, but not as a rite performed by physicians. The mention of phimosis as reason to cut is wrong since no infant can survive in the womb if it could not urinate, which they do beginning sometime in the 2nd trimester. He agrees with the quote from the AAP that they do not recommend circumcision; Cold said it is misleading to say circumcisions performed in hospitals are "very safe," since many complications do occur; the booklet's comment that the procedure is usually done the second day (that is, before the baby leaves the hospital), is not good advice since there is no good and safe way to prevent neonatal pain--waiting even 6 months would allow the safer use of general anesthesia. Cold said the consent of both parents is very important; the booklet's listing of risks as bleeding and infection are just two of many complications necessary to be disclosed to establish informed consent. The statement that circumcision is ritualistic surgery is correct (the only one performed by medical personnel), but a  comparison to ear-piercing is not accurate since ears are pierced usually when the child asks for it and no tissue is amputated. The information in the booklet on the "uncircumcised" penis is fairly well done: Leave it alone, is the best advice; the recommendations for post-operative treatment of the wound is ok--Vaseline is used to keep the wound from attaching to clothes or bandages and ripping open again.

The pamphlet "Should Your Infant Boy Be Circumcised" is introduced, and Cold is asked whether the information therein meets informed consent standards. No. The anatomy is inaccurate; Gomco removes all the foreskin, not just some. Cold said it would be easier to have pictures to explain. He said that the number of deaths from circumcision is understated because physicians and hospitals do not want to admit to killing an infant, so the cause of death is listed as something else. Sexual surgery should not be done on those not sexually active. Studies of those circumcised as adults report that 27% had less satisfying erections. In 40% the penile length was shortened, and 65% of one's sexual partners noticed a difference. The pamphlet says that circumcised males have less bacterial and fungal infections, but the standard of treatment for them is antibiotics, not amputation--in any case, all one's body's mucosal tissues have some bacteria, a necessary condition for health.

The two benefits mentioned are stopping cancer of the penis and reducing cervical cancer in women. But Cold says that penile cancer is very rare (more men die of breast cancer), and studies have shown that women are not protected from cervical cancer. The circumcision reduces urinary track infections, UTIs, may be partially true, but 99.5% will never get one, so the risk of cutting is greater than any benefit that may occur for a few months; females get many more UTIs than males.

On the topic of pain control and whether infants feel pain: He said you don't need to have a medical degree to know a child is in pain, but there are physiological signs: crying, heightened blood pressure, increased heart rate, clinching of the fists (I don't recall that he mentioned elevated hormone levels). Sugar pacifiers may stop some of the crying but do not affect the systemic signs of pain. A dorsal (nerves along the top of the penis) block is not always affective, and does nothing for the ventral (nerves along the bottom of the penis) pain. A ring block is better, but more risky, as is general anesthesia. Best to wait until child is old enough for general anesthesia.

Zenas introduced some of the defense's exhibits, including a professional drawing of a Gomco clamp, an intact infant penis and drawings of the movement of the foreskin as it unfolds down the shaft. He also introduced the Circumstraint board which the court accepted, but not for the jury to see.

Cold was asked to comment on an operative note written by Kantak. He said the note was missing items: Why the procedure was done, that is, the medical indications; a more accurate description of the anesthesia used; what the findings were after the operation; whether there were any complications; and, finally, the time the operation took.

He was asked to comment on the AMAs Code of Ethics regarding the physician and his or her patient. They require the physician be knowledgeable in his or her field of practice, and keep up to date. They are to report incompetent physicians, and that one's duty is first to the patient: First Do No Harm. Regarding the paperwork on Josiah, nothing indicates informed consent was given in content provided or prior to the operation.

During cross examination by defense attorney Lord an attempt was made to show that Cold was not competent to perform circumcisions or testify about them. Lord pointed out that Cold had an interest in chimpanzee and ape penises. Cold responded "mammals." She tried to leave the impression that such an interest was abnormal and tied up with a belief in evolution which many North Dakotans still will not accept. She worked hard to get Cold to admit that that the loss of sensation is not "well studied," a phrase he used once in his deposition. Zenas on redirect had Cold point out that even the Meritcare pamphlet says circumcision reduces sensation (it also mentions Moses Maimonides in the Middle Ages saying so).

