Trial Transcript

Transcription

Trial Transcript

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IN DISTRICT COURT, COUNTY OF CASS, STATE OF NORTH DAKOTA.
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- - - - - - - - - - - - - - - - - )
Josiah Flatt by and through
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His Natural Guardians
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Anita Flatt and James Flatt,
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)
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Plaintiffs,
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vs.
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Sunita A. Kantak, M.D.,
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MeritCare Medical Center and
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State of North Dakota,
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Defendants.
)
)
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Civil No. 99-3761
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TRANSCRIPT
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OF
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TRIAL
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Taken at
Cass County Courthouse
Fargo, North Dakota
February 13, 2003
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BEFORE THE HONORABLE CYNTHIA ROTHE-SEEGER - DISTRICT JUDGE -- AND A JURY -VOLUME VIII
(Pages 1212-1506)
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_A_P_P_E_A_R_A_N_C_E_S_
MR. ZENAS BAER of
Zenas Baer and Associates
Attorneys at Law
331 Sixth Street
P. O. Box 249
Hawley, Minnesota 56549
FOR THE PLAINTIFFS.
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- - - MS. JANE C. VOGLEWEDE and
MS. ANGELA E. LORD of
Vogel, Weir, Bye, Hunke
& McCormick, Ltd.
Attorneys at Law
502 First Avenue North
P. O. Box 1389
Fargo, North Dakota 58107
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FOR THE DEFENDANTS
SUNITA A. KANTAK, M.D.,
AND MERITCARE MEDICAL
CENTER.
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- - - -
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1213
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_C_O_N_T_E_N_T_S_
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Page No.
Plaintiff rests
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Defendant's motion for judgment as a matter
of law
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Plaintiff's response to above motion
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Plaintiff's motion for judgment as a matter
of law
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- - - PLAINTIFF'S WITNESSES:
Page No.
SUNITA A. KANTAK, M.D.
Continued cross-examination by Mr. Baer
Cross-examination by Ms. Voglewede
Recross-examination By Mr. Baer
Recross-examination by Ms. Voglewede
Further recross-examination by Mr. Baer
Further recross-examination by Ms. Voglewede
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1234
1260
1267
1268
1270
ANITA FLATT
Redirect examination by Mr. Baer
Recross-examination by Ms. Voglewede
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1279
- - - DEFENDANT'S WITNESSES:
Page No.
KRISTI BURGARD
Direct examination by Ms. Voglewede
Cross-examination by Mr. Baer
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1345
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FLO DREILING
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Direct examination by Ms. Lord
Redirect examination by Ms. Lord
Recross-examination by Mr. Baer
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1348
1361
1374
1374
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DEFENDANT'S WITNESSES:
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GLENN MASTEL, M.D.
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Direct examination by Ms. Voglewede
Redirect examination by Ms. Voglewede
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1444
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1471
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MARY JOHNSON
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AMY THILMONY
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THEODORE J. SAWCHUK, M.D.
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Page No.
1474
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ERIC R. LUNN, M.D.
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- - - -
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PLAINTIFF'S EXHIBITS:
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No.
Description
Page Number
Marked Off'd
Rec'd
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35
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MeritCare Hospital policy and
procedure for medical records
documentation
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----
1225
1225
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DEFENDANT'S EXHIBITS:
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No.
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116
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Page Number
Marked Off'd Rec'd
Description
Curriculum vitae of
Sunita Kantak, M.D.
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----
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1271
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(The trial herein was continued in open court, in
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the presence of the jury, at 8:00 a.m., Thursday, February
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13, 2003, as follows:)
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THE COURT:
Let the record show that all parties,
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counsel and jurors are present.
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Jurors, I've talked with my staff, and I think
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we're going to have you take your buttons home with you,
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your juror buttons home with you, so when you come early
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tomorrow, if you have your button, you shouldn't have a
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problem, you won't have to wait for security.
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help?
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inconvenience, but we'll do that.
Okay.
That's the least I can do.
Sorry for the
Okay.
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Mr. Baer, do you want to continue?
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MR. BAER:
Yes.
Will that
Continue with cross-examination
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of Dr. Sunita Kantak.
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THE COURT:
Doctor, you are still under oath.
Please take the stand.
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SUNITA A. KANTAK, M.D.,
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having been previously sworn, was examined and testified
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further on her oath as follows:
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CONTINUED CROSS-EXAMINATION
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BY MR. BAER:
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Q
Dr. Kantak, yesterday, we talked briefly about how
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you became the physician for Josiah Flatt.
And I understood
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you to say that you were not asked to be the physician for
1217
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Josiah Flatt by Anita Flatt, correct?
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A
That's right.
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Q
Nor by James Flatt, correct?
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A
That's right.
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Q
And do you note in the medical records in Exhibit
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7, page 5, does the admitting nurse of Anita Flatt into the
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hospital identify the baby's physician?
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A
In her chart, it does say, "Baby's physician:
Pitts."
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Q
That's not you, is it?
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A
That's not me.
And we don't have any pediatrician
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by the name Pitts.
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Q
Did you ever talk to Dr. Pitts?
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A
It's not my duty to do that.
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Q
Okay.
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A
No.
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Q
Okay.
Not your duty to do that?
What you can glean from this record,
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however, is that when Anita Flatt was admitted on March 5,
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1997, she was asked who her baby's doctor was and the
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response was Dr. Pitts, correct?
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A
The response that we look at is on baby's chart
and not on Anita Flatt's chart.
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Q
All right.
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Kantak.
Dr. Kantak.
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as baby's physician?
Let's look at baby's chart then, Ms.
Look at Exhibit 6.
Who is identified
1218
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A
Now, if you see on that chart, "baby's physician,"
it is written as Bro.
3
Q
Isn't it --
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A
And mother's physician is written as MeritCare,
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Dr. Kantak so --
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Q
No, it's Pitts, isn't it?
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A
But then it is scraped and -- or what do you call
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it?
-- crossed, whatever, and it is written down that
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MeritCare, Dr. Kantak so --
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Q
You don't know when that was put on there, do you,
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Dr. Kantak?
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A
I have no idea.
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Q
Right.
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A
Plus, if you see baby boy, I think if you see
It could have been --
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there, my name is there, Sunita Kantak on the stamp of the
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thing.
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Q
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Kantak, Sunita.
Sure.
The baby stamp.
I'm just wondering how you got an agreement
with Anita Flatt to be the pediatrician for Josiah Flatt.
A
Mr. Baer, when a mother comes in, she says that
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MeritCare physician or if she wants a MeritCare physician --
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or family physician, then she will tell who the family
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physician is.
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stamp guard is done, you see my name, Kantak, Sunita, so
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that goes --
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Q
Now, on this chart, when the baby's -- the
I understand.
The stamp is done, but that isn't
1219
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an agreement between the Flatts and Dr. Kantak, is it?
A
It's not an agreement, but if she did not want,
she had a right to tell.
Q
Did you see Exhibit 11-D, which identifies you as
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the baby's physician, and then it's crossed out and Ms.
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Flatt put in Dr. Mastel, correct?
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A
Yes, in her -- in her testimony, when I heard it,
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she did mention that when she decided Mastel to be her
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physician, she scraped -- scraped my name and put Mastel's
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name.
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Q
Mastel is not a pediatrician in your group, is he?
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A
He's a family physician.
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Q
Is he a pediatrician in your group?
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A
No.
15
Q
Dr. Pitts is a physician at MeritCare as well, is
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he not?
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A
He's an internal medicine physician.
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Q
There's no rule against having an internal
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medicine physician taking care of a baby, is there?
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A
I suppose --
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Q
Yes or no.
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A
That is no rule.
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Q
Right.
Now, Dr. Kantak, you were here yesterday
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when nurse Sherry Stoa testified about your routine,
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correct?
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A
That's right.
2
Q
And nurse Sherry Stoa indicated that you have had
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the same routine since her recollection, correct?
A
That is right.
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Q
And in her recollection of your routine, you
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mentioned that you've always talked about kids suing parents
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because they allowed that circumcision to be done, correct?
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Do you remember that testimony?
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A
I did not say because circumcision is done.
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Q
Do you remember Sherry Stoa's testimony?
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A
I remember Sherry Stoa's testimony.
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Q
And do you recall her saying that kids could sue
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their parents?
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A
Yes.
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Q
And that is part of your talk, correct?
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A
Many times, yes.
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Q
And you also said -- or Sherry Stoa also mentioned
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that your standard procedure is to talk about, if you do it
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to boys, why not girls, correct?
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A
That's right.
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Q
By saying, Dr. Kantak, that the babies can sue
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their parents, aren't you saying that the parents are not
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acting in the best interests of the babies?
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A
No, I said that that was the controversy.
heard about it.
That is how I put it.
I have
You know, she cannot
1221
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tell exactly the word to word, so I tell the parents that
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there has been cases where the -- later on in their life,
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the kids have sued their parents.
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Q
And you haven't said that all the time you have
been a MeritCare pediatrician, have you?
A
Remember that when I go in the mother's room, I
don't have a record player.
Q
I talk --
Dr. Kantak, Sherry Stoa indicated that you've
given the same talk since you got to MeritCare in 1998,
correct?
A
She said that, but she's not there all the time
with me.
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Q
So your talk has changed over the years, correct?
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A
I will not say over the years, because now they
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had me asking that everybody needs to be -- use -- everybody
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needs to use lidocaine.
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1989 or '88, I did not use lidocaine, so I was not talking
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about lidocaine.
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Q
So I don't use that.
Before, in
Now, didn't you in response to answers to
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interrogatories describe each statement you made regarding
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your conversation with Anita Flatt before obtaining consent?
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A
There were 200 and plus interrogatories, so I
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might have missed here and there one or two things I don't
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remember.
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Q
I just want to show you -1222
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A
2
Q
Yeah.
-- and have you have an opportunity to review it.
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Page 7, under the heading informed consent, just review
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that, if you would, please.
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A
Would you like me to read it first?
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Q
Just read it to yourself first --
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A
Read it to myself?
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Q
-- just to -- just refresh your recollection.
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A
Yeah.
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Q
These answers to interrogatories were signed by
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you under oath on June 13, 2000, correct?
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A
June.
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Q
I'll help you get that signature page.
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A
All right.
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Q
These are some attachments, Dr. Kantak.
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A
Okay.
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Q
They were made under oath?
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A
Oh, yeah.
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Q
In anyplace in that answer where the question was,
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I don't even know that.
Where do I see the
--
I don't know.
Okay.
13 June, 2000.
Yeah.
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"Please state in complete detail as to each statement you
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made to plaintiff concerning the test procedure, operation,
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or agent involved in the plaintiff's alleged occurrence," do
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you mention at all talking to Anita about kids suing
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parents, Dr. Kantak?
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A
As I said --
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Q
Do you mention it in this response?
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A
I do not.
4
Q
Do you mention anything in this response about
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boys -- if boys, why not girls, Dr. Kantak?
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A
No.
7
Q
Dr. Kantak, showing you what has been marked for
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identification purposes as Exhibit 35, you recognize Exhibit
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35?
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A
Exhibit 35.
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Q
I will represent to you that it is a copy of a
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policy and procedure of MeritCare Hospital regarding medical
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records and the requirement for maintenance of medical
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records.
Do you recognize that document with that --
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A
Where does it say --
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Q
-- intro?
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A
Where does it say MeritCare?
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There is no
MeritCare thing there.
Q
So you don't recognize it, is that what you're
saying?
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A
We don't look at this all the time, no.
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Q
Have you ever looked at it?
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A
I might have during this process.
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I don't
remember now.
Q
Are you, as a physician at MeritCare, with
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privileges at MeritCare, required to follow certain policies
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and procedures of MeritCare with regard to record keeping?
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A
That's right.
4
Q
And does it appear as though what you have before
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you as Exhibit 35 is the policy and procedure for MeritCare
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on medical records?
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A
As I said, I don't see the MeritCare, but it does
say, "Section B:
Q
Medical Records."
I will represent to you that this was supplied to
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me in response to a request for production of the medical
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records policy and procedure protocols from MeritCare.
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A
Then it should be.
13
Q
Do you recognize it?
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A
I might have seen it.
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15 years, so I don't see it every year, you know.
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MR. BAER:
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MS. VOGLEWEDE:
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THE COURT:
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Now I have been there for
Q
I would offer Exhibit 35.
No objection.
Plaintiff's Exhibit 35 is received.
(Mr. Baer continuing)
Now, with regard to Exhibit
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35, Dr. Kantak, you are aware, are you not, of the
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requirement under the policy and procedures to maintain a
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certain minimum amount of medical records, correct?
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A
That's right.
24
Q
And if you look at 1 on page 1, Dr. Kantak, if you
25
would, please, under "General," it requires an attending
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physician -- which you would be the attending physician for
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Josiah Flatt in this case, correct?
3
A
That's right.
4
Q
It requires you to record and include
5
identification data, complaint.
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Flatt have, Dr. Kantak?
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A
Is responsible for the preparation of a complete
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and legible medical record.
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and current.
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Its contents shall be pertinent
Shall include identification data, complaint,
past history, family history.
Q
What complaint did Josiah
All right.
He had no complaints.
How about history of present illness?
What did he have?
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A
There was no illness.
14
Q
And what was your provisional diagnosis?
15
A
Term newborn baby.
16
Q
And what was your surgical treatment?
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A
Mother wanted circumcision, so circumcision was
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He was a healthy baby.
done.
19
Q
And your final diagnosis?
20
A
Again, newborn baby.
21
Q
Minus the foreskin, correct?
22
A
Procedure done, circumcision.
23
Q
All right.
24
25
Now, in the paragraph 5 under medical
records, it talks about operative reports.
A
Do you see that?
That's right.
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2
Q
Now, removing the foreskin is a surgical
procedure, correct?
3
A
It is a surgical procedure.
4
Q
And under paragraph 5, it talks about operative
5
reports.
And the operative report, it says, shall include a
6
detailed account of the findings.
Do you see that?
7
A
It does say that.
8
Q
And do you also see that it requires you to list
9
the details of the surgical technique?
Do you see that?
10
A
That's right.
11
Q
Now, looking at Exhibit 6, can you read that on
12
13
It says that.
the monitor, Dr. Kantak?
A
Yeah.
On date 3-7-97, circ performed with one
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percent lidocaine without any problem, tolerated well.
15
There is some more, I think.
16
Continue present care.
17
Q
Physical examination normal.
Does that operative note contain a detailed
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account of the findings?
19
A
For that circumcision, that is what is needed.
20
Q
Does it contain a detailed account of the
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25
findings, Dr. Kantak?
A
It does not contain the detail like the operative
reports of our medical record rules.
Q
Does it -- does it contain the details of the
surgical technique, Dr. Kantak?
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A
It does not.
2
Q
Does it identify anything about the technique that
3
was used?
4
A
No.
Can I clarify something?
5
Q
Go ahead.
6
A
As far as I know, during our -- in the -- during
7
our pediatric talks and our charts have been reviewed in the
8
past, and there's not been any suggestions that we shall
9
write more on circumcision, from which I presume that JCAHO,
10
that is, the joint commission, does not ask to write more
11
details on circumcision or lumbar puncture, those type of
12
things.
13
Q
That's my understanding.
Dr. Kantak, the policy and procedure that has been
14
introduced as exhibit -- I think it's 35 -- does not except
15
circumcision, does it?
16
17
18
19
20
21
22
A
I don't know whether they except circumcision or
Q
Is there a statement in this policy and procedure
not.
on medical records that excepts circumcision, Dr. Kantak?
A
That will be -- I don't know.
It is a surgical
procedure so -Q
Okay.
Dr. Kantak, did you -- strike that.
You
23
did not describe to Ms. Flatt, even if you followed your
24
procedure, that asymmetry was one of the risks of the
25
procedure, did you?
1228
1
A
To my understanding --
2
Q
Yes or no, did you?
3
A
I did not say asymmetry at all.
4
Q
Okay.
5
6
7
8
9
10
You did not say anything about adhesions
being a risk, did you?
A
I did not.
I do not consider it as a risk, so I
did not.
Q
You looked through the medical records, however,
and found that Dr. Mastel on May 7, 1997 diagnosed
asymmetric circumcision, correct?
11
A
He said that it was asymmetric.
12
Q
Well, isn't that in the record?
13
14
15
16
17
18
A
Yeah, but it could be because of the adhesions,
which can come out later on.
Q
But his diagnosis was asymmetric circumcision,
correct?
A
That's the way he wrote it.
I don't write it if I
see like that.
19
Q
Okay.
20
A
Yeah, we see that and we take care of it right in
21
22
23
24
25
Because it's so common, correct?
the office if parent want it.
Q
And if it is so common, why don't you warn the
parents that this is going to happen?
A
Because in my experience I do not consider it as a
risk.
1229
1
2
Q
How about adhesions?
I take it, the same thing?
You don't consider that to be a risk, correct?
3
A
That's right.
4
Q
And you indicate that you don't consider it a risk
5
because you just separate it and tear that skin apart in an
6
office setting, correct?
7
A
If parents want it, I do it in the office, but I
8
have done it in my 15 years of experience only probably
9
twice or maximum twice.
10
I don't even remember.
think -- I don't consider it as a big-time risk.
I don't
11
Q
You saw the records and it showed that Dr. Sawchuk
12
did a lysis of the adhesions on either August 1 or August 2,
13
correct?
14
A
That's right.
15
Q
And that is a ripping apart of tissue, correct?
16
A
I don't know whether I would call it ripping apart
17
At five months of age.
word.
18
Q
Well, do you pull the skin apart?
19
A
That's right.
20
Q
And it is my understanding, Dr. Kantak, that the
21
cause of an adhesion, according to your testimony, is that
22
when you have two raw skin surfaces, if they meet, they grow
23
together, correct?
24
A
That is what I have said, yeah.
25
Q
And the raw skin surfaces, just so that we're
1230
1
clear, are the glans of the penis and the foreskin or the
2
remnant of the foreskin, correct?
3
A
No, Mr. Baer.
What I meant by that is when you
4
cut the skin and when you do the circumcision, that is the
5
skin that has been cut, so the skin has -- has to grow as
6
the child is growing.
7
be -- you know, the skin has to grow, so that's -- the cells
That's normal.
Otherwise, it will
8
9
10
can encroach on the glans.
Q
Could you look at page 90 of your deposition, Dr.
Kantak, please.
11
A
Yeah.
12
Q
Do you have page 90?
9-0.
Line 13.
13
the question -- or line 10.
14
would be human cells creating a permanent union between the
15
foreskin and the glans?"
16
when you -- you have a circumcision done, that is raw area,
17
and any time the skin, two raw areas can come together and
18
stimulate cell growth and make the band or adhesions."
19
"Question:
Did I ask
"Answer:
To my understanding,
Did I read that correctly?
20
A
Yeah, that is what I'm saying.
21
Q
Okay.
22
And the cause of those two raw areas was
the circumcision, correct?
23
A
The circumcision --
24
Q
Was it?
25
But these adhesions
Was it -- was the cause of those two raw
areas the circumcision?
1231
1
A
I don't know whether I will put -- I will say
2
exactly the way to tell you in medical terms.
The way we
3
explain to the parents is, the skin is growing so the
4
cells -- you know, it's growing cells so the cells grow on
5
it on, the glans.
6
Q
Dr. Kantak, if no circumcision had been done,
7
would there have been raw surfaces on Josiah Flatt's penis
8
when he was discharged?
9
A
Mr. Baer --
10
Q
Yes or no.
11
A
The circ is done, so there is -- it has to be raw
12
13
14
area.
Q
Okay.
So the circumcision caused the raw
surfaces, correct?
15
A
Any surgery causes the raw surfaces.
16
Q
Okay.
Dr. Kantak, when you performed the
17
circumcision, the -- when you perform a circumcision, you
18
have helpers, correct?
19
A
The nurses, yes.
20
Q
And the nurses are employees of the hospital,
21
correct?
22
A
I think so.
23
Q
And the hospital also supplies you as a medical
24
25
doctor with the space to do the circumcisions, correct?
A
That's right.
1232
1
Q
They also supply you with the circ tray, correct?
2
A
That is right.
3
Q
And that circ tray has this sterile drape?
4
A
Of course.
5
Q
It has the straight mosquito forceps, correct?
6
A
That's right.
7
Q
It has the Kellie forceps, correct?
8
A
Yeah.
9
Q
It has the Gomco clamp and bell, correct?
10
A
That's right.
11
Q
It has the scissors, correct?
12
A
That's right.
13
MS. VOGLEWEDE:
14
THE COURT:
15
MR. BAER:
Object, relevance.
Mr. Baer, what's the relevance?
This goes to the issue of the
16
hospital's liability and the hospital providing the tools
17
for this circumcision.
18
MS. VOGLEWEDE:
19
itself is not an issue in the case.
20
21
22
THE COURT:
Q
Your Honor, the circumcision
Sustained.
You also had an opportunity
to review Dr. Sawchuk's report, did you not, Dr. Kantak?
23
A
That's right.
24
Q
And he diagnosed adhesions, did he not?
25
A
That's right.
1233
1
MR. BAER:
Nothing further.
2
THE COURT:
Ms. Voglewede.
3
MS. VOGLEWEDE:
4
5
6
Thank you, Your Honor.
CROSS-EXAMINATION
BY MS. VOGLEWEDE:
Q
Dr. Kantak, Mr. Baer asked you yesterday and then
7
again this morning whether Anita Flatt ever asked you to be
8
her son's pediatrician.
Do you recall that?
9
A
That's -- yes.
10
Q
And when he asked you that yesterday, you said,
11
That's not the way it works.
