The Case of Flatt vs Kantak

Even though it was lost, this case is important in raising the human rights issues around circumcision, because consent was given. The point at issue was whether Ms Flatt was sufficiently informed about the nature and effects of circumcision when she gave consent seven years ago. The jury, unaccountably, ruled that she was: the doctor was required to tell her virtually nothing - she was expected to inform herself by asking appropriate questions about something she knew nothing about. (Counsel for Flatt was severely restricted in what he could tell the jury about circumcision.) Ms Flatt plans to appeal.


Earlier stories:
December 1999: Case first raised
July 29, 2002: Motion to strike out quashed
January 23, 2003: New York Times article

Jan 23, 2003: Case for, against videos argued
Jan 25, 2003: Videos, animations, banned
Feb 4, 2003: Jurors quizzed
Feb 5, 2003: Appeal against no-video ruling
Feb 6, 2003: Circumcision evidence
Feb 7, 2003: Doctors cross-examined, mother's evidence
Feb 8, 2003: Mother cross-examined
Feb 11, 2003: Doctor testifies Kantak's care adequate
Feb 12, 2003: Attorneys debate, question nurses
Feb 15, 2003: Doctor found "not negligent"

Feb 22, 2003: Fight doesn't scare Baer

July 9, 2003: Judge hears circumcision trial request
May 12, 2004: Lawyer says parents not briefed on risks of circumcising infant

Other coverage of the trial is at


The Fargo Forum

Video at issue in court hearing

By Jeff Baird
  The Forum (Fargo, ND) - 23 January 2003

A judge will rule Friday on the type of information a jury will be allowed to see in a case that could decide what hospitals must tell parents before circumcising boys.

Anita Flatt of Hawley, Minn., is suing Dr. Sunita Kantak, Fargo-based MeritCare Medical Center and the state of North Dakota in East Central 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 signed a circumcision consent form, but hospital staff didn't describe the benefits or risks of the procedure, the lawsuit says.

Attorneys for Flatt and MeritCare spent much of a Wednesday pretrial hearing arguing if a jury should be shown videos of circumcision as well as the tools used in the procedure.

Hawley attorney Zenas Baer, who represents the Flatts, told Judge Cynthia Rothe-Seeger the video and tools are necessary to show the cruelty of circumcision.

Had his client known the procedure was so brutal ­ and provides no medical benefit ­ she would never have agreed to it, he said.

"(Anita) didn't know what was going to be done," Baer told Rothe-Seeger. "She had no idea there was a risk of death connected to circumcision."

MeritCare attorney Jane Voglewede said the case boils down to whether Flatt was informed about circumcision ­ not how the procedure is done. MeritCare believes Flatt was provided adequate information, she said.

Voglewede argued the video footage of circumcision could only "inflame the jury."

[And doesn't that tell you something!]

Rothe-Seeger asked Baer if he could adequately make his points using expert testimony without showing video of the procedure.

"A picture is worth a thousand words," Baer replied.

He said in order to make an informed decision about circumcision, people need to know exactly what is done.

"This is about him (the Flatt's boy) and what happened to him," Rothe-Seeger replied. "This is not about whether the people of this county should be circumcised."

Another issue debated Wednesday was MeritCare's role in the lawsuit.

Angela Lord, another MeritCare attorney, argued the medical center is not a legal entity and therefore can't be sued. The name is merely a trademark, not a facility, Lord said.

She argued it would be futile to allow Baer to amend the complaint to include MeritCare Hospital, because the hospital is not responsible for securing circumcision consent ­ the doctor is. Lord said Kantak is an employee of MeritCare Medical Group, not the hospital.

Baer argued the hospital is not an "innocent bystander." It provides the room, tools and nurses, among other things.

"Dr. Kantak does not get informed consent alone," Baer said following the hearing. "She relies on the publications of the hospital, which the nurses distribute."

And the nurses also talk with the patient about circumcision to the extent they are able, he said.

In this instance, the nurses' information was more important because Flatt claims she never got a booklet on circumcision, Baer said.

Rothe-Seeger decided Wednesday she would not divide liability and damage claims, as she previously considered.

She said she would issue a written opinion on the other issues Friday.

If Rothe-Seeger does not allow the video, Baer said he will go into "excruciating" verbal detail.

"I will try to give the jury as much detail as I can on how the skin is crushed," Baer said after the hearing. "And all for no reason."