Robert Van Howe was called to witness. He gave his academic background, including finishing a degree on how to design medical studies. His specialty is pediatrics. He became interested in the circumcision controversy listening to an interview of Tim Hammond on Wisconsin Public Radio. He was taught in medical school that circumcision has no medical indications, but learned nothing about the foreskin's anatomy. He was part of the "Taught one; do one, teach one" method of learning about circumcision.

[The information on the rest of the testimony this day is provided by Jody's notes. If Jody, or anyone finds misinformation in this trial description, I would appreciate your input. This day's testimony as recorded her will be corrected if necessary and expanded when I receive Marilyn's notes.] Van Howe did a review of the medical literature on circumcision back to the 60s, and could find no scientific basis for the procedure on healthy infants. Under questioning, he discussed the complications of circumcision, the ethics of performing an unnecessary amputation on nonconsenting individuals, and the circumcision material in the Meritcare handout, "Should Your Infant Boy Be Circumcised" saying it contain much out-of-date material--also way the statistical material is presented betrays a bias towards circumcision; he compared male and female genital amputations; and discussed the AAP's taskforces statements on circumcision, saying they are not consistent. He asked them to declare a moratorium on infant circumcision--since if it were to be introduced today, it would not be allowed. He was especially concerned that their most recent statement contains nothing on the function of the foreskin, inexcusable now that research exists on the subject.

He gave the rates of U.S. infant circumcision: West, 35.5%; Midwest, 85% or more; East, 45% or more. Worldwide: U.S., 58.8%; Australia, 10.6%; Canada, 17%, New Zealand, 3.5%, United Kingdom, 0.1%.

Defense attorney Lord introduced a subpoenaed letter from Van Howe to Zenas wherein Van Howe says there is not enough damage due to Josiah's asymmetrical circumcision to win a lawsuit. (This would be damaging to the plaintiff's case if the suit were about operative outcome rather than about informed consent--that is, the complaint in this lawsuit is that the amputation should never have taken place (and would not had fully informed consent been requested, not that the way it was done was faulty.)

Anita Flatt was called to testified for 30 minutes at the end of the day during which time she stated that her child was subjected to unnecessary surgery, that he was harmed and sustained an injury. As for Sunita Kantak, MD, Anita said she didn't know her, didn't ask to see her and that she crossed Kantak's name off the card on the nursery bassinet when she saw it there assuming it must be a mistake.

Friday, 2/7/03. [This day is also from Jody's notes so far. This account will be supplemented with other notes as I received them.] The days started out with plaintiff, Anita Flatt, on the stand. The booklets, Exhibits 57 and 58, supposedly given Anita on infant care and circumcision are introduced. Anita says she never received these publications.  Jean Platen, risk management for MeritCare, became involved when Anita was concerned that something was wrong with Josiah's circumcision.

The court was shown a home video by Jim Flatt taken at the hospital the day of, and the day after, Josiah was born, wherein Kantak never appeared. It ended with pictures of Josiah's asymmetrical circumcision later at the Family Birth Center.

On cross examination, Anita said she brought up the subject of circumcision first. A nurse then brought a form on which was printed that the person signing it had read and understood it. Anita signed it.

Jim Flatt's deposition was read into the record by Zenas' aid Tim _______. Jim was killed in an auto accident since giving his deposition. He said his son's penis "looked like a bloody stump" when he saw it and would never have wanted his son circumcised had he known what was involved.

Robert Montgomery, MD, half-time medical director of MeritCare and half-time pediatrician, took the stand. Zenas's questioning brought many objections from the defense. The judge told Zenas that "the court will advise the jury what the legal requirements are for the 'standard of care'." After the jury was dismissed for the day, Vogelwede objected to Zenas' questions which she said went beyond the scope of fact. Montgomery was not there as an expert witness, only as to the facts regarding letters exchanged with Anita and others regarding Anita's complaint of asymmetry. Zenas gives a lengthy plea for his attempt to establish for the jury what the local standard of care is. The judge said she will allow examination on letters only, since Zenas did not file Montgomery as an expert witness.

A motion by defense to allow Kaplan to testify Monday out of order, which Zenas opposed, was granted.

Fargo ND, Monday 2/10/03. Nineteen degrees below zero with a north breeze greeted George  Kaplan, pediatric urologist, from sunny San Diego, CA, as the trial resumed on the 3rd floor of the old Cass Country courthouse here in Fargo, ND. Jane Vogelwede, attorney for the defense had managed on Friday to convince the judge to let Kaplan testify today since this fit into his schedule, so Zenas had to put off finishing his presentation.