12
jury how it does work for assignment of pediatricians to
13
babies who are admitted to the newborn nursery?
14
A
Okay.
Would you describe for the
In our pediatric department at the
15
MeritCare, we are about 40, 50 pediatricians.
16
what happens is, I would -- the lady who does the scheduling
17
schedules the pediatricians one at a time in the nursery,
18
which means for the one week, Monday to Friday, one
19
pediatrician is assigned to the newborn nursery who is
20
responsible for the newborn babies that go under the
21
MeritCare pediatricians' care from 7:00 in the morning till
22
12 -- 12:00 o'clock or 1:00 o'clock, I can't say, in the
23
morning.
24
25
So normally
After that the person on call takes care if there
is any problems in the nursery.
So we are -- we are
1234
1
supposed to be in the -- in the -- taking care of newborn
2
babies in the morning.
3
of us go by between 8:00 to 9:00 o'clock.
4
there -- and so that pediatrician is put in as the
5
pediatrician taking care of the baby.
6
name came during the -- that week of March 6.
7
Q
So we go there in the morning.
Most
So when we go
So that is how my
Dr. Kantak, is that true even for a mom who comes
8
in who has had previous children and maybe already has a
9
pediatrician at MeritCare?
10
Would you still be the
pediatrician that would see that new baby that week?
11
A
That is right.
12
Q
And Anita Flatt testified earlier that the doctor
13
that she wanted to be her baby's doctor was Dr. Pitts, Dr.
14
Bruce Pitts.
15
A
Yeah.
16
Q
And you've said that he's an internist or an
17
Do you recall that?
internal medicine specialist, correct?
18
A
That is right.
19
Q
You know who Dr. Pitts is --
20
A
Yes.
21
Q
-- at MeritCare?
22
A
No, not to my knowledge.
23
Q
Not a family practice doctor?
24
A
Not to my knowledge.
25
Q
And to your knowledge, has he done pediatric care
He's not a pediatrician?
1235
1
in the nursery during any of the time you have been at
2
MeritCare?
3
A
On my -- in my 15 years of practice in pediatrics
4
at Children's Hospital, I have not seen Dr. Pitts coming in
5
for anything in pediatrics with children care.
6
7
Q
Now, turning your attention, Dr. Kantak, to March
6 of 1997, did you examine Josiah Flatt on March 6, 1997?
8
A
Yes.
9
Q
And how do you know that?
10
A
Because I have documented his exam on my admission
11
note.
12
Q
Would you turn to that note in Exhibit 6, Exhibit
13
6, page 3.
14
MS. VOGLEWEDE:
15
THE COURT:
16
Q
May I approach, Your Honor?
You may.
(Ms. Voglewede continuing)
And, Dr. Kantak,
17
showing you Exhibit 137, which is an enlargement of that
18
page, would you show the jury where you documented that you
19
did a newborn exam of Josiah Flatt on March 6 of 1997?
20
A
This is the blowup for patient admission data base
21
permanent chart copy, Family Birth Center, in the nursery,
22
birth examination by physician.
23
heart, lungs, abdomen, genitalia, extremities, hips, skin,
Head, ear, nose, throat,
24
neurological exam.
Diagnosis:
Term well newborn boy.
This
25
is my signature, Sunita Kantak, and the date is on 3-6-97.
1236
1
2
3
Q
Would you tell the jury briefly what you did that
day when you went through that examination of him?
A
That examination includes examination of the baby
4
from head to the toe.
5
we first examine from up to down, because babies can, you
6
know, they -- when we move them and when we unwrap them,
7
they cry and all, so we examine when they're quiet heart so
8
that I get good listen to the heart.
9
And we -- as adults, we don't go like
Then examine head, neck, face, the whole
10
examination.
We see there are any abnormalities in any
11
sense there.
Then we look for the clavicle, we look for
12
anything in the neck.
13
respiratory system, listen to the lungs, then examine the
14
abdomen, then examine -- look for the -- look for the
15
femoral pulses, look for the genitalia examination, examine
16
the upper and the lower extremities, that is, his hands and
17
the legs, and examine the hips.
18
back for any abnormalities.
19
20
21
Q
Then we examine the heart sounds,
Dr. Kantak, where did you do that examination of
Josiah Flatt?
A
And examine, of course,
In the nursery.
22
Q
And is that where you would normally do those
23
exams?
24
A
Yes.
25
Q
And did you in addition to documenting your
1237
1
examination of him sign any orders for his newborn care?
2
A
Yeah, I did sign the orders also.
3
Q
Can you turn to the pages that those orders exist,
4
Exhibit 6?
5
A
Yeah.
6
Q
That's at page 11, 12 and 13?
7
A
That's right.
8
Q
And did you sign those orders, Dr. Kantak?
9
A
That's right.
10
Q
And is this your signature on those orders?
11
A
The top one is by the nurse, and then the S. A.
12
13
14
Page 11.
Kantak is my signature.
Q
Okay.
I note, Doctor, that these are called
routine orders for newborn treatment; is that correct?
15
A
That is right.
16
Q
Are those the same as standing orders?
17
A
That's right.
18
Q
And are those orders that all of the pediatricians
19
in the Family Birth Center use for newborns?
20
A
That's right.
21
Q
And were those orders in effect for Josiah Flatt?
22
A
Yes.
23
Q
Doctor, when you're working in the nursery at the
24
Family Birth Center, do you do any charting in the nursery
25
before you go on rounds to see patients?
1238
1
2
A
If there is anything like abnormal I find on exam,
I will write it.
3
Q
Where would you write that if you found --
4
A
On the --
5
Q
-- if you found something abnormal?
6
A
Say, for example, I find some abnormality on the
7
head; like during the delivery, they can have a small bruise
8
here called cephalhematoma or something called caput
9
succedaneum.
Then I will just -- it's not called abnormal
10
as such, but I feel I need to know that so that I can
11
discuss that with the mother when I go so that they don't
12
get -- when they see that they don't get completely, you
13
know.
14
she will note it or write it down, make a note on her cards
15
so that when I go for the rounds, I can discuss and then I
16
chart it later.
So I usually write it or if my nurse's right there,
17
18
Q
Dr. Kantak, did you visit with Anita Flatt on
March 6 of 1997?
19
A
Yes.
20
Q
And how do you know that?
21
A
Because I have documented that.
22
Q
Where did you document that?
23
A
In my chart.
24
Q
What page?
25
A
Page 3.
In the baby's chart, I mean.
1239
1
2
3
Q
Show the jury where you documented that you saw
Anita Flatt on March 6.
A
As I said, this is the documentation of the baby.
4
Then I have signed here that hepatitis B vaccine information
5
provided to parents.
6
Signed by S. A. Kantak on 3-6-97.
7
down another thing, risks of local anesthesia and
8
circumcision discussed.
9
express understanding.
10
Q
Vaccine discussed and recommended.
Then I have also written
Procedure described.
Parent
Signed, S. A. Kantak, 3-6-97.
Mr. Baer asked you yesterday if there was any
11
documentation that you were in Anita Flatt's room on 3-6-97.
12
Is this documentation that you were in her room on 3-6-97?
13
A
This is the documentation --
14
15
MR. BAER:
A
I think he asked me --
16
17
18
THE COURT:
ruling.
A
I need to make a
Now you may answer.
I thought he asked me whether I was in her room at
8:30.
20
3-6-97 that -Q
Just a moment.
The objection is overruled.
19
21
Objection, leading, foundation.
I was not.
But I have -- I was here, so this is the
Dr. Kantak, do you
22
discuss circumcision for the first time with a mom on the
23
same day you do the circumcision?
24
A
No.
25
Q
When do you first discuss it with the parent?
1240
1
A
I discuss the circumcision with the parents the
2
day I examine the baby.
3
examination.
4
Q
And in Josiah Flatt's case, what day was that?
5
A
That was on 3-6-97.
6
Q
When you're assigned to the nursery, Dr. Kantak,
7
That is the first newborn
how often do you make rounds?
8
A
I didn't understand.
9
Q
When you are assigned to the nursery in the Family
10
11
Can you please repeat.
Birth Center, when do you make rounds to see the parents?
A
I make rounds after I'm all done with the work in
12
13
14
the -- at the birth center.
Q
And do you make rounds every day that you are
assigned to the nursery?
15
A
Of course.
16
Q
Did you make rounds on March 6 and March 7, 1997?
17
A
Yes.
18
Q
What's the purpose of making rounds to talk to
19
20
moms?
A
Well, the purpose is, I'm the physician, I'm
21
examining the baby, so it's my responsibility as a
22
physician, as a pediatrician, to discuss the findings of the
23
baby to the mother.
24
over with the things that I told you earlier.
25
Q
And if they have any concerns and go
Does anyone accompany you when you make those
1241
1
rounds?
2
A
The family -- the nursery nurse, charge nurse.
3
Q
Do you have a regular practice that you follow
4
when you make rounds and talk to moms?
5
A
Yeah.
6
Q
And how long have you followed that practice?
7
A
Since I came there.
8
Q
Describe, if you would, Dr. Kantak, for the jury,
9
10
what your practice is when you go around to talk to moms for
a new baby who's just been admitted to the nursery.
11
MR. BAER:
12
THE COURT:
13
14
Objection, relevancy.
Answer
the question, please.
A
Well, when I have to -- after the -- all my work
15
is done in the nursery, me and the nurse, the family --
16
regular nurse, who is taking care of the -- who is in charge
17
of the nursery, we will go in the -- for the rounds to see
18
all the babies.
19
before entering of course from the -- because I don't have
20
the whole -- you know, I have seen so many babies, so I ask
21
the -- before entering, I always ask the nurse which mother
22
and all the details or abnormalities, anything.
23
So when I go in the mom -- with the mom,
Then I enter the room.
After entering the room,
24
I -- as -- if she's a newborn -- first-time mom who has
25
never seen me, I always make sure that I enter and say, I'm
1242
1
Dr. Kantak, I'm the pediatrician on call in the Family Birth
2
Center.
3
that you have a very healthy baby boy or girl.
4
times ask them, you know, do you have a name for it, just to
5
make the conversation.
6
Then I -- I either congratulate her or just say
And I many
And then I tell her that -- talk to her about the
7
hepatitis B vaccine, tell her that hepatitis B vaccine has
8
been recommended, and it's transmitted through viral
9
infection, hepatitis B virus, and then it's -- in the
10
newborn stage, it is transmitted through the mother during
11
the delivery, but you are checked out for it by your
12
obstetrician, you are negative, you don't have to worry
13
about it.
14
Then I will tell them that hepatitis B, other
15
routes are through multiple partners, through secretions, so
16
your baby is not at risk, but still it is recommended
17
because if by any chance baby gets it, then baby is prone
18
for chronic hepatitis or liver cancer later on in life, so
19
we are trying to prevent that.
20
three sets of shots; one at birth, two months and six
21
months.
22
And tell them that it is
And I hand over or my nurse hands over the CDC
23
pamphlet we have, a small one-page paper.
24
I will ask them about the feeding.
You know, if they have
25
any questions.
If it's a boy, I will
Then I go over it.
Then if that's --
1243
1
say, now you have a boy, what do you think about
2
circumcision, have you people decided about circumcision?
3
If the mother says, yes, we want a circumcision, then I will
4
discuss.
5
circumcision, then I will say, thank you for not talking
6
about circumcision for me, my side.
7
If mother says, I don't want to, I don't want
Then I will -- if she says yes, then I will tell
8
her that, remember, circumcision is not medically
9
recommended, and it is not routinely -- routinely done.
10
you want it, it's parents' choice.
11
will be done tomorrow.
12
If
If they want it, then it
Then I will say that I do use local anesthesia,
13
one percent lidocaine, and I will tell about lidocaine, that
14
there are -- I use it in a very small amount, just -- I
15
inject it with a small needle right at the root of the
16
penis, and that there are risks involved with this
17
lidocaine, like, local, you know, hemorrhage or seizure, but
18
usually we don't see it.
19
local anesthesia.
20
It's pretty benign to use the
Then I will say -- then I will go over that,
21
saying that, remember, that circumcision is a surgery, it's
22
a minor surgery, but still it is a surgery, so there are
23
risks involved in the circumcision.
24
bleeding, introducing infection.
25
on -- that also later on in life,that is, like urethritis,
I will say the risk are
And then I will say, later
1244
1
ureteral meatus can come up with that.
Then I will go over
2
with the benefits.
3
described in the -- saying that there are less risk of
4
urinary tract infection, and because of the repeated urinary
5
tract infection, less risk of getting -- getting of scarring
6
or kidney failure later on in life.
7
I will say that potential benefits
Then as I go on, some parents will ask more
8
questions.
Many times I ask them, Why do you want
9
circumcision?
And I get answers from the parents, whatever
10
they think about.
11
you know, sometimes they will ask me, Why do you tell us all
12
this, we already decided.
13
more things like religion and all -- then I tell them many
14
times about loss of sensation, loss of sexual pleasure, that
15
the controversy that has come up with the people.
16
17
18
Q
Then I may go -- as the discussion goes,
Then the conversation goes with
Do you tell them, Dr. Kantak, that there is a loss
of sexual pleasure with circumcision?
A
Sometimes with the parents ask me about why are
19
you telling us, so then I will put this as a -- you know,
20
that help in con -- a lot of controversies is how I put it.
21
22
23
Q
Is that something that, in your opinion, has been
established by medical science?
A
No, it has not been established, and so that is
24
why I say that it is a controversy; there is no clear-cut
25
data on all this.
1245
1
2
Q
Dr. Kantak, when do you document that you have
discussed hepatitis and circumcision with moms?
3
A
4
with them.
5
Q
And where do you do the documentation?
6
A
In the Family Birth Center.
7
Q
Do you go back to the nursery --
8
A
Oh, yeah.
9
Q
-- to do that?
10
After I am done with the rounds.
After I discuss
Do you ever recommend to parents
that they have their baby boy circumcised?
11
A
No.
12
Q
Do you ever encourage parents to have their babies
13
circumcised?
14
A
No, I give them the choice.
15
Q
Anita Flatt has testified that you did not visit
16
her at all on March 6 of 1997.
Is that true?
17
A
No.
18
Q
And she has also testified that when you did see
19
her before the circumcision, you came a step or two inside
20
the room and all you said was, I am going to be doing the
21
circ on your son.
22
23
24
25
A
Is that true?
I have never done that even for -- for other
things, forget about circumcision.
Q
Have you ever skipped making rounds when you were
on duty at the nursery?
1246
1
A
No.
2
Q
Doctor, when you make rounds to talk to parents,
3
do you come just a step or two inside the room, kind of
4
standing in the doorway?
5
A
Well, now let me say, the door is a broad door, so
6
we have to open the door.
7
the door open, we are not -- that's not a fair way to do
8
that, so we have to close the door, so I am already way
9
inside with the door being open.
10
11
We cannot talk to the parent with
I have never done it just
in the step, no, when I have to talk this much.
Q
Dr. Kantak, the jury saw last week a videotape
12
taken by the Flatts over the period of March 5 through March
13
8, 1997.
And you've seen that video too, correct?
14
A
That's right.
15
Q
And you recall that the video showed Anita Flatt
16
and her husband commenting on March 6 of 1997 about the
17
hepatitis B vaccine and the circumcision.
You recall that?
18
A
Yeah.
19
Q
Who is it that first discusses hepatitis B with
20
parents?
21
A
It's me, or the pediatrician.
22
Q
And who is it that first discusses circumcision
23
24
with parents?
A
It's the pediatrician.
25
Q
And you know what the practice is of the nurses in
1247
1
terms of at what point they will take the consent forms to
2
parents to be signed for hepatitis or circumcision?
3
A
Well, during the time when I talk to them, I do
4
say that you have to sign a consent and the nurse will come
5
later on in the evening.
6
7
Q
Doctor, did you provide written materials to
parents on -- when you made your rounds in 1997?
8
A
Yes.
9
Q
And can you describe what written materials you
10
11
provided?
A
The written material that is being provided to the
12
parent is on the hepatitis B, the CDC pamphlet, and the
13
booklet that our department had -- was in circulation at
14
that time.
15
Q
And is that booklet on circumcision?
16
A
That's right.
17
Q
And before that booklet was written at the end of
18
1996, were there any written materials that you referred to
19
when you made rounds to parents?
20
A
Yes.
21
Q
Okay.
22
in 1997?
On the "Infant Care" book.
And that's a book that was still being used
23
A
Yes.
24
Q
Who would bring the hepatitis and the circumcision
25
written materials on rounds?
1248
1
A
My nurse has it with her.
I don't carry it, but
2
either she will hand over it once I am done with it or I
3
will hand over.
4
Q
Hand over to who?
5
A
To the mother or father, whoever is there.
6
Q
Dr. Kantak, you're a pediatrician, correct?
7
A
Yes.
8
Q
Are you board certified?
9
A
Yes.
10
Q
And how long have you been board certified?
11
A
I was -- I completed my residency in '88, and '89
12
I was board certified.
13
The last recertification was in December of 2002.
14
15
Q
18
19
What was the date of the first board
certification?
16
17
I am recertified twice since then.
A
It was in '89, I think October.
I don't remember
Q
Now, you have been at MeritCare for almost 15
now.
years now, correct?
20
A
I will be completing 15 in July.
21
Q
And at the time of Josiah Flatt's care in 1997,
22
you had been at MeritCare for about nine years, right?
23
A
That's right.
24
Q
Would you tell the jury where you got your medical
25
education?
1249
1
A
Well, I got my medical education in India.
I
2
completed my premed and then I went to four-and-a-half years
3
of medical school and then -- in Goa, India, under the
4
Bombay University.
5
rotating internship and got my degree.
6
that time bachelor of medicine and surgery, M.B., B.S.
7
8
Q
Then I did one-year internal -- or
That was called at
Did you have some medical practice experience in
India before you came to the United States?
9
A
Yes.
10
Q
What kind of practice?
11
A
After my rotating internship, I did six months'
12
residency in the obstetrics and gynecology.
13
did -- went for in the preventive medicine and community
14
medicine, where I worked as a resident, rural medical
15
officer, and then I did few years of general practice before
16
moving to United States in '82.
17
Q
And then I
You came to the United States in 1982?
18
A
That's right.
19
Q
And did you do specialty training in the United
20
States for pediatrics?
21
A
That's right.
22
Q
Where did you do that?
23
A
I did my residency in pediatrics at University of
24
25
Missouri, Columbia.
Q
And how long -1250
1
2
A
Columbia -- University of Missouri, Columbia,
yeah.
3
Q
How long did that training last?
4
A
The training lasted for three years.
5
Q
Dr. Kantak, why did you become a pediatrician?
6
A
Oh, because I like kids.
And I have done practice
7
in India, in community medicine in India, I've seen a lot of
8
kids, plus I am coming from a family of seven, so I always
9
help my mom, and so I like kids.
10
Q
Dr. Kantak, are you a U.S. citizen?
11
A
Yes.
12
Q
And you and your husband live here in Fargo?
13
A
That's right.
14
Q
Is he a physician with MeritCare also?
15
A
Yes.
16
Q
What is his specialty?
17
A
He's a pediatric allergy, immunologist and
18
pulmonologist.
19
Q
Do you have family?
20
A
Yes.
21
Q
How many children?
22
A
I have two kids.
23
Q
Where are they?
24
A
One is a is chemical and biomedical engineer, and
25
the second one is in the seventh grade.
1251
1
Q
Have you ever testified in court before?
2
A
No.
3
Q
Dr. Kantak, when and where did you get your
4
training in how to do circumcisions?
5
A
At the University of Missouri, Columbia.
6
Q
Who taught you that?
7
A
His name was Dr. Avery, the pediatrician.
8
Q
And is the technique that you used the one that
9
you learned in your residency training?
10
A
That's the only technique I know.
11
Q
Were you trained to use the Gomco clamp?
12
A
That's right.
13
14
Q
Have you ever had any training in how to use other
devices?
15
A
No.
16
Q
Do any other pediatricians at MeritCare who work
17
in the Family Birth Center use anything other than the
18
Gomco, to your knowledge?
19
A
Not to my knowledge.
20
Q
Doctor, I want to ask you a few questions about
21
the circumcision itself to follow up on Mr. Baer's questions
22
yesterday.
23
circumcisions?
Have you ever had parents ask if they can watch
24
A
They have.
25
Q
And what's been your response?
1252
1
A
I usually discourage it, but I have allowed also,
2
probably some -- a few who have medical background, I have
3
allowed it.
4
Q
5
We have heard some discussion about the upper body
of the baby being swaddled.
Do you recall that?
6
A
Yeah.
7
Q
And can you describe what the person doing that
A
8
9
is?
10
Q
What's the purpose of the swaddling of the baby's
11
upper body?
12
A
Well, the babies are in the room, where they're
13
nicely cuddled.
14
delivered also, we always keep them well cuddle like, so
15
when we put them on the board, on the circumcision board,
16
it's always nice if they are cuddled, so we always put a
17
nice blanket and cuddle them so that they feel secure there.
18
Q
And as you people know, when they are
Mr. Baer asked you some questions about using a
19
circumcision board.
20
this procedure?
21
A
Why is a circumcision board used for
I do not know how to do the circumcision without a
22
circumcision board.
We have to keep the baby in a position
23
where we can manipulate and do the circumcision.
24
Q
Do you use sterile technique for circumcisions?
25
A
1253
1
2
Q
I am sorry.
Do you use sterile technique when you
do a circumcision?
3
A
Yes.
4
Q
And would you tell the jury why you use a Gomco
5
clamp?
6
A
7
What's the purpose of using that?
The Gomco clamp has been the safest one to my
understanding.
And that is what was taught to me.