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


Judge won't allow images

By Jeff Baird
The Forum - 25 January 2003

A judge ruled Friday graphic images of babies being circumcised will not be allowed in a trial that could determine what hospitals have to tell parents about the procedure.

The issue was the focus of intense debate at a Wednesday pretrial hearing.

"MeritCare is very pleased that the court has recognized that this case is about informed consent and not about whether male circumcision should be allowed," Merit-Care spokeswoman Carrie Johnson said in response to East Central District Court Judge Cynthia Rothe-Seeger's written judgment. "The decisions that Judge Rothe-Seeger made regarding the type of information the jury will be allowed to see and hear center around this fact."

Anita Flatt of Hawley, Minn., is suing Dr. Sunita Kantak

Defense Attorney Zenas Baer had argued at length Wednesday that showing the videos and tools used in circumcision were a critical part of informed consent.

He said the Flatts wouldn't have agreed to the procedure had they known what it entailed.

Rothe-Seeger said Friday the videos differ from Kantak's procedure "in ways that relate to making the child comfortable for the surgery and ensuring that there is no pain.

To allow them could confuse or mislead the jury, she said.

Baer said the decision will most likely add to the length of the trial as he goes into "excruciating" details using words and sketches.

"Everyone knows that a photograph is worth a 1,000 words," he said. "It is very difficult to convey what a baby goes through just using words. We will do our best to describe the pain, the agony, the cutting, the crushing and removal of the healthy foreskin."    

Rothe-Seeger did allow Baer to amend his lawsuit to include MeritCare Hospital.

The original lawsuit names MeritCare Medical Center as a defendant. The medical center, however, is only the name of a building complex, not a legal entity.

MeritCare lawyers argued Wednesday against amending the complaint because MeritCare Hospital is not responsible for providing informed consent.

It's the doctor's responsibility, and Kantak is employed by MeritCare Medical Group.

But Rothe-Seeger allowed the change on a technicality. The person who was served with the lawsuit represents both the hospital and MeritCare Medical Group, she said.

The other minor victory for Baer was Rothe-Seeger's decision to consider Anita Flatt's personal notes.

MeritCare alleges that it is routine practice to give parents a pamphlet on circumcision.

But Anita Flatt claims she never received a booklet from the hospital on circumcision.

If she had, she would have kept it because she kept such precise notes and records on every other aspect of the birth.

"Since hospital documents and Anita's handwritten notes go to the issue of what information Anita received," Rothe-Seeger wrote.

Both parties were optimistic Friday about the start of Monday's trial.

"We continue to believe that Anita Flatt's lawsuit against us is defensible and without merit and are fully prepared to defend both Dr. Sunita Kantak and MeritCare Hospital," Johnson said.

Baer said while the judgment was not ideal he will move forward.

"We will have to rely on the good sensibility of reasonable people from Cass County," he said.


Zenas Baer's brief in reply


Fargo Forum

Potential jurors quizzed in circumcision case

By Jeff Baird
The Forum - 4 February 2003

Potential jurors in a trial that could determine what hospitals must disclose about infant circumcision were quizzed Monday about the procedure.

Attorney Zenas Baer asked jury candidates to raise their hand if they consented to have their infant circumcised.

Of the 18 potential jurors, 12 responded.

Each of those candidates were then asked by Baer about the experience: How did they come to the conclusion to have their son circumcised? Did the doctor or nurse tell them about the procedure? Did the doctor give a medical reason for circumcision? Did they know the risks of circumcision?

And finally, "Is there anything about the subject matter that would make you squeamish?"

"No," a middle-aged woman responded. "It's 2003."

Anita Flatt of Hawley, Minn., is suing Dr. Sunita Kantak

The trial opened Monday in Cass County District Court before Judge Cynthia Rothe-Seeger.

Flatt, now an attorney in Baer's law firm, and Kantak were present in the courtroom.

Most of the potential jurors told Baer the decision to circumcise their infant was made jointly with their spouse.

But one elderly woman said her son was circumcised because that's what was done to infant boys in her day.

"I'm from the old school," she said.

Another admitted she did it in part because of "locker room syndrome," or because she didn't want her son to be different from other boys.

"What I am getting at is most of these folks made the decision (to circumcise) without any information or very little information," Baer said after the trial recessed for the day.

Also, those who consented to the procedure could possibly interpret the lawsuit as a slam on their decision to circumcise, he said.

