THE FORUM, Fargo, North Dakota, 9 July 2003.

Judge hears circumcision trial request

By Dave Forster
The Forum - 07/09/2003

The attorney who failed to prove negligence in last winter's high-profile MeritCare circumcision case has asked for a new trial.

Zenas Baer of Hawley said excluded evidence and improper jury instructions ruined his chances for success.

A Cass County District Court jury in February ruled Dr. Sunita Kantak was not negligent in explaining the risks of circumcision to Anita Flatt for her newborn son, Josiah.

But those jurors, culled from a society largely ignorant of the surgery, weren't allowed to see circumcision videos or tools, putting the plaintiffs at an unfair disadvantage, Baer said Tuesday.

I was stuck trying to educate the jury through a freehand drawing, he said.

The hindrance was one of several Baer pointed out to East Central District Judge Cynthia Rothe-Seeger during an hour-long presentation. Among other complaints, Baer cited jury instruction he called misleading, inaccurate and prejudicial.

In one instance, Baer said, experts from both sides agreed that for an elective procedure such as circumcision, all risks, no matter how small, should be disclosed to the patient or the patient's guardian.

Despite this agreement, he said, Rothe-Seeger instructed the jury in terms of a medical procedure, for which a doctor must inform a patient only of serious and likely risks.

Those are diametrically opposed concepts, Baer said.

In her response, MeritCare attorney Angela Lord said Baer's excluded evidence was irrelevant to the case.

The question at trial was whether or not Kantak sufficiently informed Flatt of the procedure, Lord said, not the legitimacy of circumcision.

During her closing argument in the February trial, MeritCare attorney Jane Voglewede said Flatt acknowledged talking to Kantak before the procedure, reading the informed-consent sheet and signing the sheet.

On Tuesday Lord said Flatt, who was not at the hearing, was responsible after her March 1997 birth for asking Kantak to clarify any confusion she had about the surgery.

There was simply no error or irregularity in this trial, she told Rothe- Seeger.

Lord also disputed Baer's version of how the experts agreed about the informed consent procedure for circumcision.

Thats simply inaccurate, she said.

Baer, an attorney for 23 years, got involved in circumcision cases in the mid- 90s when he filed an unsuccessful suit in federal court.

He has accused hospitals of perpetuating the surgery, which he says has no medical benefits, by not fully informing parents about the procedure.

Rothe-Seeger took his motion for a new trial under consideration and will issue her decision in writing.

If the motion fails, Baer likely will appeal the decision to the state Supreme Court, he said.

Readers can reach Forum reporter Dave Forster at (701) 241-5538

(File prepared 11 July 2003)