And when
8
I came here, everybody also followed the same procedure.
9
I just have come to that position.
10
11
12
13
I did not go for any
other changes.
Q
What purpose does the clamp serve?
What does it
help you accomplish?
A
It accomplishes in having less trauma to the penis
14
when you are doing it, less chances of the trauma, the
15
hemostasis is maintained good.
16
bleeding.
17
18
So
Q
For instance, you get less
There were some references to a safety pin that
you used.
19
A
Yeah.
20
Q
Does that come as part of the sterile pack?
21
A
Yes.
22
Q
And are there some other pediatricians who use a
23
safety pin also?
24
A
I think so.
25
Q
And has that been -- is that a technique that has
1254
1
been described in the medical literature for circumcision?
2
A
Yes.
3
Q
Do you remember where you first heard of that
4
technique being used?
5
A
In fact that technique was taught to me by one of
6
my colleagues here when I came in -- you know, when I -- I
7
was taught not to -- without pain.
8
here, one of the physicians just showed me how it is nicely
9
done.
10
11
Q
But then when I came
Dr. Kantak, did you use anesthesia for the
circumcision on Josiah Flatt?
12
A
Yes.
13
Q
And how do you know that you did?
14
A
Because it is documented, risks of local
15
anesthesia, circumcision -- and the circumcision thing
16
discussed on 3-6-97.
17
lidocaine has been used.
18
19
Q
Plus, on my note, it says, one percent
Have you found a dorsal penile nerve block to be
effective for the circumcisions that you performed?
20
A
It's very effective.
21
Q
And I think you said yesterday that you use a
22
single prick when you do the dorsal penile nerve block?
23
A
That's right.
24
Q
Will you explain how you get sufficient coverage
25
from the anesthesia using that technique?
1255
1
2
A
Well, the dorsal penile nerve that we are
anesthetizing just comes right at the -- you know, it goes
3
down right at the root of the penis.
4
then it shows less -- more -- a lot of branches or
5
anastomosis lower down.
6
o'clock position.
7
very easy for me to manipulate once I push in some little
8
bit flow of the local anesthesia.
9
inside and it gives me very good results.
10
And it just goes and
So when I go there I go around 2:00
And the baby is small so it's -- becomes
Then I can nicely go
When I first started using local anesthesia, I
11
used to use two pricks, but then with, you know, with your
12
continuous technique, you can maneuver a little bit here and
13
there.
14
out good for me with one prick.
15
16
Q
And that is what I have been doing.
And it works
You did perform a circumcision on Josiah Flatt on
March 7, correct?
17
A
That's right.
18
Q
And at whose request did you do that?
19
A
At the request of the mother.
20
Q
Were there any complications during the
21
circumcision?
22
A
The child does not show any complications.
23
Q
And you used anesthesia?
24
A
Yes.
25
Q
Doctor, is it your standard of practice to discuss
1256
1
with parents every reported risk of circumcision?
2
A
No.
3
Q
And, to your knowledge, is that the standard of
4
5
6
7
8
9
practice of your pediatrician colleagues at MeritCare?
A
Yes.
I mean, they don't -- just like they don't
go over each and every detail, no.
Q
And what has been your own experience regarding
whether you've seen complications of circumcision?
A
In my experience in 15 years at MeritCare, I have
10
not seen any complications of circumcision either with me or
11
with my colleagues that we have discussed with.
12
Q
Mr. Baer asked you some questions about a document
13
which is marked as Exhibit 35 concerning medical records.
14
Do you recall that, Doctor?
15
A
Was it 35 or was it -- yes.
16
Q
And he asked you about the section called
17
"operative reports"?
18
A
Yeah.
19
Q
Has it ever been your understanding that the
20
requirements for documenting operative reports apply to this
21
procedure that you do in the newborn nursery?
22
A
No.
23
Q
Has it ever been brought to your attention by
24
anyone that the type of documentation that you did in this
25
chart for this circumcision is not sufficient to meet
1257
1
hospital requirements?
2
A
Nobody has brought it to my attention.
3
Q
Mr. Baer asked you some questions about an answer
4
to an interrogatory about the informed consent information
5
that you provided.
6
show you mine.
7
MeritCare Medical Center's answers to Plaintiff's
8
interrogatory No. 27(b).
I don't think you have a copy.
I will
This is Defendant Sunita Kantak, M.D. and
Do you recall that?
9
A
Yeah.
10
Q
Doctor, let me just read this -- your complete
11
answer, and you tell me if that is the correct answer that
12
you provided back in 2000.
13
general pediatric exam of the baby with Ms. Flatt.
14
her that I didn't know whether she wanted her son
15
circumcised or not, and it was up to her.
16
it is not routinely recommended and there were no medical
17
indications for it.
18
would be done the next day.
19
Lidocaine as a local anesthesia, that it has possible side
20
effects including seizures but that we use a very small
21
amount without any preservatives, and have used it without
22
any problems.
23
not a big one, and that whenever the skin is cut there are
24
some risks; that the risks include bleeding which could
25
require suturing, but that I usually did not get any
"I reviewed the results of my
I told
I explained that
I told her that if she wanted it, it
I explained that we use
I explained that it is a procedure, although
1258
1
bleeding, the risk of infection, even though we take
2
precautions by using sterile materials, and the risk of
3
urethritis and urethral stricture later in life.
4
that there is a lot of controversy over circumcision, that
5
it is considered a cosmetic procedure by some.
6
for social reasons, some for religious reasons.
7
report they have a loss of sensation and loss of sexual
8
pleasure and get a reconstruction of the skin.
9
pediatricians and urologists say that the benefits of
I told her
Some do it
Some people
Some
10
circumcision include greater ability to keep the area clean,
11
and less risk of urinary tract infections and of kidney
12
failure later in life.
13
circumcision booklet and told her to read it, and indicated
14
that after reading it she would be asked to sign a written
15
consent, which she later did."
16
Is that your answer?
I gave her the MeritCare
17
A
That was my answer.
18
Q
Dr. Kantak, do you believe that you followed
19
accepted standards of medical practice in your care of
20
Josiah Flatt?
21
A
Oh, yes.
22
MS. VOGLEWEDE:
23
THE COURT:
That's all I have.
Mr. Baer.
Thank you.
24
25
1259
1
RECROSS-EXAMINATION
2
BY MR. BAER:
3
Q
Dr. Kantak, when you answered the interrogatory
4
that Ms. Voglewede just read into the record, you knew you
5
were being sued at that time, correct?
6
A
I mean it was in the paper.
That's when --
7
actually I came to know the date came in the paper in the
8
afternoon.
9
Q
Sure.
10
A
One of my colleagues told me that you are in the
11
paper, and that's when I came to know, so I went home and
12
then --
13
Q
You knew you were being sued?
14
A
Yeah.
15
Q
You know that the complaint was that you did not
16
It was in the paper.
give enough information, correct?
17
A
I think so.
18
Q
And when you answered the interrogatories on June
19
of 2000, you knew that the claim of the plaintiff was that
20
you didn't give enough information, correct?
21
A
That was the claim, yes.
22
Q
Now -- and since the lawsuit was filed -- by the
23
way, that was in December of 1999, wasn't it?
24
A
Yes.
25
Q
Since the lawsuit has been filed, you have
1260
1
continued to do your rounds when you're on call for all the
2
babies in the nursery, correct?
3
A
That's right.
4
Q
So from December 1999 through February of 2003,
5
6
you're on call about four to five weeks a year, correct?
A
No, I have to change that, because we have more
7
pediatricians now, so the more -- the older pediatricians go
8
later -- they don't go that much in the nursery.
9
Q
So you don't do as many rounds now, correct?
10
A
Less.
11
Q
So how many times have you done rounds since
12
13
14
December of 1999, Dr. Kantak?
A
I cannot tell you exactly how many because I don't
have my schedule in front of me.
15
Q
What's your estimate?
16
A
I can't even estimate.
It all depends.
I know
17
that in 2001, I was put quite often -- more often than I was
18
supposed to be because we had a shortage of pediatricians so
19
I -- and everything needs to be covered, so I used to go
20
there more often.
21
there probably, I will say, when I'm on call, two weeks ago,
22
I was there for two days.
Like, in 2003, I might have just gone
Yeah.
23
Q
How about 2002?
24
A
As I said, I cannot tell you, but I have been
25
there.
1261
1
Q
Okay.
2
A
When I came in, I don't go through each one.
3
4
month to month.
Q
Okay.
So your memory is not that good?
It's
So I can't tell you exactly the number.
And, Ms. Kantak -- or, Dr. Kantak, I
5
understand your testimony to be that your routine is that
6
when you are on call, you go to the nursery, and you do
7
examinations of all babies in the nursery, correct?
8
A
That I need to do, yes.
9
Q
Sorry?
10
A
That I need to do, the examinations I do, yes.
11
Q
Are there babies that you don't need to do
12
13
14
15
examinations on?
A
If they're not my babies, they're not -- or family
practice, then I don't do it.
Q
So there are babies in there that are not
16
17
18
19
MeritCare babies, correct?
A
They are MeritCare babies, but the physician
taking care of them could be another family practitioner.
Q
Dr. Kantak, you indicated that page 3 of Exhibit 6
20
would be the document that you would look to to see who the
21
physician is for the baby, correct?
22
A
That's right.
23
Q
What does it say here, baby's physician?
24
A
It says Dr. Kantak on the first one.
25
Q
What does it say, baby's physician?
1262
1
A
Bro.
2
Q
Thank you.
3
A
Kantak.
4
Q
It said Pitts first, and then Kantak, correct?
5
A
It says Pitts, which is gone, then MeritCare
6
Bro never does the exam.
What does it say, mother's physician?
pediatrician, Kantak.
7
Q
So it says mother's physician is Kantak, correct?
8
A
That can happen.
9
Q
That can happen, right?
10
A
Yeah, because my name is here, this is a baby.
11
Bro doesn't see the baby, he doesn't do this exam.
12
ever see him doing the exam.
13
Q
And baby's physician is Bro, correct?
I don't
14
A
Yeah.
That I presume that it was the mother's
15
physician.
16
Q
So that must be a mistake in the records?
17
A
It's not called mistake, because my name on the --
18
the patient's thing is -- is Kantak, Sunita, if you see the
19
chart.
20
Q
If it isn't a mistake, why was it crossed out?
21
A
Because Pitts was not the physician, so they wrote
22
it as Sunita Kantak, because I am the one in the nursery.
23
Can you see the top part also, Kantak, Sunita?
24
25
Q
So where Pitts was written in there, that wasn't a
mistake?
1263
1
A
That was written down by the nurse.
2
Q
So it's a mistake?
3
A
She must have said, so when they come in, they
4
write Pitts.
5
the babies.
6
Q
7
Then they change it because Pitts does not see
But the nurse wouldn't get the name Pitts out of
thin air, would she, Dr. Kantak?
8
A
If the mother said right there --
9
Q
Pitts?
10
A
Pitts.
I don't know what mother said or how that
11
12
all went.
Q
I cannot tell you that.
Isn't the name Pitts in the mom's records,
13
identifying the baby's physician?
14
MS. VOGLEWEDE:
15
of foundation.
16
17
Objection, argumentative and lack
THE COURT:
Q
Sustained.
Let's get back, Dr. Kantak,
18
again to the routine that you have.
And you indicated that
19
your routine would be that you would go to the nursery and
20
do all of the baby exams that were MeritCare pediatrician
21
babies, correct?
22
A
That's right.
23
Q
And at least as you have testified in this trial,
24
25
Josiah Flatt was deemed to be a MeritCare baby, correct?
A
My name was there on the baby's bassinet.
1264
1
Q
So he was a baby -- a MeritCare baby, correct?
2
A
MeritCare pediatrician baby.
3
Q
All right.
And so when you would come in there on
4
March 6, there were babies in there that were born on March
5
5, I presume, correct?
6
A
Yeah, whom I had seen probably if they are mine.
7
Q
Then you would do another evaluation on March 6,
8
correct?
9
A
That's right.
10
Q
And same way with Josiah Flatt?
If you would have
11
done the first baby exam on March 6, 1997, you would have
12
done another one on March 7, correct?
13
A
That's right.
14
Q
What were your findings of your exam of Josiah
15
Flatt on March 7, 1997, Dr. Kantak?
16
A
Can I see the chart?
17
Q
Sure.
18
A
It's not on there.
19
Q
All right.
20
A
Physical exam normal.
21
Q
You're talking about the surgical note?
22
23
24
25
Is that
what you're talking about?
A
The surgical note.
And then it says, PE; that is
physical exam normal.
Q
So this was -- you did the physical exam after the
1265
1
2
circ?
A
I mean I wrote it, yeah.
That is how -- I
3
document it that I have done it.
I could have done it after
4
the -- but usually I do it before, you know, because I don't
5
want them to be moving more.
6
Q
There's nothing on page 3 of that record that
7
shows you even did a physical exam of Josiah Flatt when you
8
did rounds, is there?
9
A
This is the one I have here on 3-6.
10
Q
On 3-6?
11
A
On 3-6.
12
Q
The only evidence of an exam on 3-7 is your
13
surgical note, correct?
14
A
On 3-7, there's physical exam normal.
15
Q
The only evidence of any contact with Josiah Flatt
16
on 3-7 is your surgical note, correct?
17
A
Surgical note, plus physical exam normal.
18
Q
Okay.
Ms. Voglewede talked to you about the
19
standing orders, Dr. Kantak.
20
standing orders, did you?
And you didn't date those
21
A
The nurse's date is already there.
22
Q
Did you date them?
23
A
We don't date them.
24
MR. BAER:
Nothing further.
25
THE COURT:
Ms. Voglewede.
1266
1
2
3
RECROSS-EXAMINATION
BY MS. VOGLEWEDE:
Q
Dr. Kantak, you mention that there may be babies
4
who have MeritCare family practice physicians caring for
5
them in the nursery; is that right?
6
A
That's right.
7
Q
And how is that situation different from people
8
9
who are using a MeritCare pediatrician?
A
Well, when the mother comes in, she just says, Dr.
10
Mastel or Dr., say, Tinguely or whoever is pediatrician, the
11
family physician is there.
12
they ask, Is it MeritCare pediatrician or not.
13
is the doctor, she just mentions them and so they write it
14
on the --
15
Q
They just tell me that it's -Then whoever
Do the family practice physicians at MeritCare
16
come in and make their own rounds, treat their own babies in
17
the nursery?
18
A
Some of them do.
19
Q
And do you cover for some of them?
20
A
Yes.
21
Q
Okay.
22
And for parents who are using MeritCare
pediatricians, would you cover all of those babies?
23
A
All the babies, yeah.
24
Q
Doctor, the comments that you said you make to
25
parents about some children grow up to sue their parents
1267
1
when they're adults about a circumcision, was that something
2
that you had actually heard about before you came to
3
MeritCare?
4
A
Yeah.
When I was in the Missouri in 1988,
5
doing -- during my -- 1985 to '88, during that residency, we
6
didn't do the circumcisions.
7
heard that it was one -- there was one, you know, man who
8
had sued their parents.
9
heard about it.
And so we were taught -- we
I don't know exactly, but I had
For doing the circumcision to him.
So when
10
I came in and I started doing -- it was my thing, like I
11
used to just point out that in my talks.
12
13
MS. VOGLEWEDE:
That's all I have, Doctor.
Thank
you?
14
THE COURT:
15
MR. BAER:
Mr. Baer.
Your Honor, I just have a couple
16
points, but they are not in response to this, but I would
17
rather not recall this witness.
18
that I want to --
19
20
THE COURT:
any objections.
21
So I just have two points
Well, proceed.
We'll see if we have
Go ahead.
FURTHER RECROSS-EXAMINATION
22
BY MR. BAER:
23
Q
24
treatment.
25
A
I asked you if you signed the orders for
Orders for treatment?
1268
1
Q
The standing orders.
And you said --
2
A
Standing orders.
3
Q
And you said, no, did you not?
4
A
I did.
5
Q
Or date?
6
A
I may not have.
7
Q
Then you said the nurses had dated it.
You did not date?
I don't remember now.
Could you
8
check and see whether or not there is a date on the standing
9
orders, Dr. Kantak.
Look on pages 11 through 13.
10
A
Looks like they don't have it.
11
Q
There's no date there.
12
13
There is a date for the
discharge, though, isn't there?
A
There is somebody who -- whose nurse is this?
14
Whichever is the nurse.
15
Brass or Doreen Brass.
I don't know.
Doreen Brass.
D.
16
Q
There is no date?
17
A
There is no date.
18
Q
Then one other matter is the dorsal penile nerve
19
block.
20
correct?
You said you do it at the 2:00 o'clock position,
21
A
If you say 2:00 o'clock, yeah.
Yeah.
22
Q
And you heard the testimony about Dr. Shoemaker
23
and Dr. Kaplan sitting on the committee to study the
24
circumcision issue?
25
A
Yeah.
1269
1
2
Q
And the statement, doesn't it address the issue of
dorsal penile nerve blocks?
3
A
I think so.
4
Q
It says a 27-gauge needle is used to inject the
5
point -- 0.4 milliliters of one percent lidocaine, to be
6
administered at both the 10:00 and 2:00 o'clock positions at
7
the base of the penis.
8
A
That's right.
9
MR. BAER:
Nothing further.
10
THE COURT:
Ms. Voglewede.
11
12
13
14
15
FURTHER RECROSS-EXAMINATION
BY MS. VOGLEWEDE:
Q
Dr. Kantak, how do you get the same coverage when
you make one injection site?
A
That's a baby so baby has a very small area.
So
16
putting ten and two are very, very nearby.
17
ten and two like that in a big child, no, in a big adult.
18
So ten two -- as I said earlier I used to use two pricks,
19
but with one prick now, I am getting a good, good control of
20
anesthesia.
21
Q
22
23
24
It's not like
So I use that.
How do you do that?
What technique do you use
with that one injection?
A
syringe.
We have used a tuberculin syringe, like small
We have used it since I came there.
So we -- I
25
put in a small -- inject a small amount, then slowly as I
1270
1
inject I go in and manipulate my area with that small
2
needle.
That works out good.
3
MS. VOGLEWEDE:
Thank you.
4
THE COURT:
5
MR. BAER:
6
THE COURT:
7
We're going to take a recess.
Mr. Baer.
Nothing further.
You may step down.
8
recess until 9:35.
9
jurors, remember my admonition.
10
Nothing further.
We will be in
It's a little bit shorter recess.
So,
Court is in recess.
Jurors, you are excused.
11
(Recessed at 9:19 a.m. until 9:37 a.m., the same
12
day, at which time the following proceedings were continued
13
in open court, in the presence of the jury:)
14
MS. VOGLEWEDE:
Your Honor, one small matter.
I
15
would like to introduce the curriculum vitae of Dr. Kantak
16
without recalling her, if possible.
It's marked as Exhibit
17
116.
It was Exhibit 3 to her
18
deposition.
It was produced in discovery.
19
MR. BAER:
20
THE COURT:
21
Mr. Baer.
We have no objection, Your Honor.
Defendant's Exhibit 116 is received.
22
23
MR. BAER:
Plaintiff would call Anita Flatt for
brief redirect.
24
25
1271
1
ANITA FLATT,
2
having been previously sworn, was examined and testified
3
further on her oath as follows:
4
REDIRECT EXAMINATION
5
BY MR. BAER:
6
Q
During the course of the examination of the
7
nurses, Ms. Flatt, there were a number of additional
8
brochures that were produced, Exhibit 121 being one of them,
9
and -- there we go.
121, 122 and 123.
Do you recall ever
10
seeing these brochures, Ms. Flatt, during any time that you
11
were at MeritCare Hospital?
12
A
No, I don't.
I do recall it was either the end of
13
December of this past year or beginning of January that you
14
gave them to me, had received them from Ms. Voglewede and
15
Ms. Lord, that they were discussing these, and I do not have
16
them.
17
Q
And showing you the original now -- we have an
18
original copy of the circumcision brochure, and before that,
19
we only had a photocopy in a different format.
Taking a
20
look at the original, had you ever seen that brochure in
21
amongst your personal belongings that you saved from your
22
hospitalization for the birth of Josiah?
23
A
No, I did not.
24
Q
When did you first see that brochure?
25
A
We saw a copy, if I recall correctly, at Jim and
1272
1
I's deposition, because we both looked at it then.
And like
2
Jim testified to, if we would have had it, we would have
3
reviewed it.
4
Q
And Dr. Kantak this morning testified to the
5
procedure that she normally uses.
On March 6, 1997, you do
6
recall a physician coming to visit you, do you not?
7
A
Absolutely.
8
Q
You described -- will you describe that?
9
A
Dr. Bro, Dr. Walter Bro, he came in with -- I
10
don't know if it's LPN, RN, it was a female with him.
11
had a chart in his hand.
12
Bro, I really have a lot of respect for him.
13
He
And I have a good rapport with Dr.
And I went into -- Oh, Dr. Bro, I went into the
14
delivery not knowing Lesteberg, I was happy to see him.
Jim
15
was in the room when Dr. Bro came.
16
he just said, Anita, you have a very big, healthy baby boy.
And he smiled at me and
17
And he talked about that I am going to be seeing you in six
18
weeks.
19
Doctor Bro was there.
I know they don't have it
20
in the records.
21
catch it in the video because I hadn't watched that video
22
since before Jim died.
23
sister-in-law, because she had Dr. Bro for one of her
24
children.
25
Q
And not until the week before trial did I
And I'm sitting there talking to my
I'm talking about him being in that morning.
And you said he had a chart with him and he was
1273
1
2
describing the condition of Josiah?
A
Yes.
He said he's very -- he's a big, healthy
3
baby boy.