"Nobody wants to believe they did something to harm their newborn infant," he said.

Another of Baer's major points involved frivolous lawsuits.

Baer asked candidates whether they would feel pressure to rule a certain way because of the uniqueness of the case.

While most jurors indicated they felt there was too much litigation in America today, they said they could listen to the facts of the case without bias.

"One thing that is important to note is that most of the people that talk about frivolous lawsuits don't know the facts," Baer said after the hearing.

Baer said he will conclude his questioning of jury candidates today. The defense will then have an opportunity ask jurors questions.

Of the 18 candidates, eight will be dismissed. One person will be kept on as an alternate.

Baer expects opening statements to begin today. The trial is expected to last two weeks.

MeritCare officials left the courtroom without commenting.

"What has come through is most of the people that made the decision made it with very incomplete information," Baer said. "They made a decision that permanently altered their son's genitals, and they are thinking about that – and that is the best we can do."


The Forum
Fargo ND - 5 February 2003

Circumcision case hung up

By Jeff Baird

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

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.


The Forum, Fargo, ND
- 6 February 2003

Circumcision trial continues after ruling bars photos, videos

By Jeff Baird

Attorney Zenas Baer had unsuccessfully requested the jury hearing his client's case be shown video and photos of circumcision. He said the pictures were worth a thousand words.

So, Wednesday, Baer used all 1,000 words and more as he had one of his witnesses describe every detail of the circumcision process.

East Central District Court Judge Cynthia Rothe-Seeger has ruled Baer can't use videos of circumcision, tools used in the procedure and pictures of uncircumcised penises in his client's case against MeritCare Hospital and one of its doctors because they are not relevant to the lawsuit.

Rothe-Seeger also ruled Wednesday Baer's expert witness, Dr. Christopher Cold of Marshfield, Wis., couldn't use a slide presentation that shows the anatomy of a penis.

So, using a magic marker to draw pictures, Cold and Baer launched into nearly three hours of testimony describing penile anatomy, circumcision and the tools involved to do it.

"It may be uncomfortable to look at these areas, but it is something that is important to know," Cold told the jury at the start of his testimony.

Anita Flatt of Hawley, Minn., is suing Dr. Sunita Kantak

Cold, an anatomic pathologist, talked Wednesday about how circumcision has become an engrained part of American culture though it serves no necessary medical purpose.

He told the jury circumcision is lucrative for hospitals because it is a relatively minor procedure.

He also said because the foreskin contains many nerves, its removal is painful, even with anesthetic, and the effects of diminished sexual sensation will last throughout the child's life.

Baer will bring Cold to the stand again today.

Attorneys spent Wednesday morning presenting their opening statements to the jury.

Baer told the jury that just because Flatt signed a consent form doesn't mean the hospital and doctor fulfilled their duty of informing Flatt of the risks and benefits involved in circumcision.

He said the defense will rely on MeritCare's records and procedure to prove they did nothing wrong.

He then laid out examples of record and procedure omissions.

Baer also said his client was not given a required booklet on circumcision and only met with Dr. Kantak briefly before the procedure.

MeritCare attorney Jane Voglewede said the case is about a husband and wife that decided to have their son circumcised, and a hospital that respected their wishes.

She told the jury there is no expert testimony that shows anything went wrong with the procedure – a claim Flatt contests – and that all required steps were taken in informing the Flatt's.

"(Anita) is a lawyer," Voglewede told the jury of six women and four men. "She was a lawyer at that time, and she understood what a consent form was."

She told the jury to pay attention to the qualifications of the plaintiff's witnesses "or the lack of."

None of them are qualified to perform circumcisions, she said.

Voglewede ended her opening statement by saying Flatt's son was born a healthy baby and still is a healthy boy.

The trial, which opened Monday, is expected to last two weeks.

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


The Forum
- 7 February 2003

Mother says she didn't know about risks

By Jeff Baird

When Anita Flatt gave birth to her son at MeritCare Hospital five years ago, she hadn’t slept all day.

There were complications.

Her water wouldn’t break and had to be pierced manually. She was put on pain medication, but it wasn’t helping.

Then, with her doctor out of the room, she screamed. Nurses rushed in and delivered her son.

Later on March 6, 1997, Flatt signed a consent form to have her son circumcised, she told a jury Thursday in Cass County District Court.