Kaplan right off the top said Kantak had meet or possibly exceeded the standard of care for Flatt, then went into his credentials, his education and publications. He said he performed circumcisions, tho only on 2-3 newborns a year, the others on older children who had been referred to him for circumcision complications. He estimated he circumcised about 3000 over his career, mostly by the freehand method, but he teaches all the techniques. His involvement with overseas medical societies and meetings has not changed his mind on circumcision.

He is a member of the AAP and was appointed to the recent taskforce on circumcision. Defense then introduced a summary of the  AAP's statements on circumcision:
1971--"no valid medical indication" for circumcising newborns.
1975--"no absolute medical indication" for circumcision. He claimed the change reflected the increasing knowledge that circumcision had benefits.
1983--same as 1975.
1989--"some potential advantages and some disadvantages." When asked what the new evidence was he said: (1) UTIs in newborns were 10x that of uncircumcised boys, (2) uncircumcised adults men develop penile cancer, and (3) some evidence it helps reduce STDs and cervical cancer.
1999--repeat of the 1989 statement: "advantages are not so compelling as to recommend circumcision as a routine." It added parental involvement say it is legitimate for them to consider culture and religious beliefs (he never said how this was "evidenced based"). The AAP now accepted that babies feel pain (17 years after they had been present with the evidence), and given now that there was "effective" pain relief methods, they recommended the use of anesthesia (or analgesia--the difference was not clarified).

He was then asked by Jane Vogelwede what "evidenced based" meant. He said they looked as medical studies since the '60s and  gave them various degrees of importance depending on how the studies were done, from double-blind crossover to single case reports. When asked why go over studies other taskforces had looked at, he said they may have made mistakes in interpreting the evidence. The 1999 statement included religious and cultural factors for the well-being of the child since the child will have to live in that environment.

Why didn't other statements include anesthesia? (Defense always used "anesthesia" though Kaplan would respond with both anesthesia and analgesia.) He said newborns were thought not to feel pain in the same way as adults, but now we know they have the same physiological reaction: elevated blood pressure and steroid levels. Pain relief was dangerous for newborns (that is general anesthesia), but now the dorsal block (Kantak's procedure) is "effective."

The AAP gave no formula for the informed consent process, but he said parents should be told (1) what the physician is doing, (2) why he or she is doing it and (3) what the general risks might be. The process should proceed until the parents are "comfortable and have all their questions answered" (apparently the physician is under no obligated to raise questions or concerns).

He was asked whether Van Howe appeared before the committee. Yes, but the committee came to a different conclusion. They discounted his data because it was not gathered in as strong a form as others, so the AAP did not call for a moratorium. He stated that Kantak did indeed inform Anita sufficiently and that no contra-indication for the procedure was noted. When asked what he tells parents, he says there are some benefits from lower UTIs in first six months, but like all surgery it has risks, namely, bleeding and infections (later says these are usually only superficial skin infections). He says nothing about adhesions, asymmetry (though he later says this is a very common outcome), etc., nor death. He said the physician need not discuss the method used, nor the the advantages or disadvantages of techniques he or she does not use (even though testimony from others say there cause different outcomes).

Kaplan said there was no injury to Josiah from his circumcision. No complications, only an adhesion. He was at pains to distinguish two kinds of adhesions: skin bridges (which are complications) from "natural adhesions." Here he gives the normal penis anatomy, that the foreskin and glans are usually "stuck to each other," and that in a circumcision these adhesions must be separated. What Josiah had was some residual foreskin stuck to the glans. It would separate on its own as he matured, and that surgery would only cause a risk of scarring, and should be left alone (Kaplan was generally concerned that premature retraction not take place--something that only causes pain and guilt feelings in the mother). Josiah's asymmetry is not a "complication" according to Kaplan's definition. When asked to comment on the surgical note in Josiah's medical records, he says it meets the standard of practice.

Kaplan said he wrote the section of the AAP statement on complications which says there are 2-6 complications per 1000 in the 1.2 million circumcisions a year. These include bleeding and superficial skin infections, plus a few "isolated case reports" of recurrent phimosis. Death was not reported as a complication. Nearly all deaths, he said, are the result of other factors, like bleeding to death. He discounted Chris Cold's testimony of the possibility of amputation neuroma.