4
rate and everything else, he's okay.
5
Q
He was reassuring me, even with losing his heart
Now, the last couple days, we have heard testimony
6
from the defense experts, including Dr. Kaplan and Dr.
7
Shoemaker, about various risks associated with the
8
circumcision procedure.
9
or not Dr. Kantak, to your recollection, discussed excessive
10
11
12
13
14
And I just want to ask you whether
bleeding as a risk of circumcision?
A
No.
Dr. Kantak did not discuss that with me at
all on the 7th.
Q
If she had discussed it, would you have authorized
the circumcision?
15
A
I would not have if I would have known the risk.
16
Q
Did Dr. Kantak talk to you about concealed penis
17
as a complication of circumcision?
18
A
No, she did not.
19
Q
If you -- if she had talked to you about that,
20
would you have consented to it?
21
A
Neither Jim nor I would have, no.
22
Q
Did Dr. Kantak talk about skin bridges as a
23
potential risk associated with the circumcision?
24
A
No, she didn't.
25
Q
Would you have consented to it if she had told
1274
1
you?
2
A
No, I wouldn't have.
3
Q
Did Dr. Kantak talk to you about adhesions as
4
being a risk of circumcision?
5
A
No.
6
Q
If she had talked to you about adhesions, would
7
8
9
And Joe suffered from them.
you have consented to it?
A
No.
And I would have had more questions of -- I
would have needed explanations of what these things were.
10
Q
Did Dr. Kantak talk to you about the risk of
11
asymmetry?
12
13
A
And that would have been a big one for Jim
and I to discuss as well.
14
15
No.
Q
Would you have consented knowing what you know now
about asymmetry and adhesions?
16
A
Absolutely not.
17
Q
Did Dr. Kantak talk to you about major skin loss
18
as a result of infections?
19
A
No.
20
Q
Did she talk about necrotizing fascitis from
21
infections?
22
A
No.
23
Q
Did she talk about severe permanent disability or
24
And I would have asked what that meant.
death resulting from major infections as a risk action?
25
A
No.
That would have been -- anything with death
1275
1
would have piped myself up and would have went into the line
2
of, well, what does he gain.
3
I'm his mom, his dad needs to know.
If there was any of
4
that risk to him, we needed to know.
We needed to know.
5
Q
With anything, I need to know,
Did Dr. Kantak talk about meatitis or any
6
inflammation of the urethral opening regarding risks of the
7
circumcision?
8
9
A
was.
No.
And I would have had to have asked what that
Never knew about it till after.
10
Q
Did she talk about chordee or inclusion cysts or
11
lymphedema or fistulas as potential risks of the
12
circumcision?
13
A
14
meant.
15
Q
16
No.
Again, I would have needed to know what that
Did Dr. Kantak talk to you about necrosis
resulting from the circumcision as a risk?
17
A
No.
18
Q
Did Dr. Kantak talk to you about hypospadias or
19
epispadias as potential risks from the circumcision?
20
21
22
No.
A
No.
And I would have had to have asked what that
Q
You have heard the description now in the last
was.
23
couple of days from Dr. Kaplan and Dr. Shoemaker about what
24
those are.
25
potential risk?
Would you have wanted to know that as a
1276
1
A
Absolutely, we would have wanted to know.
2
Q
Did Dr. Kantak talk to you about the potential
3
risk of impotence?
4
A
No, she didn't.
5
Q
Did Dr. Kantak talk to you about the use of a
6
Circumstraint?
7
8
9
10
A
No.
Found out that -- Jim found that out on the
Internet and stuff, and that was shocking to us.
Q
Would -- if that -- the procedure had been
described to you, would you have consented to the procedure?
11
A
No, Jim and I wouldn't have.
12
Q
Did Dr. Kantak talk to you at all about what the
13
function of the foreskin was?
14
A
No.
15
Q
Did she describe that the foreskin was naturally
16
adherent to the foreskin and had to be torn away before they
17
could remove it?
18
A
No.
19
Q
Were you aware of that before you did research on
20
I did not realize that, no.
the Internet about the anatomy of the penis?
21
A
No, I wasn't.
22
Q
And Dr. Kantak testified this morning that she was
23
in your room on March 6, 1997, talking to you about
24
circumcision and hepatitis B vaccine.
25
being there at all on March 6, 1997?
Do you remember her
1277
1
A
No.
And I'm glad we had the video.
She wasn't
2
there.
3
questioned about hepatitis B, my husband signed that
4
consent.
And after reviewing and clarifying after being
And according to their records, it was at 9:30 at
5
night is when they did it.
6
that form.
7
Q
Of the hepatitis B?
8
A
Yeah.
9
I don't have any recollection of
Jim signed that at some point.
And he was
there in the morning, till late morning on the 6th.
He was
10
there when Dr. Bro was there.
11
to my sister-in-law about that morning.
12
later on in the morning -- later morning till right after
13
the noon hour.
14
He was videotaping me talking
And he was gone
Q
And the first time you saw Dr. Kantak was on the
16
A
Me?
17
Q
Yes.
18
A
Yes.
19
Q
And Dr. --
15
20
21
7th?
as far as you know, Jim never saw Dr.
Kantak?
A
Jim did not see when -- until the deposition, that
22
was when he first met her.
23
November of 2000?
That was, I believe -- was it
24
Q
November 15, 2000, yes.
25
A
That sounds right.
1278
1
MR. BAER:
Thank you.
Nothing further.
2
THE COURT:
3
MS. VOGLEWEDE:
4
5
6
Cross-examination.
Thank you.
RECROSS-EXAMINATION
BY MS. VOGLEWEDE:
Q
Ms. Flatt, you're not representing to the jury
7
that the videotape that the jury watched captured everything
8
that happened from March 5 through March 8, are you?
9
A
It doesn't capture everything.
And you guys will
10
notice -- Jim wouldn't film the shot that Joe had at birth.
11
I remember Lori was filming and he -- you see it go out,
12
they're getting his leg ready.
13
filmed.
14
which times are filmed.
15
16
Q
No, not everything is
But if you watch the times on there, you'll see
Ms. Flatt, we saw a video of something like 30 to
40 minutes in total length, correct?
17
A
18
right.
19
Q
It was less than an hour, correct?
20
A
I believe so, yes.
21
Q
It started on March 5 and it ended on March 8, the
22
23
I don't know how long it was.
You're probably
day that you took the baby home, correct?
A
Yeah, I believe it -- was it at nine something
24
when I was in contractions on March 5 a little bit?
And
25
then it would have started up again on the 6th, right after
1279
1
I delivered him.
2
so it starts and ends and starts and ends.
3
Q
Then it ended and we slept and then it --
So from March 5 through March 8, when you took the
4
baby home, it captured approximately an hour of that
5
three-day period, all told, correct?
6
A
Probably -- you're probably right, yes.
7
Q
And of the two visits that you do recall Dr.
8
Kantak made to your room, neither of those are shown on the
9
video, correct?
10
A
No, because Jim wasn't there.
11
Q
And the visit that Dr. Bro made to your room is
12
He did the camera.
not shown on the video, correct?
13
A
No, it is not.
14
Q
Ms. Flatt, you knew that Dr. Bro was your doctor,
15
16
not Josiah's doctor, correct?
A
It was the doctor I picked -- no, I -- I'd have to
17
say, incorrect.
An OB-GYN treats you and the pregnancy.
18
I looked at all through the pregnancy not knowing it was a
19
boy or girl for sure, but I definitely thought he was
20
treating my baby as well.
21
Q
During the pregnancy?
22
A
Absolutely.
23
Q
And you knew that when the baby was born, you
24
25
So
would select a doctor for the baby, true?
A
Yes, I knew I could get a pediatrician or family
1280
1
practitioner, and I went with Mastel because he came
2
recommended.
3
Q
4
5
And the name that you gave the nurse when you got
to the hospital was Dr. Bruce Pitts, true?
A
Yes, because I hadn't made that decision.
And my
6
understanding, before internal medicine, all growing up, Dr.
7
Pitts was the family practitioner.
8
9
10
11
12
13
14
Q
You're not suggesting that it was Dr. Bro who you
thought would be doing the new baby examination and caring
for the baby in the nursery, correct?
A
I thought he would be there unless it was his
surgery day, I did.
Q
And he was.
And be there for the delivery, but not to care for
the baby after the delivery, true?
15
A
I guess I never thought of it.
16
Q
And you have searched your belongings at home, Ms.
17
Flatt, correct?
18
A
I have searched the cedar chest, yes.
19
Q
To see what you saved from the hospital?
20
A
Yes.
21
Q
And you do not have Exhibit 105, the circumcision
22
book?
23
A
I do not.
24
Q
And you do not have Exhibit 121, the postpartum
25
book?
1281
1
A
I do not.
2
Q
You do -- you do not have Exhibit 122, the
3
"Feeding Your Baby" book?
4
A
No, I do not.
5
Q
Nor Exhibit 58, the "Infant Care" book?
6
A
No, I do not.
7
Q
Nor "Breastfeeding Your Baby," Exhibit 123?
8
A
No, I do not.
9
Q
Nor do you have the original of Defendant's
10
Exhibit 141, which is the patient teaching and discharge
11
record?
12
A
No, I do not have that.
13
Q
Nor do you have your hepatitis B vaccine sheet,
14
15
Exhibit 124, correct?
A
No, I do not.
16
MS. VOGLEWEDE:
17
THE COURT:
18
MR. BAER:
19
THE COURT:
20
MR. BAER:
21
22
That's all I have.
Mr. Baer.
Nothing further.
You may step down.
Your Honor, at this time plaintiff
rests.
THE COURT:
Counsel, will you approach the bench,
23
please.
24
25
(Discussion at the bench, out of the hearing of
the jury and the court reporter.)
1282
1
THE COURT:
Members of the jury, at this time the
2
attorneys and I have some legal matters to discuss, so I am
3
going to excuse you until approximately 10:20.
4
the bailiffs when we're ready for you.
We'll notify
5
Jurors, you're excused.
6
(Continued in open court, out of the presence of
7
the jury:)
8
9
THE COURT:
Let the record show the jury has been
excused.
10
Defense counsel, you've asked to be heard.
11
MS. LORD:
Pursuant the Rule 50 of the North
12
Dakota Rules of Civil Procedure, defendants request that the
13
Court enter judgment as a matter of law, formerly known as a
14
directed verdict under Rule 50.
15
viewed in the light most favorable to the party against whom
16
the motion is made, leads to one conclusion as to the
17
verdict about which there can be no reasonable difference of
18
opinion, the court has the authority and the obligation to
19
enter judgment -- final judgment as a matter of law.
20
Neither the law nor the evidence would permit a reasonable
Whether the evidence, when
21
22
jury to fined in favor of the plaintiff in this case.
Your Honor, under any duty of disclosure, under
23
any duty of disclosure for informed consent in North Dakota,
24
the plaintiff must show that an undisclosed known material
25
risk actually materialized into an injury.
Here none has.
1283
1
We've cited the law to the Court in both the
2
motion for summary judgment as well as in the brief in
3
support -- or in opposition to bifurcation.
4
Dakota, where there was a consent for the procedure, the
5
North Dakota Supreme Court has made it clear that a claim is
6
deficient unless there's been an undisclosed risk of the
7
procedure that has materialized into an injury.
8
THE COURT:
9
MS. LORD:
In North
What's your citation for that?
Both Jaskoviak, the Winkjer decision,
10
the Wasem decision, all support that.
11
it and the facts of each of those cases supports it.
12
risks that are being claimed in this case, Your Honor, are
13
the loss of the foreskin.
14
Jaskoviak speaks to
The
Under Winkjer and Jaskoviak, there's no need to
15
discuss risks that are common knowledge as inherent in the
16
procedure.
17
not a risk of the procedure.
Loss of the foreskin is the procedure.
It is
Dr. Cold testified that loss
18
of the foreskin is the procedure.
Dr. Van Howe testified
19
that loss of the foreskin is the procedure.
20
Flatt and James Flatt knew that the foreskin would be
21
removed as a result of the circumcision procedure, and they
22
knew it was a choice, and they wanted it done.
This is not
23
a case of a baby being circumcised by mistake.
Anita Flatt
24
and James Flatt knew the procedure was going to be
25
performed.
Both Anita
1284
1
In a review of the case law that's discussed,
2
circumcision cases, we do not have any in North Dakota, but
3
across the country they fall into two categories, one
4
category being where it was a mistake, where the wrong child
5
was circumcised.
6
other category of cases are when an actual risk has
7
occurred.
8
foreskin has been sufficient to support a claim for informed
9
consent because loss of the foreskin is the procedure, it's
10
11
That is not the case we have here.
The
There has not been one case where loss of the
not a risk of the procedure.
The plaintiffs are also claiming loss of sexual
12
function or sexual pleasure.
This is not a known risk of
13
the procedure that has materialized.
14
testimony, he agreed that the effect of circumcision on
15
sexual pleasure or sexual function has not been well
Dr. Cold, his
16
studied.
17
function or sexual pleasure to a reasonable degree of
18
medical certainty or probability, which is required by our
19
North Dakota Supreme Court in Kunnanz v. Edge.
20
515 N.W.2d 167, 1994 decision.
21
He did not state any opinion regarding sexual
Citation,
Nor could Dr. Cold predict whether or not Josiah
22
Flatt will have a satisfactory sex life.
In both the
23
summary judgment brief and the bifurcation brief, we cited
24
the Court to the law regarding speculation on damages.
25
Van Howe did not even address sexual function or sexual
Dr.
1285
1
pleasure during his testimony.
2
Josiah Flatt has experienced any injury due to sexual
3
function or sexual pleasure.
4
has there been any testimony that Josiah Flatt has or will
5
experience it.
6
There's been no support that
It's not medically proven nor
Another risk that has been discussed by the
7
plaintiffs are adhesions.
Adhesions are not a material risk
8
of the procedure.
9
He did not testify at all about adhesions.
Dr. Cold did not testify about adhesions.
Dr. Van Howe, he
10
discussed adhesions, but under his own testimony concluded
11
that Josiah Flatt suffered no injury as a result of
12
adhesions, and agreed that adhesions are a natural process
13
where the remaining foreskin can reattach to the shaft of
14
the penis.
15
can resolve naturally on its own.
16
In his own testimony, this is not uncommon and
No expert, including Dr. Van Howe, has said that
17
Josiah Flatt had any injury, to a reasonable degree of
18
medical certainty, due to adhesions or that Dr. Kantak
19
breached any standard of care or practice in not disclosing
20
adhesions.
21
Another risk or result that the plaintiffs have
22
addressed is asymmetry.
Neither Dr. Cold nor Dr. Van Howe
23
even addressed asymmetry.
24
there's no objective standard regarding how much tissue to
25
remove during circumcision.
Dr. Cold testified in fact that
There's been no expert
1286
1
testimony to a reasonable degree of medical certainty that
2
Josiah Flatt was injured in any way due to asymmetry.
3
Another risk of the -- that the plaintiffs have
4
discussed in this case is pain.
5
not an undisclosed risk.
6
Dr. Kantak discussed pain with her, Dr. Kantak answered all
7
the questions that she had at that time, including about
8
pain.
9
requires that there be an undisclosed risk, a known risk
10
Anita Flatt herself testified that
Pain was not undisclosed.
that actually occurred.
The pain in this case is
Both Jaskoviak and Winkjer
That's required to uphold a claim
11
in North Dakota.
12
The other complications listed by Dr. Cold and Dr.
13
Van Howe never occurred.
14
get infection or experience amputation to the glans penis or
15
any other complication that the plaintiffs have addressed in
16
this case.
17
Josiah Flatt did not die, bleed,
There's a reason why the law requires this, Your
18
Honor.
19
law to require that plaintiff show that a risk actually
20
materialized into an injury.
21
22
There are good reasons and important reasons for the
THE COURT:
If not, where would we be?
Can you cite me in Jaskoviak to the
language that you're relying on?
23
MS. LORD:
24
In Jaskoviak, paragraph 13, the court is citing
25
Yes, Your Honor.
authorities involving -- citing authorities that rely on the
1287
1
risk actually materializing into an injury and cites to a
2
Louisiana decision for the principle that, quote, a
3
plaintiff must show the existence of a material risk, which
4
the physician failed to disclose, and a causal connection
5
between the disclosure failure and actual risks sustained.
6
That's at 6 -- page 6, citing the Guidry v. Neu decision, a
7
Louisiana Court of Appeals decision.
The Court cited
8
another authority for the recognized requirement that,
9
quote, plaintiff must establish nondisclosure of required
10
information, actual damage resulting from the undisclosed
11
risk, causation, and that reasonable persons, if properly
12
informed, would have rejected the proposed treatment.
13
Your Honor, I believe the Court cited the Buzzell
14
decision in addressing causation in the order for summary
15
judgment, but there's an additional link that the Buzzell
16
decision did not address because in Buzzell, that involved a
17
case where the patient had not consented whatsoever to the
18
procedure.
19
The wrong ear had been operated on.
In Winkjer and Jaskoviak, it says when there is a
20
risk that has not been disclosed, then a risk needs to
21
materialize into an injury for causation.
22
the facts of the three cases that we have in North Dakota
23
that address this, in Jaskoviak, there were allegations of
24
numbness, discoloration of the extremity, and the need to
25
wear support stockings as complications of the varicose vein
And if we look at
1288
1
surgery.
Those were complications that were addressed and
2
supported by expert testimony as complications of procedure.
3
In the Winkjer decision, that involved allegations
4
that cataracts formed from the use of iodine solution.
5
cataracts forming from the use of the solution were the
The
6
complications of the procedure.
7
In the Wasem decision, that involved paralysis
8
that allegedly resulted from a failure to remove dye from
9
the spinal canal following the procedure.
10
The paralysis was
the complication from the procedure.
11
In each case, it requires a risk that has actually
12
materialized into an injury, and that's where we get the
13
link from what is being discussed with the patient to an
14
injury and causation.
15
perhaps an example would be appropriate for why that is the
16
case.
17
patient goes home, does some research on the Internet and
18
finds out that gangrene or death could be a rare
19
complication from some case report that occurred years
20
previously, that patient could walk into court and say, I
21
was never told about gangrene or death, no complications
22
from the procedure occurred.
23
procedure could come in and say, I would never have it done,
24
and the courtroom doors would be open for that patient.
25
There needs to be that link.
And
Your Honor, any time a procedure is performed, if a
But that patient under this
That's not the legal standard.
If it were, open
1289
1
the floodgates to the courthouse.
2
standard, the law requires more.
It's not the legal
The more is that a risk
3
materialized into an injury.
4
THE COURT:
Does -- other than the cites that you
5
have given me from Jaskoviak in paragraph 13, are -- and
6
they're -- all the cites are to cases in other states.
7
there -- is there anything else in North Dakota case law
8
that talks about linking the risk to an actual injury?
9
MS. LORD:
Your Honor, I think that the Jaskoviak
10
decision talks about a causal connection.
11
decision.
12
duty, causation, and an injury.
13
talked about one aspect of causation.
14
The Winkjer
They all talk about the elements of breach of a
And the Buzzell decision
But if you look at the facts of the decisions,
15
it's very clear that a risk must materialize.
16
in the bifurcation brief, we cited to a number of other
17
jurisdictions in cites where they've all said the same
18
thing.
19
an undisclosed risk.
20
Are
Even under --
In order to have a causal connection, there must be
In the Canterbury v. Spence decision, which
21
defendants do not believe the Court has adopted Canterbury
22
v. Spence -- we do not urge the Court to adopt that case for
23
the rationale of that case on duty of disclosure.
24
that case, a case that we don't think the North Dakota
25
Supreme Court has adopted or should apply, even in that
But even
1290
1
case, it said that an unrevealed risk that should have been
2
made known must materialize for otherwise the omission,
3
however unpardonable, is legally without consequence.
4
And that is the whole point, Your Honor.
The
5
legal system, in order to recover for injuries, even in an
6
informed consent case, requires consequence for conduct.
7
There must be a consequence.
8
material risk, actually materialized into an injury.
9
that is a basis for judgment as a matter of law under any
Here, no risk, no known
And
10
duty of disclosure, whether the Court uses a duty of
11
disclosure under Canterbury v. Spence, which we do not urge,
12
or the professional standard, which we think would be
13
appropriate.
14
Your Honor, the plaintiffs have also failed to
15
show the other elements of an informed consent claim.
16
have addressed the two different standards that have been
17
talked about in the cases in Winkjer and in Jaskoviak.
18
I
We're kind of two ships passing in the night, and
19
there is an area where the parties agree, but we do not
20
think that the North Dakota Supreme Court has been clear on
21
what duty of disclosure should be applied; the professional
22
standard, which looks to the custom in the community, or the
23
patient standard, which talks about what a reasonable
24
patient would want to know.
25
But we urge the Court to apply the professional
1291
1
standard.
2
plaintiffs to support that any material risk of the
3
disclosure has occurred or that anything that Dr. Kantak has
4
discussed was inappropriate or that she should have
5
discussed anything further.
6
testimony on the duty of disclosure as far as what the
7
medical practice is from the plaintiff's perspective.
8
9
And there's been no expert testimony by the
There's been no expert
In any event, where the two standards meet, what
is -- and both Winkjer and Jaskoviak talk about this -- that
10
a physician is not required to inform a patient of risks
11
that are so remote as to be negligible, even where the
12
consequence may be severe, and is not required to inform the
13
patient of a very minor consequence, even though the
14
probability is high.
15
A duty to disclose can arise only if the physician
16
knew -- knew or should have known of the risk to be
17
disclosed.
18
all possible risks of danger of the proposed procedure but
19
only those that are significant in terms of their
20
seriousness and likelihood of occurrence.