Flatt of Hawley, Minn., is suing Dr. Sunita Kantak

Flatt told the jury Thursday she had not received any information prior to her son’s birth about the risks and benefits of circumcision.

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

Had Flatt understood the risks involved in the procedure, she wouldn’t have had it done, she said.

Attorney Zenas Baer started his examination by asking Flatt why she had filed the lawsuit.

“He was subjected to an unnecessary surgery and he was harmed and he has an injury,” Flatt, an attorney at Baer’s law firm, told the jury.

That injury, she claims, is the loss of a healthy and functional foreskin.

The trial, which enters day five today, recessed with Baer still examining Flatt.

Most of the focus Thursday was on the plaintiff’s other two witnesses, Drs. Christopher Cold of Marshfield, Wis., and Robert Van Howe of Marquette, Mich.

After three days of listening to them speak on the benefits of foreskin and barbarity of circumcision, defense attorneys Jane Voglewede and Angela Lord got their chance to cross-examine.

Both men admitted they are morally against infant circumcision, are not licensed to perform circumcision, aren’t involved in getting patient informed consent for circumcision and have financially supported anti-circumcision groups.

The exchanges between witnesses and defense attorneys were at times sharp.

When Cold, whose answers to Baer’s questions at times resembled classroom lectures, tried to answer a yes-no question with another question, Lord cut him short.

“I’ll ask the questions,” she said.

Voglewede showed the jury a letter Baer had written to Van Howe in 1998.

It included the medical records of Flatt’s child and asked if he thought there was the potential for a lawsuit.

In his response, Van Howe said he thought it would be very “difficult to demonstrate that (Flatt’s son) has been harmed in any way.”

Baer later said the letter did not specifically address the informed consent issue.

Flatt is asking for an unspecified amount in damages.

MeritCare officials left the courtroom without comment.

The trial is expected to conclude next week. East Central District Court Judge Cynthia Rothe-Seeger is presiding over the case.

“They are trying to portray it as a cabal that is opposed to circumcision,” Baer said following the trial. “All we are trying to do is to protect those who cannot protect themselves, to keep them intact so they are not abused in a ritualistic way.”


The Forum (Fargo, ND)
- February 8 2003

Attorney cross-examines Flatt

By Jeff Baird

After spending the greater part of four days listening, MeritCare attorneys took to the offensive Friday in the circumcision lawsuit against the hospital.

Jane Voglewede asked Anita Flatt if she remembered signing the consent form to have her child circumcised March 6, 1997.

"Yes," Flatt replied.

She asked Flatt whether she was "mentally clear" when she read it.

She was.

Voglewede then asked if she remembered reading the following line:

"My doctor, dentist, or podiatrist has explained the nature and purpose of the surgery or procedure(s), other methods or treatment, risk involved and the possibility of complications; I understand these risks and options available to me. I understand there is no guarantee as to the results that may be obtained."

Flatt said she had.

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

She has told the jury she did not receive any information prior to her son's birth about the risks and benefits of circumcision.

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

Had Flatt understood the risks involved in the procedure, she wouldn't have had it done, she said.

MeritCare nurses and doctors haven't had the chance to testify on whether they recall giving the information to Flatt.

Voglewede also asked Flatt about her conversation with Kantak on March 7, the day of the circumcision.

She asked Flatt if Kantak had "pushed" her to have the procedure done.

She hadn't, Flatt said.

Flatt asked Kantak about the pain involved during the procedure and was told an anesthetic would be applied. The conversation ended shortly after.

"At the time you felt all the questions you had were answered?" Voglewede asked.

"Yes," Flatt responded.

Voglewede asked Flatt if there is any expert testimony to indicate something is wrong with her son's penis.

Flatt explained that her son has been diagnosed with an "asymmetrical circumcision," which essentially means one side of the penis head has more skin than the other.

Flatt was concerned whether the diagnosis would cause complications with his sexual function, fertility and urination.

But medical experts have stated that is not a concern, the jury was told Friday.

Experts also said there is a good chance the asymmetry would be unnoticeable by the time Flatt's son hits puberty.

During attorney Zenas Baer's examination of Flatt, he asked his client to describe what she thought circumcision was at the time of her son's birth.

"You just cut around," she said. "I knew the term meant cut around."

Flatt, an attorney at Baer's law firm, said she was told by the nurse, "it was a really quick procedure."

