Circumcision case appeal set today heard today by N.D. Supreme Court

By Janell Cole
The Forum - 05/12/2004

BISMARCK – The Hawley, Minn., mother who lost a lawsuit last year against the doctor who circumcised her baby hopes to get a new trial.

Anita Flatt's attorney, Zenas Baer, will argue at the North Dakota Supreme Court today that the trial judge wrongly excluded some of her experts' proposed testimony and misled the jury when giving them instructions.

Baer argues in his brief that the judicial errors made were so numerous that the case should be retried.

"They began pretrial by excluding relevant evidence and continued throughout the course of the trial," Baer writes in his brief.

The case is being watched by anti-circumcision activists around the country and internationally.

Flatt alleges she was not fully informed of the elective surgery's effects on her son when she gave her consent for the operation on her day-old son in 1997.

Afterward, when the parents saw what had happened, they cried, Baer writes.

Flatt and her husband, James, sued Dr. Sunita Kantak, MeritCare Medical Center and the state of North Dakota.

Flatt is also a lawyer and was joined in practice with Baer before the lawsuit was filed.

Lawyers for the hospital and doctor said the Flatts were well-informed and that the mother chose the circumcision after receiving written information and being told of the pain medication her son would receive. Doctors said the circumcision and recovery were normal.

James Flatt died before the case went to trial.

After a two-week trial in Cass County District Court in February 2003, the jury found the doctor was not negligent. East Central District Judge Cynthia Rothe-Seeger dismissed the case against the state before the trial and dismissed the case against the hospital before the case went to the jury.

Rothe-Seeger later denied Flatt's request for a new trial and Flatt then appealed.

Baer, of Hawley, wanted to have medical experts testify about the standards doctors should use in getting informed consent from patients.

He also said the judge abused her discretion and ordered Flatt to pay the hospital and doctor's costs of the lawsuit.

The state of North Dakota was sued on constitutional grounds because Baer alleges a law banning female genital mutilation is unconstitutional by protecting girls but not boys.

Though they were dismissed from the case, the state and the hospital are joining the doctor in fighting the attempt to get a new trial. State Solicitor General Douglas Bahr argues that Flatt had no standing to challenge the law's constitutionality.

Readers can reach Forum reporter Janell Cole at (701) 224-0830