21
to disclose risks of little consequence, those that are
22
extremely remote or those that are common knowledge as
23
inherent in the treatment.
24
disclosure the Court applies, that is common ground.
25
this case, there's no evidence to support that Dr. Kantak
And the physician is not required to disclose
There's no need
So no matter which duties of
And in
1292
1
breached any duty.
2
Ultimately, Your Honor, the standard is one of
3
reasonableness.
4
the Canterbury v. Spence or the majority position, the duty
5
of disclosure is one of reasonableness.
6
minority position, no reasonable jury could conclude that a
7
reasonable parent would consider the plaintiff's laundry
8
list of complications as significant or material in making
9
their decision.
10
Under any duty of disclosure, whether it's
And even under the
Furthermore, Your Honor, we briefed this issue as
11
well to the Court and cited a number of decisions in support
12
of summary judgment, Dr. Cold and Dr. Van Howe are not
13
qualified to testify in this case, nor were any of their
14
opinions stated to a reasonable degree of medical certainty
15
or probability as required by the North Dakota Supreme Court
16
in the Kunnanz decision.
17
The Flatts' informed consent case lacks
18
evidentiary and legal support for every element of the
19
claim.
20
deficient in order to grant judgment as a matter of law.
21
Deficiency on just one element is sufficient and
22
appropriate.
23
And this Court does not need every element to be
Furthermore, Your Honor, there's no claim for
24
malpractice against Dr. Kantak for the circumcision
25
procedure itself.
There's been absolutely no evidence to
1293
1
support a claim that Dr. Kantak improperly performed the
2
3
previously.
4
motion is not granted.
5
support such a claim.
6
This Court has ruled on that
And the jury should be told as such if this
There's been no expert testimony to
Furthermore, Your Honor there's no legal or
7
evidentiary basis for a claim against MeritCare Hospital.
8
There's no basis in law or fact.
9
requested that the motion to amend the complaint be granted
10
to allow them to substitute MeritCare Hospital as the party,
11
we cited the Kershaw v. Reichert decision.
12
decision, it says a hospital has no duty obtain informed
13
consent.
14
When the plaintiffs
Under that
Under North Dakota law, and by the testimony of
15
the people who testified, it is the physician performing the
16
procedure that has the duty.
17
testimony to support a claim directly or vicariously against
18
the hospital.
19
Hospital, and the plaintiff has not shown that she is.
20
21
There's been no evidence or
Dr. Kantak is not employed by MeritCare
There's no evidence whereby a reasonable jury
could conclude that the nurses were acting as agents of Dr.
22
Kantak, who has acknowledged that it's her responsibility
23
and duty to obtain informed consent for the circumcision
24
procedure, which she did.
25
Furthermore, Your Honor, we incorporate by
1294
1
reference the arguments and case law we have cited for
2
summary judgment and in the bifurcation brief as sources for
3
granting judgment as a matter of law in this case.
4
Your Honor, the plaintiffs have indicated more
5
than once that they're going to appeal this case no matter
6
what happens.
7
that now is the appropriate time to enter final judgment.
Defendants assert or suggest to the Court
8
9
THE COURT:
10
MR. BAER:
Mr. Baer.
Sounds like I'm back to the summary
11
judgment motion that this Court heard in July of 2000.
12
won't restate all the arguments contained in the summary
13
judgment motion, but certainly if one simply looks at the
14
JIG's that are provided for in a medical negligence case, I
15
believe that the plaintiff has met its burden of proof and
16
exceeded its burden of presenting a viable claim for the
17
jury to determine.
18
I would just point out that it's somewhat
I
19
disconcerting, Your Honor, to stand here after the plaintiff
20
has rested and have the defendants argue that we have not
21
shown the standard of care, when they were the ones
22
objecting to my expert witnesses testifying as to the
23
standard of care when they said that's your province to give
24
that to the jury.
25
here and argue to the Court that I have not met my burden.
It's disconcerting to have them now sit
1295
1
In spite of that, I believe there's adequate
2
testimony from the experts, both Dr. Cold and Dr. Van Howe,
3
to establish a breach of the duty of disclosure on the part
4
of the defendants.
5
On a medical negligence claim in North Dakota, you
6
have four elements; the standard of care that apply to Dr.
7
Kantak, which was shown not only through plaintiff's experts
8
but also on cross-examination of the defense experts
9
Shoemaker and Kaplan.
By establishing the standard of care,
10
Shoemaker said there's no risk too small to disclose.
11
Secondly, failure to meet the standard of care by defendant
12
Sunita Kantak.
13
disclose the risks, she did not disclose death.
14
case, Your Honor, she cannot say that she disclosed anything
15
to Anita Flatt.
16
I believe that she even admitted she did not
And in this
All she says is what her routine would be.
If you take the plaintiff's testimony in a motion
17
for directed verdict, you have to assume that the
18
plaintiff's presentation of the evidence is in fact true.
19
If you take the plaintiff's case, the only thing that was
20
discussed was lidocaine.
21
discussed.
22
Period.
That's all that was
Failure to meet that standard was established by
23
all of the expert witnesses that were called in spite of the
24
defense attempts to prevent me from presenting testimony
25
about the standard of care.
1296
1
Thirdly, the element is, was Josiah Flatt damaged?
2
And it's curious to hear the defendants argue that Josiah
3
Flatt has not been damaged.
4
the nondisclosure.
5
made, Josiah Flatt would have his foreskin today and would
6
have a full and complete penis.
7
resulted from the lack of disclosure.
8
9
The damage has to result from
And in this case, had disclosure been
That is the injury that has
The failure to meet the standard of -- of care
proximately caused by the damages is the last one.
10
Proximate cause.
11
giving complete information to Anita Flatt, Josiah would
12
have his foreskin today.
13
But for the failure of Dr. Kantak in
As to the physician's duty to disclose, this is
14
where the defense basically argued throughout this entire
15
case that the duty to disclose was something the Court was
16
going to do.
17
directed verdict because I have not proven it.
18
point there has to be consistency in the defendant's
19
argument.
20
And now they're arguing for motion for
At some
The physician's duty to disclose is contained in
21
Jaskoviak.
And Jaskoviak states clearly that it is the
22
physicians' duty to disclose -- looking at a cite from
23
Winkjer actually -- this is paragraph 16 of the Jaskoviak
24
decision -- looking at a cite from Winkjer, which was a late
25
'80's case from the North Dakota Supreme Court, it says "a
1297
1
patient's cause of action is not limited to the existence
2
and nonperformance of a relevant professional tradition.
3
These courts have stated a patient's right of
4
self-determination in particular therapy demands a standard
5
set by law for physicians rather than one which physicians
6
may or may not impose upon themselves."
7
And then it says, "We hold that the standard
8
measuring performance of that duty by physicians, as by
9
others, is conduct which is reasonable under the
10
11
circumstances."
Then it says, "Thus the test for determining
12
whether a particular peril must be divulged is its
13
materiality to the patient's decision:
14
potentially affecting the decision must be unmasked."
15
all risks
And I might add that although the defense takes a
16
position that circumcision -- that the natural result is the
17
removal of the foreskin, that does -- says only part of the
18
issue.
19
the tissue.
20
natural connection between the glans penis and the foreskin.
Circumcision is much more than just the removal of
21
Circumcision involves the ripping apart of the
Did they tell the mother about the natural
22
anatomy?
Did they tell the mother about that they would
23
have to cut it with a knife after putting a hemostat on
24
there for two minutes?
25
of what circumcision is.
All of these things go to the issue
And it is not as clear as I'm sure
1298
1
we all understand after hearing all the testimony in this
2
case that circumcision is not just a snip.
3
surgically separate living, human tissue in order to do the
4
5
is to unmask -- essentially describe what the procedure is.
6
They have to
And the obligation of the physician
We need only look to the AAP statement on informed
7
consent, Your Honor.
And the witnesses who testified
8
indicated that the AAP statement on informed consent
9
basically set the standard or the bar for the duty of
10
physicians to disclose when undertaking a procedure on an
11
infant.
12
The elements identified in an informed consent
13
case, at least the duty of the physician, is to disclose
14
what the procedure is.
15
the circumcision is not sufficient information to allow a
16
parent to make a decision about whether or not they want to
17
consent to having their son circumcised.
18
And in this case, just describing
I can't find the one that's an exhibit, Your
19
Honor.
20
standard that was testified to by not only Dr. Cold, Dr. Van
21
Howe, but Dr. Shoemaker and Dr. Kaplan.
22
defense objected strenuously, there was an opportunity to
23
have the doctors testify about the informed consent as it
24
relates to minors.
25
I just want to -- it's Exhibit 31.
This is the
And although
And the first element of an informed consent for a
1299
1
doctor is to provide an explanation in understandable
2
language of the nature of the ailment or condition.
3
this case, there was no description to Anita Flatt of what
4
the natural condition was of that penis.
5
think that the natural condition of a penis, like the
6
defendants argue, is to have it without a foreskin.
Now, in
Most people might
That is
7
the mentality of our society.
8
9
What the obligation of the physician is is to
explain in understandable language the nature of the ailment
10
or condition.
11
there was no ailment or condition to describe, but there
12
was.
13
intact penis, to describe to a parent so -- what the
14
procedure is, what they're doing to it, what they have to do
15
to it, and describe those elements.
16
Now, in this case, the defendant says, well,
And that was the anatomic, natural condition of an
And in this case, at this point of the
17
proceedings, Your Honor, none of these were met; not even by
18
Dr. Shoemaker's standards or Dr. Kaplan's standards or
19
anybody's standards was the duty to disclose met if you take
20
the plaintiff at its word, which you must do at this stage
21
of the proceedings.
22
Ms. Lord was listing off a number of the risks and
23
indicating that they have not materialized into injury.
And
24
I contest that strenuously.
25
indicated that asymmetry was indeed a risk of circumcision,
Dr. Shoemaker yesterday
1300
1
that adhesions were a risk of circumcision.
Josiah Flatt
2
suffered from both of them -- not that you even need to go
3
there -- but he suffered from both of them.
He suffered the
4
5
pain of the lyses of those adhesions in August of 1997.
From the testimony of Dr. Cold, taken at its face,
6
you have to conclude that when you lose 50 percent of the
7
skin covering your penis that contains the most innervated
8
direct pipeline connection from penis to brain, that there's
9
some loss of sexual pleasure.
10
Under the law of this state,
particularly under Jaskoviak, the motion should be denied.
11
Thank you.
12
THE COURT:
Mr. Baer, can you tell me what
13
evidence the plaintiff has introduced which would go to
14
liability of MeritCare Hospital?
15
MR. BAER:
16
THE COURT:
17
MR. BAER:
Yes.
Would you do that for me, please?
MeritCare Hospital employs the nurses,
18
provides -- which I attempted to provide this morning, Your
19
Honor, but was cut off -- provides the circumcision tray,
20
the Circumstraint, the Gomco clamp, the Kellie forceps, the
21
mosquito forceps, the safety pin, the sterile drapes, the
22
nurses, the nursing room, provides all those facilities to
23
do the procedure.
24
25
And as it specifically relates to informed consent
provides printed forms and policies and procedures to aid
1301
1
and assist Dr. Kantak and the other family -- or the other
2
pediatricians to ensure that informed consent is obtained.
3
So I believe that there is a causal and there's a nexus
4
there that Dr. Kantak certainly does not do it on her own.
5
THE COURT:
6
MR. BAER:
Is that under an agency theory?
Yes.
They are acting as agents of
7
MeritCare or -- or of Dr. Kantak in carrying out her
8
obligation of obtaining informed consent, because the
9
testimony, if anything, is clear, before a circumcision is
10
done, there must be a signed consent form available.
11
Dr. Kantak testified and the nurses all testified
12
that they don't take the consent forms out at that point.
13
They don't take them out when Dr. Kantak does her rounds.
14
They take them out at a later date or later time and then
15
ensure that they are in the records.
16
are agents of Dr. Kantak in providing informed consent.
17
THE COURT:
So the nursing staff
Doesn't Kershaw say that it's only a
18
physician's obligation to obtain informed consent?
19
that case, they held that the hospital had no obligation at
20
all.
21
MR. BAER:
And in
I don't know the facts of the Kershaw
22
case.
I'm sorry about that, I haven't had a chance to
23
review that case.
24
don't know if there was a system set up where -- where the
25
nurses accompanied the doctor in their talk about informed
But my point would be, Your Honor, I
1302
1
consent and then allowed them to rest on it or sit on it,
2
and then come back later to obtain signatures.
3
there's a distinction to be drawn, Your Honor, because the
4
purpose of waiting is to allow the parents to have a chance
5
to think about the procedure.
I think
6
And in this case, you have the birth of a child,
7
it's right after the event in this case, it happened -- it
8
happened after a full night of no sleep.
9
nurse came in, presumably had a little chat, they left, and
And the doctor and
10
then a nurse at 7:00 o'clock in the evening, carrying out
11
what it is the doctor's obligation to do, is to obtain that
12
signature.
13
that form that Josiah Flatt was circumcised the next
14
morning, and it was not Dr. Kantak who obtained that
15
signature.
16
And it is only because that signature got on
In the specific facts of this case, Your Honor, it
17
is an agency relationship between Dr. Kantak or the other
18
pediatricians that allows her to perform circumcisions the
19
following morning in compliance with their protocol.
20
THE COURT:
But what evidence is there that Dr.
21
Kantak controlled or supervised those actions by the nurses?
22
There has to be an element of control or supervision, does
23
there not?
24
25
MR. BAER:
Sure, there is a protocol right here.
The protocol that's introduced as evidence.
There's a
1303
1
protocol --
2
THE COURT:
3
signatures on informed consent?
4
5
MR. BAER:
THE COURT:
7
MR. BAER:
9
Yes, there is, in the hospital.
It's
Exhibit 106, Your Honor.
6
8
There's a protocol for getting
Procedure."
May I see it, please?
Sure.
It's under "Preparation and
It's the third one down.
THE COURT:
Are you saying that the section on
10
preparation and procedure is a directive from Dr. Kantak to
11
the nurses as to how to get the signature?
12
you're saying?
13
MR. BAER:
No.
Is that what
What I'm saying, Your Honor, is
14
that this is a symbiotic relationship that occurs at
15
MeritCare.
16
talked about it a little bit -- I was prevented from getting
17
into the details by the Court's ruling -- but Dr. Shoemaker
18
was chair of the Pediatrics Department of MeritCare
19
Hospital, the Joint Practice Council of MeritCare Hospital,
20
and intensive care nursery, I believe, and then also of the
21
MeritCare Pediatrics group.
22
The relationship is such -- and Dr. Shoemaker
They are different entities.
But in conjunction
23
with that, they adopted policies and procedure for obtaining
24
informed consent from expectant -- or from mothers who have
25
recently given birth to baby boys.
And as part of those
1304
1
policies and procedures, which is required to be followed in
2
order to obtain informed consent, you have the policy in
3
front of you, which is 106, and I believe it says that it is
4
the nurse's obligation to ensure that a consent is signed.
5
And not only that, they go one step further and
6
require the nurse to ask whether or not there's any bleeding
7
anomalies in either the mother or father's family.
8
is in the nursing protocol that says it must be handwritten
9
on the bottom of the consent form.
10
11
THE COURT:
And that
Where does it say that the nurse --
it's the nurse's responsibility?
12
MR. BAER:
This is from the Family Birth Center,
13
which is the hospital.
14
procedure, there must be a surgical consent signed."
15
16
THE COURT:
nurse?
And it says, "Preparation and
I've read that.
Where does it say the nurse has to do that?
17
MR. BAER:
18
that's what was in testimony.
19
THE COURT:
20
Where does it say the
I don't know it says that in here, but
Thank you.
Okay.
Anything further on
that point then, Mr. Baer?
21
MR. BAER:
22
THE COURT:
No, Your Honor.
Do you want to respond --
23
specifically, I'm looking at the hospital's liability issue
24
here.
25
MS. LORD:
Yes, Your Honor.
The Kershaw v.
1305
1
Reichert decision is very clear.
2
to obtain informed consent from the patient or parent in
3
this case for the procedure.
4
The hospital has no duty
And what Mr. Baer is relying on as far as the
5
consent form being signed, that's not related to the duty of
6
disclosure or obtaining the informed consent.
7
documentation that the parent wants the procedure to go
8
forward.
9
in an informed consent case, which is what the case law is
10
It's
It has nothing to do with the duty of disclosure
talking about, and which the Kershaw decision speaks to.
11
Mr. Baer hasn't cited one decision where an agency
12
theory has been applied or could be applied between nurses
13
and a doctor with respect to the doctor's duty of
14
disclosure.
15
it's the doctor's obligation to obtain informed consent, Dr.
16
Kantak acknowledges that, and she did it in this case, but
17
that doesn't address the issue that the hospital simply has
18
no duty.
19
Each nurse that has testified has said that
And that's clear under North Dakota law.
THE COURT:
Anything else, Mr. Baer?
20
MR. BAER:
The circumcision would not have taken
21
place but for the carrying out of the Family Birth Center
22
policy and procedure on informed consent.
23
Center -- the testimony throughout the course of this trial
24
was that it was the nurse's obligation -- even Dr. Kantak
25
said it was the nurse's obligation to obtain a signature on
The Family Birth
1306
1
2
this form.
Dr. Kantak said -- or the nurses said they could
3
not go forward unless there was a signature on the form.
4
And I think Dr. Shoemaker said that.
5
signature that allowed Dr. Kantak on March 7 to go forward
6
with the proceeding.
7
nursing staff.
8
9
It is obtaining that
And who obtained the signature?
The
In this case, it was Ruth Larson.
And I just -- or point the Court to the JIG's on
agency, on apparent agency.
And "apparent agency exists if
10
the conduct of the supposed agent" -- in this case, the
11
nurse -- "is consistent with an agency and when, in a
12
particular transaction, someone is justified in dealing with
13
the supposed agent.
14
communication of the principal which reasonably cause a
15
third person to believe that the agent has authority to act
16
for the principal."
17
Apparent agency must rest on conduct or
In this case, that applies exactly.
Anita Flatt
18
was sitting in the hospital when she was approached by a
19
nurse who had first dropped off forms that needed to be
20
signed, and then later came and talked to the nurse about
21
having some questions, was told, No, you'll have to wait
22
until morning to talk to the doctor.
23
signed form, and the doctor did come in in the morning, but
24
talked only about one thing, and that was briefly about the
25
anesthesia.
The nurse took that
1307
1
And I would point out under the North Dakota JIG
2
on the duty of the hospital -- and that cites the Kershaw
3
case.
4
1991 decision.
5
the JIG, it says that a hospital generally has no duty to
6
obtain informed consent from the patient for the therapy or
7
treatment ordered by an attending physician.
8
"generally."
9
facts of the case.
10
The other case is Soentgen v. Quain & Ramstad Clinic,
And in the bracketed form, Your Honor, on
It says
That is optional language, depending on the
And the footnote on the JIG says that hospital
11
staff may or may not be hospital employees.
And that is the
12
discussion about ostensible authority and ostensible agency.
13
And they cite the Benedict case on that.
14
Luke's Hospital.
Benedict v. St.
So we believe that there's adequate
15
factual basis to allow agency to go forward, applying the
16
standard JIG's in the State of North Dakota.
17
And there's an agent under the agency principle,
18
the general definition of agency, you have either actual or
19
apparent agency.
20
principal actually or apparently confers on the agent."
21
in this case, the principal to obtain informed consent is
22
the medical doctor.
23
the obligation to obtain a signature to the nursing staff,
24
to have a complete and total informed consent process.
25
so you have at least, if not actual agency, you have
"An agent has such authority as the
And
She apparently delegated the duty or
And
1308
1
apparent agency.
So we would urge the Court to deny both
2
motions and allow the case to go forward on the agency
3
principles.
Thank you.
4
THE COURT:
5
MS. LORD:
Ms. Lord.
Yes, Your Honor.
Speaking to the
6
hospital, Mr. Baer has asked a number of the witness with
7
the consent forms, This is not informed consent, is it?
8
Everybody agreed it was not.
9
consent form is Dr. Kantak's obligation or duty of
10
11
12
disclosure in this case.
Nobody's claiming that the
It's not applicable.
With respect to Mr. Baer citing a duty of the
hospital under JIG 14.40, I suggest to the Court that the
13
bracketed language would be used in an informed consent case
14
or when it's coupled with the -- a standard of care where
15
the nurses or the hospital is in the case for a valid
16
reason, not addressing informed consent.
17
would be to clarify to the jury that a hospital does not
18
have a duty regarding informed consent.
19
And that language
This instruction is not to be used just in
20
informed consent cases, but in medical malpractice cases in
21
general, and suggests to the Court that that added language
22
would be a clarification for the argument that we're
23
dressing to the Court right now.
24
25
Your Honor, if I may speak briefly to the risk
materializing into an injury and the duty of disclosure in
1309
1
North Dakota, Mr. Baer cites to the Jaskoviak decision,
2
purportedly asserting that the North Dakota Supreme Court
3
has adopted the holding in Canterbury v. Spence.
4
to the Court that it has not.
5
I suggest
In the section of the Jaskoviak decision where
6
they're citing that proposition, they refer to the Winkjer
7
decision at page 587 and 588.
8
Court is giving a dissertation on what the majority view is,
9
the professional standard, and what the minority view is, a
In the Winkjer decision, the
10
patient rule.
11
In Winkjer, the Court said under either an
12
objective or subjective duty of disclosure, expert medical
13
testimony is generally required on certain things.
