THE FORUM, Fargo, North Dakota,
Saturday, 15 February 2003.

Doctor in circumcision case not negligent

By Jeff Baird

The Forum - 02/15/2003

A Fargo doctor accused in civil court of not detailing to parents the risks of their son's circumcision was found not negligent Friday night.

The Cass County jury of six women and three men returned their verdict after less than two hours of deliberation.

The case was seen by some as a landmark medical issue that could determine what hospitals must disclose to parents about infant circumcision.

The jury's decision came after more than seven hours of witness testimony and closing arguments Friday in East Central District Judge Cynthia Rothe-Seeger's courtroom.

Attorney Zenas Baer asked the jury to consider what a reasonable parent would want to know about circumcision before consenting to the procedure. "All risks must be disclosed," he said.

Not so, defense attorney Jane Voglewede said during her closing argument.

Then, reading from North Dakota law, she said a doctor has no duty to talk about health risks so rare they are considered negligible.

Anita Flatt of Hawley, Minn., sued Dr. Sunita Kantak and MeritCare Hospital 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.

Flatt says she never received the booklet MeritCare gives to parents, and only talked to Kantak briefly about the pain involved before the procedure was performed.

Had Flatt understood the risks of the procedure - which include death - she wouldn't have had it done, Baer said.

Rothe-Seeger Thursday dismissed MeritCare from the lawsuit, saying Baer's witnesses failed to prove the hospital was responsible for obtaining informed consent.

Kantak, who said she has no memory of the March 1997 birth because it was routine, says she did discuss appropriate benefits and risks - such as infection and bleeding - and that it is documented in MeritCare records.

MeritCare nurses and doctors also testified that while they cannot recall Flatt's stay, it's Kantak's procedure to give thorough talks about the risks and benefits of circumcision.

Baer, who gave his closing argument in the form of a PowerPoint presentation, repeatedly told the jury only Flatt can recall the day her son was born and the day of his circumcision.

"Anita lived through those facts," he said.

Baer said the MeritCare medical records contained inaccuracies and nurse and doctor testimony inconsistencies.

"Sometimes witnesses try to help a party," he said. "When you evaluate the testimony, think about those instances in which they said something under oath that was not quite accurate."

Baer compared circumcision to "the branding of cattle" and said if hospitals provided more information about the foreskin "there would be a lot less cutting of our baby boys at one day of age."

Voglewede had a much different interpretation.

"This is not a complicated case," she said.

It is about a young couple that testified to making their decision about circumcision before they came to the hospital, Voglewede said.

She said Flatt acknowledges talking to Kantak before the procedure, reading the informed-consent sheet and signing the sheet.

Voglewede said the sheet might not explain the procedure but it does confirm the parent wanted the doctor to perform the circumcision.

She said "records are made because people can't remember," and the story that they tell is pretty straightforward - a circumcision was consented to after the risks and benefits were explained.

Voglewede said Baer's own expert witness testified that nothing was wrong with the circumcision performed and, after reviewing medical records, said any damages would be hard to prove in court.

"Think about how hard he must have looked," she said.

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

(File prepared 15 February 2003)