As for sexual function, there is no data on dysfunction or satisfaction except circumcised males have more varied sexual practices (anal, oral and masturbation). When asked, he said "I don't know that the function of the foreskin is known." No one does. Urination and sexual activity (procreation?) are the only functions of the penis.

Here Zenas Baer took over cross-examination. He asked Kaplan whether he had been president of a synagogue organization [I need to get the exact title here], and was on the board of the Anti-Defamation League. He said he had been. Zenas read the conclusion of the 1999 taskforce statement on circumcision, then pointed out that informed consent information should be provided before the child is born, that the 1989 statement says the parents should be fully informed before consent is obtained. Zenas asked Kaplan whether he made money doing circumcisions, and after hesitation, he said he charged a fee.

In a discussion of the standard of care, Kaplan said he thinks it is pretty much a national consensus and is reflected in the AAP statement. Zenas then read part of the 1995 statement of the bioethics committee where it says the primary duty of the physician is to his patient. Informed consent elements include:
(1) Assessment of the nature of the problem, risks and benefits of suggested procedure, including risks of alternative treatment, including no treatment.
(2) [?]
(3) Since the infant patient cannot give consent, there must be an assessment by the physician of the surrogate's ability to make an informed decision.
(4) Patient/parent must be given assurance he or she can choose an alternative.
The physician must stay abreast of new developments? Kaplan, yes. He or she must look out for the best interest of the patient? Yes. Despite what parents wish? Yes. Would you cut off a finger? Kaplan, yes, if it was an extra digit. If it were a normal finger? No. Would you pierce ears? No. How about a clitoris? Would you pierce the foreskin and put in a post? No.

But if a parent wants to cut off the male foreskin, you would do it? Yes, because the benefits outweigh the risks. Shoemaker (in his deposition) says "No risk is too small" not to mention to parents, and Kantak says all risks should be disclosed. When Zenas asked, are "circumcisions performed for cultural reasons?" the answer was, yes.

Kaplan agreed that physicians are resistant to change. The pain studies of the 70s made no impact on the AAP until the late 90s, seventeen years lag-time. Kaplan thought seventeen years was a short time in medical practice. He also agreed that neonatal circumcision is done with no present medical problem--only done to prevent  future possible harm.

Zenas Baer read selections from Kaplan's publications, where he had traced the history of circumcision back to Genesis and observed that those who hold religious reasons for circumcision will seldom be dissuaded by medical evidence. A graph of the normal time for foreskin separation showed: 97+% are attached at birth; 63% at 6 years of age; 3% still attached at 16 years of age. He said premature retraction is torturous, and only causes parents to feel guilty following a physician's instructions to retract; it is "cruel and unusual punishment," a quote from a publication of his. But he went on to say that if the foreskin is forcibly retracted in order to cut it off, it is not cruel and unusual punishment.

Kaplan agreed that hypospadias is a contraindication for circumcising. He agreed that newborn circumcision is prophylactic only, to prevent future problems, and for hygiene. When asked whether the standard of care isn't soap and water rather than amputation, he responded, "I don't think so, any more." Isn't aesthetics another reason for circumcising? Yes. He also said he will take off a teen's foreskin if he wants it--after telling him what's involved. Then Zenas asked, what do you tell him about the function of the foreskin? Hasn't the normal penis become abnormal after cutting the foreskin off? "Normal is the intact penis, right?" Kaplan said, "True."

Kaplan said it is difficult to obtain any good information on the difference of sexual function because adults don't know the difference. He also said that consent for circumcision should be treated no differently from any other surgical consent, but all too often the the consent form is slipped in among other papers.

At this point Zenas took Kaplan through all the complications he enumerated in his 1977 publication: "Circumcision: An Overview," Current Problems in Pediatrics, Vol. 7, 1977, pp. 3-33. When asked which are need to be disclosed to provide adequate informed consent, Kaplan said only bleeding and infection. Here is the list:
(1) Bleeding: .1%-35%.
(2) Phimosis, a relatively common result of an inadequate circumcision.
(3) Concealed penis, penis pulled back into the pubic region.
(4) Skin bridging, between shaft skin and glans--fairly frequent adverse result.
(5) Insufficient skin [i.e., foreskin] removal--source of many complains from parents.
(6) Urinary retention.
(7) Meatitis (scarring of the meatus, urinary opening), 8%-31% of circumcisions--One of the more frequent complications. Meatal Stenosis far more common in circumcised than intact.
(8) Chordee--result of Gomco clamp gone bad.
(9) Inclusion cysts.
(10) Penile lymph edema.
(11) Cyanosis [?]
(12) Loss of penile shaft from necrosis or cyanosis (loss of blood).
(13) Infections, 8%.
(14) Total loss of penis, Kaplan's ultimate complication (no mention of death).