14
Court did not adopt Canterbury v. Spence in Winkjer and
15
suggested the Court -- that by citing or quoting from
16
Winkjer in Jaskoviak, the Court did not adopt Canterbury v.
17
Spence.
18
The
If the North Dakota Supreme Court is going to
19
adopt a minority position and take a position that was cited
20
in a minority view, the Canterbury v. Spence, we suggest to
21
this Court that the North Dakota Supreme Court would have
22
said so directly and not simply by giving an indication on
23
what the state of the law is across the country on informed
24
consent.
25
But what does that have to do with Josiah Flatt,
1310
1
Your Honor?
Even if this Court were to adopt the Canterbury
2
v. Spence type standard, even in Canterbury v. Spence, that
3
court said that "An unrevealed risk that should have been
4
made known must materialize, for otherwise the omission" --
5
excuse me, "the risk must actually materialize and that
6
absent occurrence of the undisclosed risk, a physician's
7
failure to reveal its possibility is not actionable.
8
However unpardonable, it's legally without consequence."
9
I'm quoting from our brief in support -- or in
10
opposition to bifurcation.
11
Spence decision at page 790.
And that's the case that's
12
cited for the minority view.
So even in a minority view,
13
there needs to be a risk that has actually materialized into
14
an injury.
15
allowing patients or plaintiffs to bring cases to court.
16
There needs to be a check in the law, there is that check in
17
the law.
18
it, but, more importantly, all of the facts of the cases
19
where informed consent has been able to go forward to a
20
jury, those facts -- at least evidence has supported it.
21
suggest to the Court that in this case, the plaintiffs have
22
not met their burden.
23
That's at the Canterbury v.
And that's the check that the law puts on
The North Dakota Supreme Court cases talk about
We
Mr. Baer also addressed the standard of care and
24
duty of disclosure.
And perhaps I didn't state our position
25
as accurately as I should.
What I'm suggesting to the Court
1311
1
is that there's been no expert testimony from Dr. Cold or
2
Dr. Van Howe with respect to what accepted medical practice
3
is in obtaining inform consent for a circumcision procedure
4
from a parent.
They aren't qualified to do it, they don't
5
do it, and they did not give any expert testimony on what
6
should be discussed with the parent.
7
Mr. Baer also referred to Dr. Shoemaker's
8
testimony.
Dr. Shoemaker was very clear that, in his
9
opinion, there's been no injury to Josiah Flatt functionally
10
or cosmetically as a result of the circumcision procedure.
11
Dr. Shoemaker's testimony does not support a claim to go
12
forward in front of the jury.
13
matter of law be entered.
14
Thank you.
15
THE COURT:
16
MR. BAER:
We request that judgment as a
Could I just briefly?
And I don't want
17
to belabor these points either, Judge, but I can't help but
18
feel as though the defendant is arguing from different
19
positions on every given day.
20
that the informed consent form has no relevance at all to
21
obtaining informed consent.
22
Now they're saying, Judge,
Well, why doesn't the Court just then direct a
23
special instruction saying, Members of the jury, don't
24
consider this form at all in considering whether informed
25
consent was obtained.
In their special verdict form, they
1312
1
actually ask whether or not Anita Flatt was negligent by
2
signing the informed consent form.
If the informed consent
3
form was not an integral part of the obtaining of informed
4
consent, the defendants would not request a special verdict
5
question on that issue.
That's all I have on that point.
6
But on the point about injury, if you go to an
7
oncologist, and the oncologist looks at radiographs or a
8
mammogram, and the oncologist says, You have breast cancer,
9
I see a tumor, so they schedule a radical mastectomy, they
10
take the breast tissue out, they do their analysis and they
11
find, whoops, we made a mistake, under the defendant's
12
theory, the plaintiff would not have a cause of action
13
because the result of a mastectomy is the removal of the
14
breast tissue.
15
procedure resulted in injury because it's the injury itself.
16
17
18
19
20
Not one of the risks associated with that
We think both cases ought to go to the jury.
Thank you.
THE COURT:
We're getting a little short on time.
Just briefly, Ms. Lord.
MS. LORD:
Your Honor, I just feel compelled to
21
make a clarification for the record.
22
that we had referred to the consent form in the special
23
verdict form.
24
was, Was Anita Flatt at fault in consenting to Josiah
25
Flatt's circumcision?
We did not.
Mr. Baer indicated
The question that was raised
Absolutely no reference to the
1313
1
2
consent form.
THE COURT:
Okay.
The Court is of the opinion
3
that the plaintiff has in the testimony and perhaps even in
4
the exhibits raised the facts that the MeritCare Hospital
5
supplies the facility, instruments, that they employee the
6
nurses who deliver and pick up the informed consent form
7
from the parents, and the hospital also provides privileges
8
to Dr. Kantak.
9
However, in my opinion, those factors do not
10
establish nor am I aware of any evidence in this case which
11
is sufficient to establish an agency relationship between
12
MeritCare Hospital and Dr. Kantak.
13
Kershaw decision, which is Kershaw v. Reichert -- I just
14
have the slip opinion so I don't have the cite off the top
15
of my head -- as being very clear that it is only a
16
physician that has the duty of informed consent.
17
As the Court reads the
So I am granting the defendant's motion under Rule
18
50 to grant a judgment as a matter of law in favor of
19
MeritCare Hospital and dismissing MeritCare Hospital from
20
this lawsuit.
21
a matter of law is denied.
22
Josiah Flatt versus Dr. Kantak only.
23
24
25
The remainder of the motion for a judgment as
We will proceed with the case of
I am looking for suggestions as to how I relay
this to the jury.
Ms. Voglewede.
MS. VOGLEWEDE:
Your Honor, I would simply ask for
1314
1
an instruction to the jury at the conclusion -- well, you
2
won't be giving instructions until following closing,
3
correct?
4
THE COURT:
I give them before closing.
5
MS. VOGLEWEDE:
Before closing.
I would request
6
that you include an instruction that the claim against
7
MeritCare Hospital has been dismissed.
8
THE COURT:
9
MS. VOGLEWEDE:
10
THE COURT:
11
MR. BAER:
In those instructions?
Correct.
Mr. Baer.
My suggestion would be to simply
12
apprise the jury that it is only the duty of Dr. Kantak.
13
don't know why the jury would even have to know that
14
MeritCare is dismissed.
15
There's not going to be any question about MeritCare.
16
mean, to date I don't think they've heard any testimony that
17
would be different about MeritCare, so I don't see that
18
there's even a need to bring that issue up to the jurors.
19
THE COURT:
20
MS. VOGLEWEDE:
21
They would see the verdict form.
I
Ms. Voglewede.
It can probably be resolved simply
by not having that included on the verdict form.
22
THE COURT:
23
MR. BAER:
24
THE COURT:
25
I
And that's what you're saying also?
Yes.
Okay.
So I won't be saying anything
to the jurors at this point, we'll take care of it in the
1315
1
jury instructions?
2
MR. BAER:
Right.
3
MS. VOGLEWEDE:
Along those lines, Your Honor, may
4
I ask for clarification whether the Court has included in
5
its ruling the issue of whether any negligence in the
6
procedure itself is an issue that goes to the jury?
7
8
THE COURT:
If I wasn't clear on that, I'm
dismissing MeritCare on all grounds.
9
MS. VOGLEWEDE:
10
THE COURT:
11
MS. VOGLEWEDE:
No, this is as to Dr. Kantak.
Oh, I'm sorry.
Part of our motion was that
12
there's been no expert testimony concerning negligence in
13
the procedure itself.
14
would request an instruction to the jury to clarify that as
15
well.
16
17
MR. BAER:
And if the Court's ruling on that, I
Your Honor, I didn't hear that as part
of any motion that they brought.
18
MS. LORD:
I did raise that, Your Honor.
19
MR. BAER:
I didn't hear it.
If it was raised, I
20
didn't hear it, but I would object to that because there is
21
adequate testimony that adhesions occurred, lysing occurred
22
in those adhesions in August of 1997.
23
associated with that.
That there was pain
24
25
THE COURT:
Just a moment.
The complaint in this
case -- I guess I can't find it right now.
It's -- your
1316
1
cause of action against Dr. Kantak is informed consent; am I
2
not correct?
3
MR. BAER:
4
THE COURT:
5
I believe so.
Okay.
Your complaint does not allege
that the procedure was done improperly.
6
MR. BAER:
Am I correct?
That probably is true.
Then why do we
7
need an instruction saying anything to the jury?
8
is no need for an instruction.
9
MS. VOGLEWEDE:
Then there
Your Honor, as you know from the
10
evidence presented in this case, there have been
11
suggestions, innuendoes, numerous questions throughout the
12
case.
13
the jury so that they know what the issue is that they're
14
being asked to decide.
15
16
That's an issue that I think should be made clear to
THE COURT:
I think that we can do that in the
instructions.
17
MS. VOGLEWEDE:
18
THE COURT:
19
20
Okay.
That's my request.
I think that's how we can handle that.
Anything else regarding defendant's motions?
MS. VOGLEWEDE:
Nothing further.
21
22
THE COURT:
Mr. Baer, do you have anything at this
MR. BAER:
As long as we're making a record, let's
time?
23
24
make a record.
I would move for judgment as a matter of law
25
for the plaintiff on the basis that the defendant has not in
1317
1
any way put into issue the plaintiff's version of the facts.
2
The only testimony that was presented was presumably routine
3
practice.
4
way routine, there's nothing to suggest that there was a --
5
you know, that this is something that could be considered
6
routine under Rule 407, I believe.
7
406, in order to establish a claim by routine, it has to be
8
evidence of a habit of a person and the routine practice of
9
an organization.
10
There's nothing to suggest that this was in any
406.
And under Rule
We have no testimony in this case about Dr.
11
Kantak's habit.
And it was not a routine practice of an
12
organization.
13
showing of what took place on March 6 and 7 of 1997, and
14
would ask for judgment as a matter of law on the issue of
15
liability and only submit the issue of damages to the jury.
And we think that there's been inadequate
16
That's all I have.
17
MS. LORD:
18
Your Honor, we oppose that motion.
There was no objection to any of the habit testimony that
19
was introduced through the nurses or Dr. Kantak.
20
testify as to her routine.
21
Evidence, routine practice is admissible, there was no
22
objection to it.
23
and certainly is sufficient for the jury to find in Dr.
24
Kantak's favor.
25
She did
Under Rule 406 of the Rules of
The jury has already heard the testimony
Habit, under the Rules of Evidence, is one's
1318
1
regular response to repeated situation.
2
number of cases across the country that have recognized that
3
in a malpractice case, one of the only ways that a physician
4
can defend herself is through the use of habit and routine
5
testimony.
6
that she treats a number of patients, and that the only way
7
in a malpractice case oftentimes that there can be a defense
8
to a claim is through the admission of habit testimony,
9
which there was in this case.
10
11
12
13
14
15
And there's been a
It's been testified by the nurses, by Dr. Kantak
I have a number of citations if the Court would
like to hear them.
THE COURT:
If you want to make them for the
record, go ahead.
MS. LORD:
In the Hoffart v. Hodge decision, 609
N.W.2d, 397, 404, Nebraska Court of Appeals decision from
16
2000, where a physician's routine advice to mammogram
17
patients regarding failure rates was permitted and
18
admissible to defend a claim.
19
Bennett, B-e-n-n-e-t-t, 620 N.E.2d 775, Massachusetts
20
decision from 1993, where a pediatrician's routine
21
instructions upon discharging was admissible habit regarding
22
a premature infant.
23
Palinkas, P-a-l-i-n-k-a-s, v.
Crawford v. Fayez, 435 S.E.2d 545, North Carolina
24
Court of Appeals decision in 1993, where testimony of a
25
physician and former patients regarding a physician's habit
1319
1
and routine practice of informing patients regarding a
2
drug's side effects was admissible.
3
Rigie v. Goldman, R-i-g-i-e, 543 N.Y.S.2d 983, a
4
New York Appellate Division decision from 1989, which
5
allowed testimony by a dentist and his assistant regarding
6
the dentist's routine advice to patients regarding the risks
7
of a wisdom tooth extraction.
8
9
Reaves v. Mandell, 507 A.2d, Atlantic 2d, 807, a
New Jersey lower court decision from 1986, where
10
obstetrician/gynecologist testimony regarding information he
11
gave to hysterectomy patients as part of routine was
12
admissible.
13
Bloskas, B-l-o-s-k-a-s, v. Murray, M-u-r-r-a-y,
14
646 P.2d 907, a Colorado 1982 Supreme Court decision, where
15
a physician's testimony regarding his routine practice of
16
warning patients prior to joint replacement surgery was
17
admissible to defend a claim.
18
Dincau, D-i-n-c-a-u, v. Tamayose, T-a-m-a-y-o-s-e,
19
182 Cal.Rptr. 855, a California Court of Appeals decision
20
from 1982, where a physician's habitual response to
21
telephone calls regarding minors featuring symptoms was
22
comparable to what he was testifying for the plaintiff.
23
Meyer v. United States, 638 F.2d 155, a 10th
24
Circuit case from 1980, involving the Federal Tort Claims
25
Act, where testimony of a dentist and others regarding a
1320
1
dentist's habit, custom and routine was admissible to defend
2
a claim.
3
Swine Flu Immunization Products Liability
4
Litigation, 533 F.Supp. 567, a District of Colorado decision
5
1980, also a Federal Tort Claims Act case, where a county
6
health department's habit and routine practice of obtaining
7
signed -- obtaining informed consent prior to administering
8
the vaccine was admissible.
9
10
There's also an annotation that discusses the
propriety or the use of customer habit information in
11
medical malpractice cases to defend a claim.
12
1243.
13
10 A.L.R.4th
The Brokamp v. Mercy Hospital decision, 726 N.E.2d
14
594.
In that case, patients sued a hospital, alleging that
15
it was -- negligently administered an injection in the leg.
16
The nurse was able to defend herself by explaining her habit
17
and routine.
18
Steinberg v. Arcilla, a Wisconsin Court of Appeals
19
decision from 1995.
20
anesthesiologist for injuries resulting from his failure to
21
properly position arms during the surgery.
22
to defend himself in that claim by explaining his habit and
23
routine.
24
25
There the patient sued an
It was permitted
In North Dakota, the admissibility of habit
testimony, again it was not objected to in this case, Your
1321
1
Honor, but in Weisenberger v. Senger, 381 N.W.2d 187, North
2
Dakota decision from 1986, addressed the admissibility of
3
habit information in allowing testimony in that case.
4
was not a medical malpractice case, Your Honor, but there is
5
a wealth of cases that have been cited that support that
6
proposition.
7
allow the jury to decide the matter.
8
That
And certainly it's sufficient in this case to
THE COURT:
Mr. Baer.
9
MR. BAER:
May I just briefly respond?
10
that it is an error to say that I didn't object.
11
based on foundation, and I was overruled on those
12
objections.
13
there was an objection made.
14
I believe
I objected
So I think the record should be clear that
Secondly, we don't deny that there is a rule on
15
habit and routine.
16
routine was established.
17
the testimony, even taken in the light most favorable to the
18
nonmoving party in this case, Dr. Kantak, is that her story
19
changes, depending on when it is given.
20
indication and the nurses didn't testify as to the habit or
21
routine on March 7, 1997.
22
or routine that they're familiar with.
23
focusing on March 7, 1997.
24
25
What we're saying is, no habit or
THE COURT:
The most that you can say about
There's no
They testified what is the habit
There was no
That's all.
The plaintiff's motion for a judgment
as a matter of law as to the liability of Dr. Kantak is
1322
1
denied.
That will be a jury question, as will the question
2
of any damages, if any.
3
4
MR. BAER:
5
THE COURT:
No, Your Honor.
Okay.
Anything else, defense?
day,
6
MS. LORD:
7
THE COURT:
8
We'll be in recess until 11:15.
9
No, Your Honor.
Okay.
We need to take a recess.
Court's in recess.
(Recessed at 11:07 a.m. until 11:18 a.m., the same
10
at which time the following proceedings were continued in
11
open court, in the presence of the jury:)
12
13
THE COURT:
counsel and jurors.
14
15
We are reconvened with all parties,
Jurors, we appreciate your patience.
longer than we thought.
16
Defense.
17
MS. VOGLEWEDE:
18
It took
The
defendant calls Kristi Burgard.
19
KRISTI BURGARD,
20
being first duly sworn, was examined and testified on her
21
oath as follows:
22
23
DIRECT EXAMINATION
BY MS. VOGLEWEDE:
24
Q
Will you state your name, please?
25
A
Kristi Burgard.
1323
1
2
Q
Ms. Burgard, are you an R.N. at the Family Birth
Center at MeritCare?
3
A
Yes, I am.
4
Q
How long have you been at the Family Birth Center?
5
A
Since October of 1996.
6
THE COURT:
I need you to speak right into the
7
microphone.
8
speak up because I am having trouble hearing you.
9
repeat your answer, please.
10
11
You might have to adjust it.
THE WITNESS:
Q
I need you to
Could you
October of 1996.
Ms. Burgard, were you
12
working at the Family Birth Center sometime during the
13
period between March 5 and March 8 of 1997?
14
A
Yes, I was.
15
Q
When were you working?
16
A
I was working, I believe, a -- 12-hour night
17
shifts.
18
Q
And were you working on the night of March 5?
19
A
Yes, I was.
20
Q
Into the early morning hours of March 6?
21
A
Yes, I was.
22
Q
What was your role or your position?
23
A
I was a labor room nurse.
24
Q
And did you care for Anita Flatt?
25
A
Yes, I did.
1324
1
Q
If you would turn, Ms. Burgard, to Exhibit 6 --
2
MS. VOGLEWEDE:
3
THE COURT:
4
Q
May I approach, Your Honor?
Yes.
Exhibit 6, which is a
5
copy of the baby's chart, to page 3, Ms. Burgard, did you
6
report any information on page 3 of the baby's chart at the
7
time Ms. Flatt was admitted to the hospital?
8
9
10
A
the page.
Q
Yes, I did.
The maternal history to the bottom of
Not the neonatal part.
And I'll show you Exhibit 137, which is an
11
enlargement of that page.
And could you point out to the
12
jury the part of this record that you completed.
13
A
From here to the bottom of where my signature is.
14
Q
On the right-hand side, from maternal history to
15
the bottom?
16
A
Correct.
17
Q
And is this your signature?
18
A
Yes, it is.
19
Q
Would you explain to the jury the time at which
20
21
you obtained this information from Ms. Flatt?
A
That's during the admission of her labor history.
22
That is also part of the documentation that's filled out.
23
And that's filled out approximately the same time.
24
25
Q
Could you explain to the jury what your notations
mean by the blanks that say "Mother's Physician" and "Baby's
1325
1
Physician"?
2
A
What had happened is I -- when I asked what the --
3
the baby's physician was, she said Dr. Pitts.
And I had
4
transposed the baby's doctor and the mother's doctor.
5
Q
So mother's physician should be Dr. --
6
A
Should be Dr. Bro.
7
Q
And baby's physician, Dr. Pitts?
8
A
Right.
9
MR. BAER:
10
THE COURT:
11
Q
Objection, leading.
Sustained.
And, Ms. Burgard, it
12
appears that the name Pitts is crossed through.
13
who did that?
14
A
That was me.
15
Q
And something is written in here.
16
Do you know
Is that your
writing?
17
A
Yes, it is.
18
Q
What does that say?
19
A
It says, "MeritCare on call Dr. Kantak."
20
Q
Can you explain the reason for that notation?
21
A
Yes.
I had -- we have many pediatricians that
22
come into the hospital that do not work exactly at
23
MeritCare, they work at other facilities.
24
that down.
25
to see if that was a potential pediatrician that does have
So I had written
And I had checked with one of the other nurses
1326
1
cares at MeritCare.
2
And I was told, no, it wasn't.
And then I spoke with Ms. Flatt about that and
3
would have let her known that it would have been the doctor
4
on call for the next day after she delivered, which at that
5
point was Dr. Kantak.
6
while she was in the hospital.
7
she could pick a pediatrician or family practice doctor who
8
she would like to go to.
9
10
11
Q
And that they would see her baby
And then after that point
And at what point in -- how soon after her
admission would you have discussed that with her?
A
I would have discussed it right away after I had
12
found out that that was not who the correct person was, that
13
it was not Dr. --
14
have been Dr. Kantak.
15
Q
was not Dr. Pitts, it was Dr. -- would
And after Josiah Flatt was born, Ms. Burgard, did
16
you do any documentation -- any other documentation on what
17
you described to the jury in his nursery record?
18
19
20
21
A
I believe our -- the -- the delivery computer
charting we do applied -- is in the baby's chart.
Q
If you would turn, Ms. Burgard, to page 20 of
Exhibit 6, is that the record to which you are referring?
22
A
Yes, it is.
23
Q
And can you describe for the jury what portion of
24
25
that record was completed by you?
A
It was the bottom portion of that page, the labor
1327
1
2
3
delivery note that we chart in the computer.
Q
Let me give you a copy of that page.
Do the
initials on the right indicate where your charting starts?
4
A
Yes, it does.
5
Q
What are your initials?
6
A
K.K.B.
7
Q
So starting at this point?
8
A
Correct.
9
Q
On down to there would be your charting?
10
A
Correct.
11
Q
And I think you referred earlier to the labor
12
history?
13
A
Correct.
14
Q
And is that what's indicated here on the left-hand
15
margin?
16
A
Yes, it is.
17
Q
Tell me why that information is entered onto the
18
19
baby's chart.
A
It's -- it is a summary of everything that has
20
happened throughout the labor process.
And a copy of that's
21
on the baby's chart so the pediatrician can review that as
22
23
well.