She told Baer she tried to ask the nurse questions about the procedure on March 6, but was told she would have to wait to ask the doctor in the morning.

Jurors saw more than an hour worth of Flatt's home video tape of the birth.

It showed the commotion of people visiting the baby much of March 6 and March 7.

"What I think is the key to that video is that she has documented actual visual footage of the proceeding of what went on March 6," Baer said following the trial's adjournment for the day. "None of that included a visit with Doctor Kantak."

Jurors also Friday were read the written deposition of James Flatt, who died since the lawsuit was filed.

He said he was horrified the first time he saw his son's penis after the circumcision and described it as a bloody stump.

When asked what he would have liked to have been told before the procedure, he said "that he could die from it."

Flatt is asking for an unspecified amount in damages.

MeritCare officials left the courtroom without comment.

The trial is expected to end next week. East Central District Judge Cynthia Rothe-Seeger is presiding over the case.


The Forum (Fargo ND)
- February 11 2003

Doctor testifies Kantak's care adequate

By Jeff Baird

A policy-maker for the premier standard-setting organization on infant circumcision in America testified Monday that the care given to Anita Flatt "met or even exceeded" the norm.

Dr. George Kaplan, one of six doctors from across the country selected to review infant circumcision for the American Academy of Pediatrics, told jurors he came to his conclusion after reviewing medical records and from depositions from people that cared for the child.

"I feel (Dr. Sunita Kantak) did inform Mrs. Flatt on what was to be done," said Kaplan, the chief of urology and surgery at the Children's Hospital in San Diego.

Flatt of Hawley, Minn., is suing ...

Flatt attorney, Zenas Baer, asked Kaplan if he made assumptions in determining adequate information was given to Flatt.

"In part, yes," Kaplan said.

Baer then asked if one of those assumptions was that MeritCare employees followed procedure by giving Flatt the circumcision booklet and talking to her about the procedure.

Kaplan said yes, pointing to two references in MeritCare medical records documenting discussions with or material given to Flatt on circumcision and noted that Flatt signed the consent form.

He said most parents don't sign the consent slip if they still have questions about the procedure.

Baer showed Kaplan that one of the medical records documenting discussion on circumcision was dated a day after the surgery.

The other record documenting circumcision discussion was signed by Kantak the day before the March 7, 1997, circumcision, but not initialed by Flatt, Baer said.

Flatt said she didn't meet with Kantak until March 7.

When Baer asked Kaplan what the foreskin was for, he said that is not known.

"Yet you remove it?" Baer said.

The American Academy of Pediatrics concluded in 1999 there are some potential medical benefits to circumcision but not enough to recommend routine newborn circumcision.

The academy encourages parents to discuss the benefits and risks of circumcision with their pediatrician, and then make an informed decision about what is in the best interest of the child, Kaplan said.

Circumcision benefits include a lower rate of urinary infections and cases of penile cancer, Kaplan said.

The major risks in circumcision include infection, most of which are treatable with antibiotics, and bleeding, Kaplan said.

MeritCare attorneys were allowed to call Kaplan before Baer was done calling his witnesses because of a conflict in Kaplan's schedule.

Baer will resume examining one of his witnesses today.


The trial, in its sixth day, is expected to end this week.



The Forum (Fargo, ND) February 12 2003

Attorneys debate, question nurses in circumcision trial

By Jeff Baird

Attorneys sparred Tuesday over details in MeritCare Hospital's medical records, disagreeing on if they proved Anita Flatt received adequate information before her son's circumcision.

Five MeritCare nurses testified in Cass County District Court that while they don't remember Flatt's stay at the hospital in March 1997, records indicate it was uneventful and that the proper discussions on circumcision took place.

Flatt attorney Zenas Baer, however, pointed to several spots where the records didn't accurately reflect what happened between March 5, the day Flatt was admitted to the hospital, and March 8, the day she was discharged.

When East Central District Judge Cynthia Rothe-Seeger asked where he was going with his line of questioning, Baer said he was trying to prove to jurors they can't rely on records alone in determining what happened with the circumcision.

Flatt, of Hawley, Minn., is suing Dr. Sunita Kantak ...

MeritCare nurse Rita Frovarp told jurors she has watched Kantak explain the risks and benefits of circumcision to parents more than 200 times. She said Kantak's discussion is thorough, and she has even talked parents out of having their child circumcised.