Kaplan reworked this article in '83--circumcision is the most frequent male operation. Zenas asked, since other English speaking countries don't circumcise to our extent, why do we? Is it the economic gain? When the National Health Service stopped paying in England, their rate dropped. Kaplan thinks it is due to other factors, even saying that it is because we are ahead of the rest of the world.

When it comes to the care of the intact penis, physicians make mistakes because there as so few of them. To retract before the foreskin naturally separates causes bleeding and paraphimosis. Asked why doctors are so slow to change, he could not say. Are there doctors out there still recommending retraction? Yes, he said. [Lunch break.] Zenas read the AAP statement that no special are is needed for an intact penis, and when it is retractable, to retract and wash. He also read the AAP '71 statement saying that "There is no valid indication for circumcision in the neonate." He also pointed out that 9.3% of circumcision require a repeat operation--shouldn't this be listed as a risk? Kaplan replied, yes, if this is the physician's experience.

The '83 rewrite says that infection can lead to many serious losses--disability and death, otherwise it pretty much repeated the '77 article, adding fistula, necrosis, impotency and problems caused by anesthesia that cause psycho-social issues, but all these complications are preventable with a "modicum of care" according to Kaplan. Again in '95 the article was reworked with resident help. Cost to society is now given as 150 million to 270 million dollars. The incident of penile cancer Kaplan gives for the U.S. is higher than penile cancer in noncircumcising countries. Zenas lists the tools used to circumcise and asked Kaplan whether each has its own kind of risks. Yes. This the list of complications is listed again in this edition. Pain and anesthesia have their own list of complications.

Kaplan lists the evidence for pain as increased heart rate, elevated blood pressure, decrease in blood oxygen, sweaty palms, increased cortisol levels, cry pattern, irritability, altered sleep patterns (nothing on nursing ability). Kaplan is asked whether he thought parents might not want to know these risks, he said, "Most parents don't actually care" to know these risks; "most don't" want to know. How about death? Kaplan said it is a rare event, and circumcision is not the cause anyway. But don't you think parents would want to know it is a risk? Yes.

Zenas pointed out that that circumcision is done mainly for religious or cultural reasons--that it is uncommon in most of the world--that we circumcise more neonates than any other country in the world for nonreligious reasons. Then he asked whether we are healthier for it. Does it decrease infant mortality? No. Kaplan said the UTI rate is not given in the medical literature.

Kaplan wrote the section on Complications of the Circumcision Procedure in the 1999 AAP statement. He was asked why he left out some of the complications found in his '83 article revision. He gives a .2 to .6% complication rate. He said Wiswell, Schon and Moses thought there should have been a recommendation from the AAP to routinely circumcise infants. In his deposition, Shoemaker said Kaplan was in the pro-circ camp of the AAP committee.

Next ethical issues were raised. When asked whether a mother in looking out for her son's well-being should be told all the risks before deciding whether to circumcise, Kaplan said, no. Unless the parent brings them up, I don't. Zenas: But doesn't the process of informed consent obligate the doctor to enumerate the risks and benefits? The AAP statement does not say "some" risks. Kaplan: "In my view I would not give all of them. Parents are given enough information when they think they have enough information--I will give the information I think they want and that fulfills the obligation of informed consent." Doesn't Laumann say parents must be fully informed--giving all the risks and benefits--and that no social considerations outweigh medical purpose?

Zenas then lists many of the reasons given for circumcising in past medical literature, such as, club foot.... The Finke article on adult circumcision outcomes and its affect on sexual function is brought up. Kaplan says there is "nothing totally conclusive at this point" on the affect on adults, though he did admit that some report a decrease in penile sensation, and that circumcised men engage in anal and oral sex and masturbate more often than intact men.

Zenas incorrectly assumes a nonretractable foreskin would prevent sexual functioning. Kaplan corrects him saying the only way a non-retractable foreskin would affect sexual performance is "if you tripped over it," bringing a chuckle, one of two times all day.