Q
Can you explain, Ms. Burgard, how the times that
24
you entered on the right-hand side, 4:46, how those were
25
entered?
1328
1
A
That's probably the time that I had placed the
2
note in the computer.
Again, this is a summary from the
3
time her labor had started to the ending of it.
4
these things are not time based.
5
was there.
6
had given her medication, I had charted that it was at 2145.
7
That actually was the previous day, but since it is a
8
summary, you know, that's why it's different times.
9
other thing is, too, when you enter things into the
A lot of
It's more factual of who
The things that are time based, such as when I
The
10
computer, if you automatically hit enter, it defaults to the
11
time that it was entered.
12
Q
You referred a minute ago to entering a time for a
13
medication.
14
A
Correct.
15
Q
And can you tell me how that reads?
16
entry?
17
A
"Two milligrams Stadol IV at 2145."
18
Q
And is that this entry?
What's the
19
A
Yes, it is.
20
Q
And what entries were you referring to here that
21
aren't timed entries, there is no time that you can enter
22
for them?
23
A
The time for the presentation of the baby, who the
24
-- the doctor was, who the labor room nurse was, who the
25
nursery nurse was, et cetera.
1329
1
Q
And this medication that you enter, you said
2
that's actually a medication that was given the previous
3
day?
4
A
Correct.
5
Q
March 5 of 1997?
6
A
Correct.
7
Q
And so far as you know, Ms. Burgard, was that an
8
acceptable way to enter the time for that labor history
9
section that you entered?
10
A
Yes, it was.
11
Q
Mr. Baer has pointed out to the jury an entry on
12
that page to an epidural.
Do you see that?
13
A
Yes, I do.
14
Q
And what has been entered as to whether or not an
15
16
epidural was given?
A
No.
17
Q
Was that an error?
18
A
Yes, that was.
If you were to look at my labor
19
room charting that I had done during the time that Anita was
20
in labor, that is all charted correctly.
21
22
23
Q
And can you turn in the mother's chart, Exhibit 7,
to where you have charted the epidural.
A
It's between page 14 and page 15.
24
photocopied, those sheets would be together.
25
across.
The way this is
It would flow
Where it had stated that she requested an epidural,
1330
1
2
3
4
that was on page 14, continuing on.
Q
Let me pick that up for the jury here for a
moment.
A
5
Okay.
MS. VOGLEWEDE:
Your Honor, could I have the
6
witness step down and show the jury where that entry
7
appears?
8
9
10
THE COURT:
Q
Yes.
Could you point out
that entry where you refer to the epidural being given?
11
A
Right here.
12
Q
Can you read that entry?
13
A
"Patient requests epidural.
Doctor Danials paged
14
for epidural."
15
did place that.
16
Q
The record continues on that he was here and
In turning your attention to page 11 of the
17
mother's record, does -- was the epidural charted on that
18
page?
19
THE COURT:
20
her back is turned.
21
just me then.
I don't know if they can hear her when
Did you hear her previous -- well, it's
22
A
I'm sorry.
23
Q
24
25
Was the epidural
charted on page 11 of the mother's chart as well?
A
Yes, it is.
1331
1
Q
And can you point that out?
2
A
(Indicating.)
3
Q
Is that your handwriting?
4
A
Yes, it is.
5
Q
Thank you.
Did any of that charting that we just
6
talked about concerning the mother's labor history or the
7
epidural have anything to do with Josiah Flatt's
8
circumcision?
9
A
No, it did not.
10
Q
I would like to ask you one other question, Ms.
11
Burgard, about the charting.
There has been testimony in
12
this case about the mom's chart, Exhibit 7, and about a flow
13
sheet that includes a space for doctor visits.
14
at page 37.
15
A
Yes, I do.
16
Q
And I'll show just page 37 to the jury.
17
For example,
Do you see that?
Is that
this section that I'm pointing to?
18
A
Yes, it is.
19
Q
And the fact that those pages were not completed
20
until, I believe, the third day of Ms. Flatt's
21
hospitalization, when it is shown that there was a visit by
22
Dr. Herzog, would you explain which doctor that refers to,
23
the mom's doctor or the baby's doctor?
24
25
A
It would be the mom's doctor, the obstetrical
doctor.
1332
1
2
Q
And from your experience do the O.B. doctors make
rounds every day?
3
A
Yes, they do.
4
Q
And why are there days on this chart, for example,
5
where there is nothing filled in for the M.D. visits?
6
MR. BAER:
7
THE COURT:
8
Q
Objection, foundation.
Sustained.
Ms. Burgard, have you
9
worked at Family Birth Center as a mom/baby nurse?
10
A
Yes, I have.
11
Q
And a labor nurse?
12
A
Yes, I have.
13
Q
And a nursery nurse?
14
A
Yes, I have.
15
Q
And in charge positions?
16
A
Yes, I have.
17
Q
And are you familiar with how the charting is done
18
in the mom's chart, including the paper flow sheets that I
19
just pointed out?
20
A
Yes, I am.
21
Q
And why would it be that there would be pages
22
where there would be no M.D. filled in for M.D. visits?
23
MR. BAER:
24
THE COURT:
25
A
Objection, speculation.
Overruled.
Answer the question.
There are times when the postpartum nurse's busy
1333
1
taking care of the patients, they may not directly be in the
2
room the time that the doctor does enter to visit, so they
3
may not personally see the physician.
4
Q
And if they don't
5
personally see the physician, what's the practice regarding
6
whether a visit is charted?
7
A
It may not be charted.
It's usually up to the --
8
usually it's the charge nurse that does the rounds with the
9
doctor so I mean it's made sure that -- that the patients
10
11
12
are seen.
Q
So the fact that there are no visits charted would
not indicate that the patient was not seen by the physician?
13
A
Correct.
14
Q
One other question I want to ask you about, Ms.
15
Burgard.
The jury has heard some description in this case
16
about a technique where, during a circumcision, the baby's
17
upper body is swaddled.
18
A
Yes.
19
Q
Are you familiar with that technique?
20
A
Yes, I am.
21
Q
And can you tell the jury how that practice came
22
23
to the Family Birth Center?
A
It came -- I had worked out in Washington state
24
approximately a year prior to coming to MeritCare.
And the
25
technique they had used was to fold a blanket somewhat in
1334
1
half, and that was used to swaddle the upper portion from
2
the shoulders to the middle, like almost the umbilicus area.
3
It just helped to keep the babies more comfortable.
It was
4
a more comfortable, comforting position for the babies.
5
And they tolerated the procedure much better
6
because that's a -- it's a more natural position for them.
7
And when I came to MeritCare, I had just -- it was shortly
8
after I was being oriented, and I happened to have been in
9
the nursery while they were doing a circumcision, and I
10
just, you know, suggested that.
11
what we have -- have done for the comfort of the babies.
12
13
14
15
16
Q
And ever since then that's
Is there a name that the nursery nurses have for
that technique?
A
They coined it the Washington wrap because that's
where I came from.
Q
And based on your observations of using that
17
technique, how does it affect the baby's comfort during the
18
circumcision?
19
A
They are very comfortable.
20
MS. VOGLEWEDE:
21
THE COURT:
Mr. Baer.
22
MR. BAER:
Thank you.
23
They mostly sleep.
That's all I have.
Thank you.
CROSS-EXAMINATION
24
BY MR. BAER:
25
Q
Ms. Burgard, in response to questions by Ms.
1335
1
Voglewede regarding the admission chart that you completed,
2
you indicated that you crossed out the name at the time the
3
admission took place.
Do you remember that?
4
A
Yes, I do.
5
Q
You don't remember that as you sit here today, do
A
I remember as from what I have seen in my
6
7
8
9
10
you?
charting.
Q
Do you remember the events of March 6, 1997 as you
sit here today?
11
A
No, I do not.
12
Q
You don't remember crossing that name out as you
13
sit here today, do you?
14
A
It appears to be my handwriting, yes.
15
Q
My question is, do you remember it as you sit here
16
today or are you refreshing your recollection from the
17
records?
18
A
I am refreshing my recollection from the records.
19
Q
And you have no current memory of your care and
20
treatment of Anita Flatt, do you?
21
A
No, I do not.
22
Q
When you saw the videotape -- you saw the
23
videotape, right?
24
A
No, I did not.
25
Q
You have no recollection of caring for Josiah
1336
1
Flatt, do you?
2
A
No, I do not.
3
Q
So what you're saying is that it would be your
4
normal procedure to cross out the name and then write in "on
5
call Kantak," correct?
6
7
A
It would be procedure to cross out the incorrect
information, to place the right, correct information in.
8
9
Is that what you're saying?
Q
And as you sit here today, you don't remember when
you crossed that out, do you?
10
A
No, I do not.
11
Q
I understood you to say that you may have filled
12
that out when you input some data, when you did some
13
charting on the nursery, correct?
14
15
A
Could you repeat that, please?
I'm not
understanding the question.
16
Q
Yeah.
I'm trying to understand when you completed
17
this charting.
18
examination when it was that you completed that charting.
19
20
21
And you weren't clear in your direct
MS. VOGLEWEDE:
to?
Objection.
A
Are you talking --
22
THE COURT:
23
MS. VOGLEWEDE:
24
25
Which charting are you referring
question.
Just a moment.
I object to the form of the
It's vague.
THE COURT:
Can you be specific -1337
1
2
MR. BAER:
Q
I'll rephrase it.
The charting you were
3
talking to Ms. Voglewede about, when you wrote the name
4
Pitts, crossed it out, put in Kantak's name, you don't
5
remember when you did that, do you?
6
7
A
In my practice, I normally fill that out with --
with the admission.
8
Q
Do you remember when you did it?
9
A
In this particular case, no.
10
Q
And you don't even remember doing the admission,
11
do you?
12
A
No.
13
Q
And the admission, at least by the time that you
14
have placed on it, was at 1711?
I'm sorry, 1911?
15
A
16
Q
The admission that you did on -- or the time that
17
you put on the admission would have been 1911?
18
A
Can I look at that?
19
Q
Sure.
20
A
Are you talking -- are you talking the labor room
21
admission?
22
Q
23
admission.
24
A
Sure.
Ms. Burgard, you're the one that did the
You tell me which admission you did.
We have several forms.
I was wondering what piece
25
of paper you were referring to.
1338
1
MS. VOGLEWEDE:
Your Honor, if he's asking
2
questions about charting, he should identify which document
3
it is he's asking about.
4
5
6
7
THE COURT:
Q
Sustained.
Ms. Burgard, you do more
than one admission of a mom to a hospital?
A
We fill out the admission, there is an admission
8
form we fill out.
9
labor room admission note as well.
10
We also state that in the -- our green
That's considered
admission charting as well.
11
Q
So there's two admission forms, Ms. Burgard?
12
A
There's one admission form.
13
the mother's chart?
14
MR. BAER:
15
THE WITNESS:
Could I please see
I will get it for you.
Yes.
16
Q
17
A
This is the admission chart.
18
Q
I'm trying to understand where the other admission
19
20
Page 5?
chart is, Ms. Burgard.
A
I was unclear if you were talking about our labor
21
room flow sheet or if you were talking -- talking about this
22
admission document.
23
Q
And when you filled out the admission document, as
24
you sit here today, you don't remember filling it out, do
25
you?
1339
1
A
No.
2
Q
And you don't know when you filled it out?
3
A
At 1911.
4
Q
Well, would that be the time that you fill it out
5
or would that be the time that she admitted.
6
A
That's the time I fill it out.
7
Q
Okay.
8
And when you filled it out, you would have
been in the room with Anita and Jim?
9
A
Yes, I would have.
10
Q
And you asked them questions and they responded,
11
correct?
12
A
Correct.
13
Q
You asked them a question on page 5, baby's
14
physician, you wrote down Pitts, didn't you?
15
A
Correct.
16
Q
That's because they told you their baby's
17
physician would be Dr. Pitts, correct?
18
A
Correct.
19
Q
You had just arrived at MeritCare, correct?
20
A
I started in October of '96.
21
Q
Sure.
22
So you would have been there about six
months?
23
A
Correct.
24
Q
New kid on the block, correct?
25
A
To MeritCare.
Not in my obstetrical history.
1340
1
2
3
4
5
6
Q
I understand.
But you weren't familiar with the
doctors at the hospital, correct?
A
I was not familiar with every pediatrician or
family practice doctor at that point, no.
Q
Sure.
And so you got the information from the
parents that the baby's physician is Pitts, correct?
7
A
Correct.
8
Q
And then sometime later you discover that Pitts
9
may not be the right one and you cross it out on the baby's
10
chart?
11
A
Correct.
12
Q
You would not have filled out the baby's chart
13
until after the baby was born, correct?
14
A
The --
15
Q
The maternal information.
16
A
No.
17
Q
All right.
That was filled out before the baby was born.
And you crossed out Pitts on the
18
baby's chart?
19
A
Correct.
20
Q
But you didn't cross it out on the mother's chart?
21
A
According to this, no.
22
Q
You didn't even talk to Anita Flatt about changing
23
it, did you?
24
A
Pardon me?
25
Q
Did you talk to Anita about changing the name of
1341
1
her baby's physician?
2
A
Yes.
3
Q
You remember that?
4
A
I crossed the other one off.
I normally -- in my
5
practice, from what I normally do, I always alert them that
6
the pediatrician on call will be seeing their doctor unless
7
they had picked somebody out.
8
crossed it out, it had been brought to my attention.
And in this case, since I had
9
Q
Do you remember doing that, Ms. Burgard?
10
A
I do not remember every specific patient that
11
comes through, no, but I can -- I can only say from what my
12
normal practices are.
13
14
Q
And would you look at page 20.
to that earlier.
You were referring
15
A
Is that in the mom's chart, you're talking?
16
Q
No, in baby's chart.
17
You're familiar with the
protocol at the hospital, correct?
18
A
Yes.
19
Q
You were familiar with it in March of 1997,
20
correct?
21
A
Yes.
22
Q
You know that the protocol says that you have to
23
input the time when you do a task, correct?
24
A
Correct.
25
Q
And the time that is input on the delivery is
1342
1
4:46, correct?
2
A
Correct.
3
Q
That's an error, isn't it?
4
A
No, it is not.
Again this is a summary of a whole
5
labor room process.
6
timed event, so when it's placed in is not exactly relevant
7
with this.
8
inputted more like with the feedings and temperatures.
9
Those are more time relevant than this portion would be.
10
11
12
Q
Almost all these events on here are not
When we're with the babies, charting, times are
Ms. Burgard, Sherry Stoa testified yesterday that
the time is a variable.
A
Would you disagree with that?
It depends upon --
13
14
Q
Would you disagree with that?
Can you manipulate
the time?
15
A
You can place the time in that is to be entered.
16
Q
Right.
17
A
Yes, it does.
18
Q
Would you imply from that or would you deduce from
19
And this says 4:46, doesn't it?
that that you inputted into the computer at 4:46 a.m.?
20
A
Yes, I did.
21
Q
And you didn't remember at 4:46 a.m. on March 7 --
22
or March 6, 1997 that you had given an epidural?
23
A
I'm sorry, what was the time?
24
Q
At 4:46 a.m., you were inputting information into
25
this computer -1343
1
A
Correct.
2
Q
-- right?
3
A
Correct.
4
Q
And you didn't remember giving an epidural?
5
A
The area of this charting is, there's a yes and a
6
no, and you click.
And it was my error, I must have clicked
7
no instead of yes.
But, again, if you look in my
8
documentation under my labor room charting in the mother's
9
chart, it is charted correctly.
10
Q
But this is wrong?
11
A
This is incorrect.
12
Q
Now, if you would go to mom's chart again --
13
A
Okay.
14
Q
-- Ms. Burgard.
The chart that you're referring
15
to, page 11, in the lower part of that, you have marked
16
delivery physician, correct?
17
A
Correct.
18
Q
And you have Lesteberg there, correct?
19
A
Correct.
20
Q
He did not deliver the baby, did he?
21
A
He did not deliver the baby.
22
Q
You delivered the baby?
23
A
Correct.
24
Q
This is incorrect?
25
A
No.
But he did finish the delivery.
He did finish the delivery, he did deliver
1344
1
2
3
4
5
6
7
the placenta.
Q
Okay.
It doesn't say that he delivered the
placenta, it says delivery physician, correct?
A
The birth is not considered finished delivery
until the placenta has delivered.
Q
Now, Ms. Burgard, Ms. Voglewede was asking you
questions about swaddling techniques and how the children
8
tolerated that technique, correct?
9
A
Correct.
10
Q
It's called the Washington wrap?
11
A
Some nurses do call it that, yes.
12
Q
And you have had an opportunity to be in the
13
nursery when babies are being circed, correct?
14
A
Correct.
15
Q
And even with the swaddling technique, you hear
16
17
screams when circumcisions are done, correct?
A
Incorrect.
Some babies do wince or do some
18
crying, but I have never heard a baby scream with a
19
circumcision.
20
Q
Never heard them scream with a circumcision?
21
A
No.
They sometimes cry.
For the most part,
22
babies tolerate it very well.
They most of the time do
23
sleep.
24
on the board when they are restrained.
25
when they are wrapped and they have their pacifier, they
They tend to get more upset when the legs are placed
When they are --
1345
1
tolerate it quite well.
2
Q
You've seen babies grimace?
3
A
Correct.
4
Q
You've heard them cry?
5
A
Yes.
6
Q
Wail?
7
A
Yes.
8
Q
But not scream?
9
A
Not with -- not with a circumcision.
10
Q
How would you distinguish a wail from a scream,
11
Ms. Burgard?
12
A
I guess, to be honest, it's -- it's everybody's
13
definition of what they consider crying or wailing.
14
it's all personal -- for the most part, babies do not
15
scream.
16
others, but for the most part, they do some crying.
17
Q
Some babies get a little more boisterous than
And it's my understanding that you have witnessed
18
circumcisions without benefit of anesthesia; is that
19
correct --
20
A
Yes, I have.
21
Q
-- as well?
22
And there still are some doctors who
do it without benefit of anesthesia at MeritCare, correct?
23
MS. VOGLEWEDE:
24
THE COURT:
25
I mean
Object, relevance.
Sustained.
I've been over this
before.
1346
1
2
Q
And it's my understanding
that you can't tell the difference between the cries of a
3
baby who has been anesthetized and those who have not,
4
correct?
5
MS. VOGLEWEDE:
6
THE COURT:
7
MR. BAER:
8
THE COURT:
9
10
Objection, relevance.
Sustained.
Your Honor, it goes to the -I have ruled on this, Mr. Baer.
Please follow my rulings.
Q
You would agree, would you
11
not, that there's no way to determine how much pain a baby
12
is under or stress the baby is under when being circumcised?
13
A
Again, generally, like I said, there may be some
14
grimacing, there may be some slight crying.
15
babies get more upset when they've had their diaper changed.
16
So it just -- for the circumcision part, they're mostly
17
comfortable.
18
Q
19
20
21
I have seen
Is there any way for you to determine how much
pain the baby is under?
A
Pain is differential.
Unless -- there's no way to
say this baby can rate its pain from a zero to 10.
22
Q
Right.
23
A
I just go by how they are reacting to what is
24
happening.
25
Q
Right.
So there's no way you can tell, right?
And you have seen grimacing, cries and
1347
1
wails, correct?
2
A
Correct.
3
Q
And you can't tell if Josiah Flatt was the wailing
4
kind, correct?
5
A
I never cared for Josiah, so I do not know.
6
Q
But babies are different, aren't they?
7
A
They are.
8
Q
One might be very angry, one might not, correct?
9
A
Correct.
10
MR. BAER:
Nothing further.
11
THE COURT:
Ms. Voglewede.
12
MS. VOGLEWEDE:
13
THE COURT:
14
MS. LORD:
15
Nothing further.
You may step down.
We would call Flo Dreiling.
FLO DREILING,
16
17
oath as follows:
18
DIRECT EXAMINATION
19
BY MS. LORD:
20
Q
Will you please state your name for the record?
21
A
My name is Flo Dreiling.
22
23
THE COURT:
You need to move forward and speak
into the microphone, please.
24
A
My name is Flo Dreiling.
25
Q
(Ms. Lord continuing)
And will you tell the jury
1348
1
2
a little bit about yourself?
A
I'm -- I live in Moorhead.
I've been a nurse for
3
35 years.
4
except for the first year that I worked, which is in
5
Wichita, Kansas as a public health nurse.
6
7
I've worked -- all of that time has been in O.B.
THE COURT:
I need you to speak up a little bit
for me, please.
8
Q
9
MeritCare?
10
A
21 years.
11
Q
At that time how much of that time has been spent
12
13
How long have you been at
at the Family Birth Center?
A
The whole time has been with O.B, except that I
14
was nursery for the first two years probably.
15
not just Family Birth Center.
16
Q
Just nursery,
Were you working at the Family Birth Center
17
between March 5 of 1997 and March 8, 1997, during Josiah and
18
Anita Flatt's admission?
19
A
Yes, I was.
20
Q
Do you recall which day you were working and what
21
22
position you had?
A
I know the day because reviewing the records that
23
I was there the day -- the -- I'm not sure if it's the day
24
after he was born or the day he was born.
25
Q
Would looking at the nursing assignments refresh
1349
1
your recollection?
2
A
Yes, it would.
3
Q
Which position did you have that day?
4
A
I was nursery charge on the evening shift.
5
Q
And what time is the evening shift?
6
A
From three to eleven in the afternoon.
7
Q
Can you explain to the jury what the nursery
8
9
I was there on the 6th.
charge nurse duties are for that shift?
A
I would be the nurse that would -- if there's
10
deliveries, I would go in for the deliveries, do the Apgars,
11
make sure the baby is doing okay.