Nursing records don't show any visits between Kantak and Flatt on March 6 and 7, Baer said. Dr. Kantak performed the circumcision about 10:45 a.m. March 7, Baer said. But nursing records don't document Kantak being at the hospital until 11 a.m., he said.

The records, Baer told the six women and four men on the jury, also don't show Flatt received an epidural at MeritCare, which she did.

In cross examination, MeritCare attorneys said newborn nursery records show Kantak was in the nursery March 6, the day Flatt's child was born.

Also, a note Kantak made in Flatt's son's medical record indicates she did discuss circumcision with Flatt.


The Forum - February 13 2003

Woman who performed circumcision testifies

By Jeff Baird

Attorney Zenas Baer questioned Dr. Sunita Kantak Wednesday about what the doctor discloses to parents about circumcision.

Baer asked Kantak if she agreed with the American Academy of Pediatrics' method of obtaining informed consent in which all known risks are disclosed to parents.

Kantak said she did.

Baer then listed several potential, albeit rare, circumcision complications, stopping after each one to ask Kantak if she mentioned it to parents.

Kantak didn't mention many of the specific risks on Baer's list, including inclusion cists, concealed penis and skin bridges, because, she said, they wouldn't mean anything to most parents.

Kantak said she talks about the risk of bleeding, infection and trauma.

If the parents have more concerns, she talks about specific risks, including those on Baer's list, she said.

"If they want to know more, I tell them," Kantak said.

Anita Flatt of Hawley, Minn., is suing Kantak ...

Baer, who will continue questioning Kantak today, spent much of the afternoon requesting the doctor give a detailed description of how a circumcision is performed.

He used words like ripping, tearing, crushing and cutting when questioning Kantak.

Kantak said the procedure involves removing the foreskin from the penis.

"I don't know whether I would call it, 'Crush,'" Kantak replied. "You can."

Baer also tried to establish that, even with an anesthetic, the infant experiences pain.

Kantak, who estimated she has performed more than 400 circumcisions, said while the anesthetic won't eliminate 100 percent of the infant's pain, it works well, and most of the time the babies are quiet during the procedure.

An eyewitness at the trial comments:

The doctor who did the circumcision testified under oath that in more than 15 years of practice, having performed 400+ circumcisions, having seen other circumcisions, she had NEVER seen a baby scream during the procedure. She was asked if she had ever heard a baby scream when she did a circumcision before the days of a dorsal penile nerve block, she reiterated that she had NEVER seen a baby scream, ever. She said she would not do circumcisions if the babies screamed.

All of the nurses who testified said that they have never heard a baby scream. One nurse finally admitted that some babies "wail" but not scream. She could not tell the court what the difference between a "wail" and a scream is. Another nurse said that some babies cry (NOT scream), but she doesn't know why they cry, i.e.. they could be cold, hungry, burping, etc.

Earlier in the day, Dr. Craig Shoemaker, lead pediatrician for MeritCare when Flatt had her child circumcised in 1997, told jurors he felt the care Kantak provided met American Academy of Pediatrics standards.

He said he came to that conclusion by reviewing medical records.

During cross examination, Baer asked Shoemaker if he was making assumptions in coming to his conclusion.

Shoemaker, one of six doctors appointed to review circumcision for the American Academy of Pediatrics in 1997 and now at the University of California, Davis, said he assumed what was documented in the medical records was done.

He also said Kantak was known for providing parents thorough discussions about circumcision while he was at MeritCare.

Shoemaker is a witness for the defense. Because of a scheduling conflict, he was allowed to testify before the plaintiffs finished calling their witnesses.

Flatt, an attorney at Baer's law firm, is asking for an unspecified amount in damages.


The Forum (Fargo, ND) - February 15 2003

Doctor in circumcision case not negligent

By Jeff Baird

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...

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,...

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.


The Forum - February 22 2003

Fight doesn't scare Baer: Circumcision battle latest for 'crusader of underdog'

By Jeff Baird

Zenas Baer spent 500 hours, or about $75,000 in billable time, working on the circumcision lawsuit against Fargo's MeritCare Hospital and one of its doctors.

And, as he prepares to ask for a retrial of the suit, which ended Feb. 14, it's a tab that is going to grow.

So why circumcision? Why, of all the causes for Baer to take up, has he taken such a passionate interest in the most common medical procedure in the nation?

Publicity? Money? A bad circumcision experience?

