Circumcision Case to Proceed to Trial

Berkeley, CA - This month, North Dakota District Judge Cynthia Rothe-Seeger denied a motion for summary judgment by defendants in the Flatt v. Kantak circumcision case, and decided it will proceed to trial on February 3, 2003. The precedent setting decision confirms that a baby who is circumcised can sue his doctor when he reaches age of majority, even if there was parental consent for the circumcision, and even if the results are considered to be normal.

This is the latest in a series of warnings to doctors who still circumcise: proceed at your peril, because even if you get parental consent and do a standard job of the circumcision, the child can still grow up and sue you for taking away part of his penis, says lawyer J. Steven Svoboda, executive director of Attorneys for the Rights of the Child ( ARC).

Like the on-going William Stowell case in New York, this case would be a breakthrough in establishing that circumcision is litigious even where there is no botch and consent is given, but there are problems with the consent. In this case, the mother was not informed about the procedure prior to signing the consent form. Plaintiff Flatt's attorney Zenas Baer says, There will be a nine-person jury hearing this precedent setting case. I am optimistic we will be able to have the informed consent issue decided by the jury.

Svoboda said, This is the second significant legal victory this year, after the case of William Stowell also survived summary judgment and is proceeding to trial. Both cases will establish that, even where the procedure is performed at the professional standard, a circumcision is litigious if the consent is not informed.

Baer added, The court also observed that, in an informed consent case, the type of information to be disclosed to a parent is a 'standard set by law for physicians rather than one which physicians may or may not impose upon themselves.' This is a huge statement and will put the physicians in their place if we can convince nine reasonable people that the physicians failed to give adequate information.

Marilyn Milos, Director of  NOCIRC, an organization that seeks to end routine infant circumcision in North America, says, Female genital mutilation has been outlawed, and we need the law to set the standard here, too, followed by aggressive educational programs. Parents and doctors need to know that this is a harm that lasts a lifetime.

Svoboda stated The foundation is well laid for lawsuits. Doctors who are still doing circumcisions are already investing in a lot of trouble, and this case will make their troubles worse. They just have to wait 18 years until that baby grows up, and they're in for a lawsuit. An army of lawyers will be there with this precedent and many more in their arsenal.

This landmark case brings into question whether a physician can remove healthy, normal tissue from unconsenting minors for non-therapeutic reasons, and whether a parent can legally consent to a medically non-indicated surgery for a minor child. Svoboda is convinced that this case will have a major impact on circumcision in the U.S. Doctors ignore a lot of medical literature, he said, and they ignore the screams of the babies, but they listen when they hear the word 'malpractice.' As a lawyer willing to sue, I' ve never had a doctor not listen to me.

Arizona and Missouri have recently dropped Medicaid funding for circumcision, joining six states, and other states are considering similar steps. The American Academy of Pediatrics (AAP) first acknowledged that there was no medical justification for routine circumcision in 1971. In 1999, the AAP reaffirmed that it does not recommend routine circumcision. The American Medical Association concurred in 2000, calling routine circumcision non-therapeutic. No national or international medical organization recommends routine circumcision. The United States is the only country that continues to circumcise the majority of its newborns for non-religious reasons. As parents have become more educated about the surgery, the circumcision rate in the US has fallen to 57%.

 Back to the News 2002 page.

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