THE FORUM, Fargo, ND, 5 February 2003.

Circumcision case hung up

By Jeff Baird

The Forum - 02/05/2003

Attorneys Tuesday picked their jury in the circumcision lawsuit involving MeritCare Hospital, but that's about all they could agree on.

East Central District Judge Cynthia Rothe-Seeger dismissed the jury after listening to more than an hour of attorneys rehashing old arguments about what should be allowed during the trial.

"How can we keep moving forward when I get stopped all the time?" said a frustrated Rothe-Seeger. "You can't even agree on what we should allow in opening statements."

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

Anita Flatt, now an attorney at her attorney's law firm, signed a circumcision consent form, but hospital staff didn't describe the benefits or risks of the procedure, the lawsuit says.

She wouldn't have consented to the procedure had she known what it entailed, Flatt said.

She is asking for an unspecified amount in damages.

The trial bogged down after lunch when Flatt attorney Zenas Baer filed a motion for Rothe-Seeger to reconsider an earlier ruling preventing him from showing the jury videos of circumcision, tools used in the procedure and pictures of uncircumcised penises.

With the jury waiting in a separate room, Baer told Rothe-Seeger he needed to introduce the videos, tools and photos to prove damages.

"It's hard to prove damages without showing what is lost," he told the judge.

Rothe-Seeger denied the request, saying there was no rule allowing the change.

Baer and MeritCare attorney Jane Voglewede next argued about what should be allowed in opening statements.

Baer wanted some latitude in describing circumcision. Voglewede said Baer should stick to the specific informed consent case involving Flatt's son.

"(Baer) has made it clear he will go into explicit detail about circumcision," Voglewede told Rothe-Seeger.

But the court, Voglewede argued, has already determined the procedure is not the issue in the case, and therefore it has no relevance to the jury.

Rothe-Seeger told Baer the lawyer's freedom in opening statements would be limited to how circumcision it applied to the case.

"This is not going to be a class or instruction on circumcision," she said.

Before dismissing the jury, Rothe-Seeger asked for their continued patience.

"We need to do some more work before we can proceed with the trial," Rothe- Seeger told the jury of six women and four men.

Later she told them, "This doesn't work like a movie … where everything gets done in 60 minutes."

The trial opened Monday but attorneys didn't pick a jury until noon Tuesday.

"She is going to allow me to describe the process of circumcision as far as it relates to the duty of the doctor to disclose the procedure to obtain informed consent," Baer said of Rothe-Seeger after the trial recessed for the day.

He expected the legal battles between himself and Voglewede to continue.

"I foresee a litany of objections," he said. "That's one of the rules of the game. I play by the rules, but I have an obligation to my client to represent the claim she has presented."

MeritCare officials left the courtroom without comment.

The trial is expected to last two weeks.

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

(File prepared 20 January 2003)