None of the above, the Hawley, Minn., attorney said.

This issue is personal for Baer. He likens the struggle to stop infant circumcision to the civil rights battles of the 1960s, in that he is fighting against a mindset that is so engrained most people refuse to question its purpose.

"If people want to criticize this as grandstanding or making my mark, they can," the 51-year-old said. "But I'm not going to apologize for looking out for the best interest of 1-day-old babies."

People who know Baer best - know where he came from and where he has been - aren't at all surprised by his persistence.

"He is not one to shy away from something because it may be a difficult obstacle to overcome," said Amon Baer, one of Zenas' 10 brothers. "He also enjoys the challenge of breaking new legal ground."

Baer, who also has four sisters, spent the first seven years of his life in a Hutterite community near Grand Forks, N.D.

In 1958, his parents moved to Americus, Ga., to a commune that stressed racial integration.

"Whites and blacks were encouraged to work together as equals," Baer said.

It was a philosophy that wasn't widely embraced in the South at that time. The "colony" was shot at and firebombed in the year the family lived there.

Americus was also Baer's first experience at a public school.

He remembers riding on a bus with kids that didn't belong to the commune. He was bombarded with racial epithets.

"As an 8 year old, I didn't know what was going on," Baer said.

The family moved to another commune in Pennsylvania in 1959, an experience Baer calls the most bizarre of his childhood.

The group purported "following in the footsteps of Christ." The reality, however, was much different, Baer said.

"The whole purpose was to make you a sheep of the community," he said.

As their parents worked, the kids sat quietly in a large room with only molding clay to play with.

An adult watched to ensure silence.

The Baer's were kicked out of the commune for challenging the group's authority after his dad asked why the leaders weren't more involved in work chores.

"Within a weeks the leaders came to him and said they didn't think the 'spirit of God' was moving him in the right direction," Baer said.

The family of 15 was given $300, a station wagon and told to leave.

The Baer's returned to Grand Forks, greatly shaken by their experience.

"My mother and father never formally joined any church after Pennsylvania," Baer said.

Baer's dad took odd jobs before he borrowed enough money to buy a farm near Hawley and eventually started a successful chicken egg farm.

Baer graduated from Lake Park High School in 1969, as Vietnam raged.

He was allowed to sit out the war as a conscientious objector, working instead for three years at a Minneapolis hospital.

At night he went to school at the University of Minnesota where he graduated in 1976 with degrees in German literature and political science.

He entered law school hoping to pursue a career in politics, but later determined he could do more good in law.

In his 23 years as an attorney, Baer has never shied away from controversial court cases.

He has sued cities, counties, two states and the U.S. government.

He has been involved in murder trials, police brutality lawsuits and was recently hired by parents in the Barnesville School District to sue the school board for illegal meetings.

His case selection has earned him a reputation as a crusader for the underdog, and at times has put him at odds with another of his clients - the City of Hawley, longtime Hawley City Councilman John Young Jr., said.

"Although there where times it wasn't always the most comfortable for us, we came to the understanding that was his niche," Young said.

Baer became involved with circumcision in 1995.

In the case a mother and father were divided on whether their son should be circumcised, Baer said. The doctor circumcised the child.

At first, Baer, who is circumcised, thought "what's the big deal."

Then he began researching infant circumcision and concluded it is a procedure in which the medical risks greatly outweigh the benefits and is only perpetuated by the medical field because it is profitable.

At the same time, the North Dakota Legislature had just passed a law that made female circumcision illegal.

"When I became a lawyer, I had to take an oath I will uphold and defend the Constitution of the United States of America and Minnesota and North Dakota," Baer said. "I can't look the other way when I see constitutional violations just like those in the 1960s civil rights movement didn't. There were principled individuals who said this is wrong and society must change."

Baer brought the case forward, but a federal judge ruled it had no standing.

His latest circumcision lawsuit pitted Anita Flatt of Hawley against Fargo-based MeritCare Hospital and Dr. Sunita Kantak.

Flatt, an attorney at Baer's law firm, signed a circumcision consent form but claimed she and husband, James, weren't told complete and accurate information about removing the foreskin from their son's penis.

It took a Cass County jury about two hours to wade through two weeks of testimony and find Kantak's care not negligent.

East Central District Court Judge Cynthia Rothe-Seeger dismissed MeritCare from the lawsuit.

