Forum (Fargo, North Dakota). Wednesday, 9 July 2003.
Forum (Fargo, North Dakota). Wednesday, 9 July 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.
The Circumcision Information and Resource Pages are a not-for-profit educational resource and library. IntactiWiki hosts this website but is not responsible for the content of this site. CIRP makes documents available without charge, for informational purposes only. The contents of this site are not intended to replace the professional medical or legal advice of a licensed practitioner.
© CIRP.org 1996-2024 | Filetree | Please visit our sponsor and host: IntactiWiki.