The focus moved next to Meritcare and Kantak and whether they fulfilled their obligation to Flatt. Zenas tells Kaplan that for him to conclude that Kantak met the standard of care he has to make certain assumptions: That Meritcare employees followed the procedures. Do you have personal knowledge that they did so? Kaplan: "But it is documented in the charts." Where? Zenas asked. There follows an examination of a couple pages from the medical record where the mother's chart has a date of 3/8/97, the day after Josiah's circumcision. Kaplan again tries to rely on the policy of the hospital staff and physicians that it is done. Zenas points out a documented epidural, but no epidural was done.

The other chuckle came when Kaplan was asked whether he saw the patient's initials on a form. He said he didn't think the baby could sign it--making it clear that he does know the patient is not the parent. Zenas says not one of the nurses in the depositions remembered giving Anita the hospital booklets. Neither did Kantak, and Anita testified that there where no booklets given to her. "You must assume Anita is mistaken?" Yes.

Then the surgical report is examined: Can you tell when the circumcision took place? No. Can you tell the amount of Lidocane? No. What tools were used? No. How much foreskin is removed? No. Kaplan says that using a marker on the foreskin by the corona will help remove the right amount. But is there a standard amount to remove? No.

Is the booklet in itself inadequate to obtain informed consent? Yes. Is it the duty of the the physician to obtain informed consent? Yes. Is the Infant Care booklet sufficient? Not by itself. Kaplan then is asked whether Anita's signature on the form proves that informed consent was obtained. Kaplan did not want to answer yes or no, because he said there is other documentation that Anita was given information. But finally answered, no.

You agree that the physician must obtain informed consent? Yes. You assume Kantak gave Anita enough information to satisfy informed consent. Nothing indicates what Kantak told Anita. But, Kaplan says, Anita is a lawyer, not just a homemaker and should know enough to get informed before signing the form. Anita testified she signed before ever talking to Kantak. Is a discussion with Kantak only about anesthesia sufficient for informed consent? No.

You don't know what the function of the foreskin is, but you remove it? Yes.

Then Voglewede on redirect: Kaplan tries to say circumcision is like other prophylactic procedures, e.g., vaccinations. He said his religious beliefs have no affect on his medial practice. He also said that "If you leave the uncircumcised penis alone, it would become retractable." Premature retraction is "cruel and unusual punishment" though that was hyperbole when he wrote it. What are medical indications for circumcision? Phimosis after scarring, paraphimosis and infections. He said he explains to parents exactly what is involved (but does not explain how that was possible if he does not know what the function of the foreskin is). "The disadvantages are short-term; the advantages are long-term."

Zenas Baer then points out some inconsistencies in the baby's chart compared to the mother's chart. No check marks indicate a physician visited Anita until 3/8/97 at 8 am, the day after the circumcision. Then a new twist on an old saying: Kaplan says that just because it is not documented does not mean it did not occur. Zenas ends by pointing out that a UTI treatment brochure nowhere says circumcision is a preventive measure.

Then Robert Montgomery, Medical Director of Meritcare Health Systems is brought in to finish his testimony left over from Friday. Part of his job is to deal with unhappy patients. He is asked how he heard of Anita Flatt. He was not very forthcoming, but eventually determined it was likely from Jean Madson from Risk Management who asked to to look into the case after receiving a call from Anita on May 14th, 1997. Montgomery wrote Anita a letter saying Josiah will have no lasting problems without every examining him. Anita called again on June 5, 1997, so Montgomery set up an appoint in his office to talk to her. Anita ended up showing Josiah's penis to Montgomery who made no notes of what he saw because he said it was not a medical exam. His office also did not keep phone records of calls made.

Montgomery arranged an exam with Dr. Sawchuk to see Josiah. Zenas establishes that all those involved at Meritcare are concerned with this case from a risk management point of view. Sawchuk said the asymmetry was a common result of the Gomco clamp. He ripped apart he reattachment of the remnant foreskin to the glans.

Zenas asked Montgomery whether the foreskin removed was normal, healthy tissue. Yes. Also asked him what the foreskin is and its does:
(1) lubricates the glans? Probably does.
(2) protects the glans? Yes.
(3) contains blood vessels? Yes.
(4) rich in verve endings--fine-touch nerves? Yes
(5) like all mucosal membranes? Yes.
What is the purpose of the foreskin? Objection. Sustained.