Baer said he will ask Rothe-Seeger for a retrial based on her decisions not to allow him to show the jury videos showing circumcision, tools used in the procedure and pictures of an uncircumcised penis.

If the retrial is not allowed, Baer said he will appeal to the North Dakota Supreme Court.

He has the support of his family.

"To me it is not quirky at all," said Baer's wife Julia. "It is something that I think is a very appropriate subject to bring up."

She said if parents knew more about the procedure, fewer people would have their children circumcised.

But hospitals aren't anxious to provide that information, said Dr. Christopher Cold, one of two expert witnesses to testify for Baer in the Flatt lawsuit.

"This is a $250 million a year industry," he said. "He is trying to expose that as a less than ethical endeavor."


Fargo Forum
July 9, 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.

“That’s 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


Grand Forks Herald - May 12 2004

Lawyer says parents not briefed on risks of circumcising infant


Associated Press

The parents of a newborn boy were not adequately informed of the risks of having their child circumcised before the procedure was done, their lawyer argued in the North Dakota Supreme Court.

Zenas Baer, a Hawley, Minn., attorney who is representing the boy, argued Wednesday that male circumcision is unnecessary in almost any case.

The youngster, who is now 7, was "surgically diminished without medical diagnosis, not for the purpose of curing a disease, and it was not for medical treatment," Baer said. "The integrity of genital tissue is a constitutionally protected right."

Baer is representing the boy, Josiah Flatt, who was born in March 1997, and the child's mother, Anita Flatt of Hawley. Josiah's father, James, died in a traffic accident three years ago.

Anita Flatt signed a consent form before the circumcision was performed. Angela Lord, an attorney for Fargo's MeritCare Hospital and Dr. Sunita Kantak, who circumcised the child, said Flatt was told about circumcision risks that may have affected the child's health.

The dispute went to trial in February 2003. East Central District Judge Cynthia Rothe-Seeger dismissed the hospital from the case before it went to the jury. After less than two hours of deliberations, the jury concluded Kantak was not negligent, and Rothe-Seeger later ordered Flatt to pay $58,506 in defense costs.

In court filings, Baer is asking the Supreme Court to order a new trial. Anita Flatt does not argue the circumcision was botched, but says she should have been fully briefed about the procedure's benefits and consequences.

Circumcision involves removing sensitive skin from the penis. The American Academy of Pediatrics says most complications from the procedure, such as bleeding, are minor, and that circumcision reduces the risk of urinary tract infections.

However, the procedure's benefits do not justify routine circumcisions of newborns, the physicians' group said in a policy statement.

During Supreme Court arguments Wednesday, Baer and Lord argued about whether Anita Flatt had been given enough information about circumcision risks before she signed the consent form.

Baer argued that the parents should have been informed about any risk, no matter how remote. Lord contended that doctors should only be required to disclose "material risks," or those more likely to affect a patient's health.

Justice Dale Sandstrom wondered if a doctor should have to disclose any risk that could cause a reasonable patient to reconsider. Chief Justice Gerald VandeWalle suggested that the listing of potential risks should be expansive.

"Who knows what will cause an individual to change their mind," VandeWalle said.

Lord replied that the disclosure standard "is one of reasonableness and prudence, and it's not reasonable that every conceivable risk of any procedure could be told to every patient."

Baer said two doctors testifying on the Flatts' behalf were prevented from giving important testimony, and that Rothe-Seeger erroneously excluded other evidence, including a videotape that depicted circumcision procedures and instruments used in performing circumcisions.

Lord said experts for both sides had been allowed to testify in detail about circumcision risks.

"Our experts didn't testify about anything more than their experts were allowed to testify," she said. "There were several hours of testimony where the (Flatts') experts addressed what the risks of circumcision procedure are."

The Flatts' lawsuit had also objected to a North Dakota law that forbids female genital mutilation, arguing that it did not give equal legal protection to both sexes.

Rothe-Seeger dismissed the claim before trial, saying the Flatts did not have legal standing to assert it. Douglas Bahr, an assistant attorney general, asked the justices Wednesday to affirm Rothe-Seeger's decision.

"Flatt was not forced to be circumcised [?], or prohibited from being circumcised. The medical decision was left to him and his parents," Bahr wrote in a court filing. "Flatt's surgery is traceable to his parents' consent for the procedure."


Related pages:

Back to the Intactivism index page.