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, Fargo-based MeritCare Hospital and the state of North Dakota 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.
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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.
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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.
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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.
Readers can reach Forum reporter Jeff Baird at (701) 241-5535