Tuesday, February 11, 2003. [from Jody's notes;  this account must be filled in, verified and corrected by Jody and Marilyn's notes] Montgomery back on stand. Established that Montgomery requested Dr. Sawchuk to evaluate Josiah. The report noticed adhesions. Montgomery's letter to Anita addressed two issues regarding the circumcision: (1) Josiah is fine-recommend doing nothing now or in the future, and (2) a billing error, namely, charges for ___ to attend the birth. Sawchuk said something could be done now (separate the adhesions right there in the office) or later under general anesthesia. Anita requested _________ medical records for her son--the hospital did not send all the records to her.

Montgomery is asked what his job involved. He serves as liaison recruiting physicians for satellite clinics, ______ medicine, deals with patients who are unhappy with their doctor's care.

Dr Mastel thought the asymmetry was not significant and would disappear in time. Within 1-2 years the asymmetry should be barely noticeable. Montgomery based this statement on his experience and a conversation with Dr. Sawchuk.

Jean Platson was subpoenaed. Defense moved to stop subpoena saying her documents would be privileged. She is not listed as a witness. Objection sustained.

______saw a small a small amount of asymmetry an thought "He (Josiah) looked good. Good medicine was  practiced." Montgomery gave the opinion that the asymmetry would be barely noticeable in a few years and it would not cause sexual or any other problems. The the court recessed to wait for nurses to come to testify.

Nurses: Doreen Brass, RN testified that she was on duty March 5th and 6th in the nursery from 11 pm to 7 am. She filed in the newborn admission form with information on top [?] and apgar scores. The nursery room nurse is responsible to find out whether baby is to be circumcised--"just part of what we do." Part of this responsibility as a nurse is to ask parents if they want their child circumcised. She has assisted in 12 circumcisions during her time at MeritCare (at the time of her deposition). 90 to 95% of babies born at MeritCare are circumcised. Very unusual for a baby boy not to be circumcised at MeritCare Hospital Family Birth Center. The hospital initiated a nursing plan that included circumcision. This plan is kept on the baby's chart. Recess.

Rita Korvan(sp?), RN, to the stand. She has no recollection of caring for Anita or Josiah. She was the Nursery Room nurse who did rounds with Dr. Kantak when she was on call. Rita is familiar with Kantak's normal routine which includes the daily exams of infants, their circumcisions, the charting of the operation and going on rounds to the mothers. She doesn't know the exact number of circumcisions at MeritCare. Her deposition said, 90%. She has assisted and observed circumcisions. Babies cry loudly, which could be interpreted as a scream. She cleans airway in case baby throws up. Asked whether Gomco clamp crushes vascular system, she said she hadn't thought about it. Is she aware that some doctors....Objection. Sustained.

Rita has been a nurse for 21 years, CCB educated. Is a fact consultant, 19 years at the Birth Center. She goes on rounds "very often" with Dr. Kantak. Kantak asks parents: "Have you thought about circumcision?" She gives them Hepatitis B information also. She is consistent in how she discusses circumcision with parents: She says it is a personal choice of the parents; it is not recommended by pediatricians; she uses Lidocane for pain control, and sugar. She says there is a risk of bleeding and infection. She asks why they want it done. Parents respond: Husband wants it done; they want to avoid having to do it later in life. Kantak hands out circumcision literature: Should Your Infant Boy Be Circumcised? and infant care booklet: Infant Care, the First Six Weeks. She addresses common concerns. (The booklets are entered as evidence.) Zenas asked her what the parents would say to Kantak. Usual response is yes to circumcision. Kantak would insist on continuing to give information on personal choices, bleeding, etc.

Kantak did the home visit to assess mother and baby at home. The exam included color, breathing, heart rate, eating, assess the circumcision and answer any questions. Rita does not recall anything about the home visit to Anita's. Records show Josiah had only lost .5 oz; common for babies to loose weight in hospital.

Rita said she is full-time at Family Birth Center, that working with Kantak "very often" means 100 times or more. This year she has worked with Kantak about 25-30 times. Each year since 1997, 30 to 100 times. There have been routine calls regarding bleeding and infections. Does Kantak mention death as a risk? No. Does she compare it to FGM? Yes. Does she mention imbedded penis? No. Cardiac arrest? No. Urethra fistula? No. Severed penis? No. Recess.

Before the jury returned, Judge Cynthia Rothe-Seeger said the trial is taking too long. Jurors are asking when it will be over.