12
admitting patients, I could also have the mom or baby -- a
13
set or two assigned to me.
14
of the babies, the nurses would come to me, and I would be
15
the one that would have to talk to the doctor or find out if
16
we needed to do something.
I could possibly be
If there was a problem with any
17
I would be the one who would go get the
18
circumcision -- or it wouldn't be necessarily my duty to get
19
the circumcision consents, but I would be the one that would
20
know probably who needed to have one.
21
22
23
Q
How would you know who would need to have a
consent form?
A
From report at 3:00 o'clock from the day shift.
24
25
Q
Can you explain for the jury what happens at
report at 3:00 o'clock?
1350
1
A
The charge nurse, who is the nurse that covers the
2
whole floor, would give his report.
3
would say that this would be a circ for tomorrow or if she
4
didn't say that, then the nursery nurse would talk -- who
5
was in charge during day would talk to me later and tell me
6
which ones would be ones that they had talked to about
7
having a circumcision.
8
9
Q
And a lot of times she
Ms. Dreiling, do you have an independent
recollection of either Anita Flatt or Josiah Flatt?
10
A
No, I don't.
11
Q
You've had an opportunity to review the medical
12
records for both Josiah Flatt and Anita Flatt; is that
13
correct?
14
A
Yes, I have.
15
Q
And in those records, did you find any
16
documentation by yourself regarding this case?
17
A
I filled out the circ consent.
18
Q
Ms. Dreiling, is this the consent form that you're
19
20
referring to?
A
Yes, it is.
21
22
23
Q
Can you explain for the jury what writing is yours
on the consent form?
A
This would be my writing, "Dr. Kantak," "my son,"
24
"circumcision," "mother."
25
sure about.
I think that is mine, I'm not
Then this part down here, about the "no
1351
1
bleeding problems in either family."
2
3
MR. BAER:
where she said, I think that's part.
4
5
I'm sorry, Your Honor, I didn't catch
THE COURT:
A
I would like to --
Can you repeat that, please?
I don't know if "mother" is mine.
But the bottom
6
part, where it says "no bleeding problems in either family"
7
is what I wrote, too.
8
9
10
11
12
13
14
Q
Can you read for the jury
what -A
It says, "Mother states no bleeding problems in
either family."
Q
Ms. Dreiling, when would the top of the consent
form in your routine or practice be completed?
A
I would've -- if I had -- you know, have to be a
15
time that I had time to go out and do the consents.
I would
16
have filled this part out on the top, then I would take them
17
out with me.
18
the -- the -- like 401 or -- you know, the first room and go
Usually I would start, you know, just at
19
down the line and go in and talk to the parents and see if
20
they decided about a circumcision.
21
22
Q
And you have the top part completed before you go
into the room?
23
A
Yes.
24
Q
Ms. Flatt has testified that she cannot remember
25
whether or not the top portion was filled out.
In your
1352
1
practice, has that ever been done, to your knowledge, when
2
you've taken the consent form --
3
A
I've never taken it in not filled out.
4
Q
Ms. Larson has testified in this case as well that
5
it's her signature that witnessed Anita Flatt's signature.
6
Do you know how that came to be?
7
A
I don't recall.
It could be any number of
8
reasons.
We could have been busy, I could have got called
9
out of the room to go in for a delivery.
Maybe Anita got a
10
phone call.
11
I went in and talked to her and then left and didn't get it
12
signed.
13
one -- well, I know would be one who would say if she sees
14
me going -- well, I could go do that and get it signed.
15
Q
I don't -- you know, there's just a reason that
And Rita -- not Rita, but Ruth would probably be
And Ms. Larson is authorized to witness
16
signatures?
17
A
Any nurse can.
18
Q
Ms. Dreiling, you also stated that it's your
19
notation at the bottom of the chart about the mother stating
20
no bleeding problems in either family.
21
information?
22
A
How do you get that
You ask the mother -- I asked -- asked them when I
23
go in the room if there's any bleeding problems in either
24
side of the family.
25
Q
Ms. Dreiling, if a parent has any questions or is
1353
1
unsure about whether or not the parent wants to have a
2
circumcision for her son, would you allow the consent form
3
to be completed?
4
A
No.
5
Q
During your time at MeritCare, how often are you
6
7
in the nursery charge nurse position?
A
It really varies a lot.
I do have -- do all the
8
positions there except for LPN.
I can be the charge nurse
9
on the floor, the nursery charge, I can be a preceptor, so I
10
could have somebody I'm training in the labor room.
So
11
sometimes it may be two months and I haven't been in the
12
nursery, and another time it would be that I'm there two or
13
three times a week.
So I've been probably in the nursery
14
15
hundreds of times.
Q
During your time at MeritCare as a nursery charge
16
nurse, have you had the opportunity to work with Dr. Kantak
17
when she's covering the nursery?
18
A
Yes.
19
Q
Are you familiar with her practice and routine as
20
she's covering the nursery?
21
A
Yes, I am.
22
Q
Is she consistent in what she does in the nursery?
23
MR. BAER:
24
THE COURT:
25
A
Objection, leading.
Overruled.
It's hard to -- I guess I -- I -- I want to
1354
1
explain it in terms of -- like, I grew up on a farm in
2
western Kansas.
3
MR. BAER:
4
THE COURT:
5
6
7
8
9
10
Q
Objection, not responsive.
Sustained.
Ask the question.
Ms. Dreiling, is Dr. Kantak
consistent in her routine?
A
Yes, she is.
I guess I was trying to compare that
to what I'm thinking of as something consistent of -Q
Ms. Dreiling, what do you consider when you are
looking at a practice as far as being consistent?
What do
11
12
you relate that to?
A
That it's something that you routinely do all the
13
time.
14
was that on Mondays, we always did the wash.
15
the way it was.
16
think of Dr. Kantak, in that she comes in and she does
17
this -- you know, she does the -- her routine is just --
18
it's always the same that she does with --
19
20
That's always
And we did the wash and that's the way I
THE COURT:
We're going to have to take a recess.
You may step down.
21
22
That's what I was trying to say about comparing it to
Jurors, remember my admonition.
until 1:00 o'clock.
We're in recess
23
(Recessed at 12:01 p.m. until 1:00 p.m., the same
24
25
1355
1
THE COURT:
2
counsel and jurors are present.
3
4
Let the record show all parties
And we were -- we were on the direct examination,
were we not?
5
6
Okay.
MS. LORD:
Q
This morning we talked
7
about the consent form that was signed by Ms. Flatt in this
8
case.
After a consent form has been signed, what is done
9
10
with that consent form?
A
It's taped up on the -- where -- we have an area
11
in the nursery room we do circumcisions, it's taped up
12
there.
13
when we're doing the circumcision in the morning.
14
consents is signed.
15
Q
Too, we can cross check that we have the right baby
The
And this morning we were also talking about Dr.
16
Kantak's routine when she's covering the nursery as the
17
pediatrician at MeritCare.
18
you were familiar with Dr. Kantak's routine when she is in
19
the nursery.
20
Kantak's routine is or was in 1997?
21
22
23
24
25
A
You mentioned this morning that
Will you describe for the jury what Dr.
Do you want just in the nursery or when we go on
rounds?
Q
If you could just generally describe for the jury
what Dr. Kantak's routine was when she covered the nursery.
A
She'd -- when she comes in, we find out what all
1356
1
we have to do, if we have admissions, discharges, we have
2
circumcisions to be done.
3
problems with any of the babies, we usually try to deal with
4
that in the beginning.
5
Main thing's if there's any
When -- if there's, like -- say there's 10 babies
6
to be examined, and that she will maybe examine a baby, she
7
would go and do a circumcision.
8
kind of an even flow so we can get things done.
9
done with the examination, she would eventually end up going
10
out and making rounds with the -- to the moms and talking to
11
them.
12
13
Q
We try to keep it going in
After she's
When we go out -Ms. Dreiling, you're familiar with Dr. Kantak's
routine when she goes on rounds?
14
A
Yes, I am.
15
Q
Are you familiar with Dr. Kantak's routine when
16
she is -- goes on rounds after she's done a newborn baby
17
exam on a baby boy?
18
A
Yes.
19
Q
Can you describe for the jury Dr. Kantak's routine
20
21
that she followed in 1997?
A
Yes.
When she goes in the room, she would tell
22
them that she has examined the baby, and if -- you know, if
23
there's any problems, she would -- they would talk about
24
that.
25
hepatitis and hearing screen.
She talks to her -- gives them a sheet of paper about
And then if it's a boy, she
1357
1
asks them if they have considered doing a circumcision.
2
When she's -- asks them that, the biggest share of the
3
people are nodding their head "yes" before she says anything
4
else, but she tells them that "I have to, you know, explain
5
things to you."
6
She tells them that the Academy of Pediatrics
7
doesn't feel like it's a necessary procedure, it's more a
8
cosmetic procedure.
9
complications involved, which the two main are bleeding and
10
She tells them that the risks and
infection.
11
There's also she will say maybe a possibility of
12
trauma to the penis, there's a chance of taking off too much
13
foreskin or not enough.
14
a less -- with a circumcised male, there's less chance of
15
urinary tract infections, there's less chance of penile
16
cancer.
17
She tells them that the -- there's
She talks to them about the -- it's --
18
circumcision is a controversial issue.
She tells them that
19
people say that if you're going to circumcise a boy, why not
20
circumcise a girl.
21
there's a feeling that there's maybe less sexual pleasure in
22
a circumcised male.
23
I can remember.
She tells them that people say that
I think that's most of the things that
24
Q
How consistent is Dr. Kantak in her routine?
25
A
It's just what she's done all the time.
She -1358
1
she goes -- a lot of time she will even sit down in the room
2
when she's talking to them when she goes in to -- to talk to
3
the parents.
4
Q
Does she take her time --
5
A
Yes, she does.
6
Q
-- to talk to parents?
7
A
Yes.
8
Q
If they have any questions, does she take the time
9
to answer them?
10
A
Yes.
11
Q
You mentioned hepatitis B information.
12
13
She always asks if they have questions.
Does Dr.
Kantak distribute any information about circumcision?
A
She gives them -- sometimes I would give them the
14
circumcision book, just lay it on the bed, or she would give
15
it to them.
16
the information they've read, decide if they want to have a
17
circumcision done.
She tells them to read it.
And then they, from
18
Q
Ms. Dreiling, I have what's been marked trial
19
Exhibit 105.
20
A
Yes.
21
Q
And prior to MeritCare's use of that book or Dr.
Is this the book you're referring to?
22
Kantak using that book in distributing it to parents, did
23
Dr. Kantak refer the parent to any other material, written
24
material on circumcision?
25
A
We used to have three different teaching books.
1359
1
And one of them was on infant care, and in that book there's
2
a page that talked about circumcision.
3
Q
Would Dr. Kantak refer the parent to that booklet?
4
A
Yes, she would.
She would say the page number to
5
look on there and read about it, and if they had questions,
6
they could ask that.
7
Q
Ms. Dreiling, I have what's been marked Trial
8
Exhibit 58.
9
referring to?
Is this the "Infant Care" booklet that you were
10
A
Yes, it is.
11
Q
There's been some testimony in this case from Ms.
12
Flatt that Dr. Kantak just stepped in the doorway and said,
13
"I will be the doctor doing your circumcision."
14
experience working with Dr. Kantak, have you ever known her
15
to do that?
16
A
It's never happened.
17
Q
How common is it for parents to consent to
18
19
20
21
22
23
In your
circumcision?
A
I think it's probably now around 80 percent of the
parents that do have their babies circumcised.
Q
Do parents ever give reasons for why they want
their child circumcised?
A
Some of the reasons are that there -- that maybe
24
the dad is circumcised, their brothers are circumcised.
25
It's just a -- it's the -- their family has always been
1360
1
circumcised and that's -- mainly that's why they want to do
2
it.
3
4
5
Q
Even if a parent gives that reason, will Dr.
Kantak still give her talk?
A
Yes, she will.
In fact, she sometimes asks
6
them -- if they say they want it -- the baby circumcised,
7
she will ask them why, she'll want to know their reasons.
8
9
MS. LORD:
Thank you, Ms. Dreiling.
I don't have
any further questions.
10
THE COURT:
Mr. Baer.
11
MR. BAER:
Thank you.
12
CROSS-EXAMINATION
13
BY MR. BAER:
14
Q
I understood you to say this morning, Ms.
15
Dreiling, that on the consent form that we looked at, you
16
filled out the place where it said "Anita Flatt," "boy,"
17
"circumcision," and wrote on the bottom, "mom states no
18
bleeding on either side of the family."
19
that testimony?
Do you remember
20
A
Yes.
21
Q
And then my notes indicate that you said you would
22
not allow the consent form to be left in the room or to be
23
completed without having it signed, correct?
24
A
No.
25
MS. LORD:
Objection, lack of foundation.
1361
1
2
3
4
5
THE COURT:
Q
Did you complete the
consent form before you took it into the room, Ms. Dreiling?
A
I wrote on -- could I show on the consent what I
wrote on before?
6
Q
Did you complete it before?
7
A
I completed the top part of it.
8
9
10
11
I did not write
where it says "mother" on the bottom.
Q
I thought you said this morning that might be your
writing?
A
It's my writing, but I would have written that on
12
after I go in and talk to the mom and ask her if -- if
13
there's any bleeding problems in either side of the family.
14
15
Q
Now, Ms. Dreiling, you wrote "baby boy Flatt,"
correct?
16
A
Yes.
17
Q
"Kantak"?
18
A
Yes.
19
Q
"My son"?
20
A
Yes.
21
Q
"Circumcision"?
22
A
Yes.
23
Q
"Mother"?
24
A
I'm not sure if that's my handwriting or not.
25
Q
And "Mother states no bleeding problems in either
1362
1
family," correct?
2
A
Yes.
3
Q
But you didn't witness the signature, did you, Ms.
4
Dreiling?
5
A
No, I didn't.
6
Q
So would it be true that either the form was blank
7
before you took it in there or you took it in and left it in
8
there?
9
A
No.
10
Q
Did you leave the form in there?
11
A
No.
I would -- I need to witness the signature,
12
so I do not leave it in the room because I need to be there
13
when they sign it.
14
Q
All right.
So you filled it out.
And the way it
15
works is you would go to the room, you would have asked
16
"mother states no bleeding problems," correct?
17
A
First, I would ask if they have read the book, and
18
if they decided they wanted the circumcision, then I would
19
ask if there's any bleeding problems in either side of the
20
family.
21
Q
All right.
23
A
Not distinctly.
24
Q
Right.
22
25
You don't remember this at all, do
you?
That would be my routine to do.
But my question -- okay.
You go in there,
you ask them, have you read the book, are there any bleeding
1363
1
problems; they would say, no, right?
2
A
Most of the time, yeah.
3
Q
That's what you wrote here, right?
4
A
Yes.
5
Q
But she didn't sign it there, did she?
6
A
No, she didn't because I--
7
Q
So what did you do with that form?
8
A
I took it out with me.
9
10
I would never leave a
consent in the room for a patient to -- because I need to be
there to sign it -- to witness signing it.
11
Q
You didn't witness signing it, did you?
12
A
No, I didn't.
13
Q
All right.
Now, on the videotape that the jury
14
saw last week, there is videotape -- by the way, you saw it,
15
didn't you?
16
A
I saw the video, yeah.
17
Q
You saw -- you heard the conversation, didn't you?
18
A
Yes.
19
Q
You heard the conversation between Anita Flatt and
20
James Flatt, the father?
21
circumcision and hepatitis B forms to sign."
22
that?
23
A
Anita says, "They left the
I don't remember hearing that, no.
Did you hear
I -- I
24
remember them talking about tomorrow, I think they said,
25
we're going to have the circumcision.
I don't remember -- I
1364
1
remember another time that circumcision was mentioned, but I
2
don't remember what the words were.
3
Q
So you don't remember any conversation where Anita
4
talks to Jim and says, "They left the forms here to sign"?
5
You remember that?
6
A
No.
7
Q
Okay.
8
I -- no, I don't.
And you don't remember taking this in,
correct?
9
A
No.
10
Q
So the way you theorize, Ms. Dreiling, is that you
11
filled it out, you went to room 415 to obtain the signature,
12
you got one question answered, "Mother states no bleeding in
13
either side of the family," and then somehow you're
14
interrupted and you left the room; is that what you're
15
saying?
16
A
Yes.
17
Q
And then at 7:20 p.m., you had Ruth Larson take
18
this to the room, correct?
19
A
I don't recall that I had her take it to the room.
20
I don't know how it came about that she took the consent in
21
to be signed.
22
Q
But you didn't, did you?
23
A
I did not.
24
Q
And you don't know whether the statement down on
25
the bottom, "Mother states no bleeding problems in either
1365
1
family," was put on there before she signed or after, do
2
you?
3
A
It would have been -- I would have written it on
4
there after I asked her that question, so I don't -- it
5
would have been before she signed the consent.
6
Q
The policy and procedure manual that applied to
7
the Family Birth Center, you are familiar with that, are you
8
not, Ms. Dreiling?
9
A
10
11
I haven't read it for a while, but I do know -THE COURT:
A
I'm not hearing your answer.
I haven't read the consent or this procedure for a
12
while, but I am familiar that we have one.
13
14
THE COURT:
You need to speak into the microphone,
please.
15
A
Okay.
16
Q
And doesn't it say here
17
that note must be made at the bottom of the consent that
18
parents were asked if there are any bleeding problems in the
19
family history?
You see that?
20
A
Yes.
21
Q
That's the obligation of the nurse, correct?
22
A
The person that's getting the consent, yes.
23
Q
Well, does it -- anybody get the consent besides
24
the nurse?
25
A
Probably two or three times in all these years,
1366
1
2
3
the doctor has gotten it.
Q
Okay.
Ruth Larson testified that she rarely ever
goes out to get consents, correct?
4
A
Correct.
5
Q
Were you busy that day?
6
A
I don't recall.
When I look at the assignment
7
sheet and there's, like, the first -- first and second baby
8
assigned, and I am assigned maybe to, I think, the third
9
baby, I'm not sure, that tells me that we had several people
10
11
in labor, so I would say we were busy.
Q
Now, I understood you to say that in 1997, you
12
took three different materials with you out to do rounds.
13
Was that your testimony?
14
A
Yes.
15
Q
You took the hepatitis B form, correct?
16
A
Yes.
17
Q
Hearing screen --
18
A
Yes.
19
Q
-- correct?
20
A
Yes.
21
Q
Are you sure the hearing screen was at that time?
22
A
I guess I'm -- that's what I recall.
23
Q
The hearing screen didn't come in until after
24
25
And circumcision, correct?
that, did it?
A
I don't know.
1367
1
Q
And you would agree, would you not, that the
2
signed consent doesn't mean any information was given to
3
mom, correct?
4
A
The consent wouldn't have been taken in to be
5
signed if she hadn't have got the information because I ask
6
them whether or not they got the booklet and if -- if they
7
read the booklet.
8
9
Q
I'm going to show you your deposition.
Do you
remember when I took your deposition, Ms. Dreiling?
10
A
Yes, I do.
11
Q
And you were placed under oath at that time?
12
A
Yes.
13
Q
And did I ask you about whether or not the signed
14
consent form means that information was given?
15
A
Yes, you did.
16
Q
And didn't you answer at that time that there's no
17
way to tell if the information was given?
18
MS. LORD:
May we have a page and line?
19
MR. BAER:
Page 20.
20
THE COURT:
Line?
21
MR. BAER:
22
23
18.
I'm sorry, it's page 21, line 9 through
I'm sorry, 19.
Q
Did I not ask you, Ms. Dreiling, "Question:
And
24
you were here when I was asking Ms. Brass some questions
25
about the circumcision consent form.
Just because the
1368
1
circumcision consent form is signed, doesn't mean that that
2
information was given to mom or dad, whoever signed the
3
consent form, by the physician, does it?"
4
information that is on this consent?"
"Answer:
"Question:
The
Yes."
5
"Answer:
6
No, it doesn't mean that."
Did I read it correctly?
7
A
Yes, you read it correctly.
8
Q
And so is it true that just because the consent
9
10
11
form is signed does not mean any information was given to
the parent, does it?
A
Does it?
Yes or no.
Just because the consent form was signed does
12
mean -- when you asked me this question, I'm -- I'm -- my
13
head -- in my head, I was thinking that just because it's
14
signed -- I'm talking about the information on there.
15
you look a little further in my deposition, when I had a
16
chance to read it over and I read that question, I thought,
17
no, that's not what I meant and I corrected it back further
18
in -- at the end of the deposition.
19
Q
So you changed your testimony?
20
A
Yes, I did.
21
Q
And you would agree that if Dr. Bro was the
If
22
treating obstetrician for mom, that he probably was there in
23
the morning of Josiah's birth, correct?
24
25
A
If he was on call, he would have been.
If -- I
guess, if he was the doctor that delivered, yes, he would be
1369
1
there.
2
Q
What if he wasn't the doctor that delivered?
3
A
Then he probably wouldn't be there.
4
Q
Now, I asked you in the deposition -- I would like
5
you to refer to page 25, if you would.
6
7
MS. LORD:
deposition testimony.
8
9
MR. BAER:
There's no question --
Withdraw that and go on to another
area, Judge.
10
11
I would object to improper use of
THE COURT:
Q
Okay.
Ms. Dreiling, you testified
12
here this afternoon that Dr. Kantak's typical speech to
13
moms -- by the way, are dads included in this process also?
14
A
Yes.
If they're in the room, yes.
15
Q
Did you ever remember seeing James Flatt?
16
A
I don't recall.
17
Q
You testified today that the typical process or
18
the routine of Dr. Kantak would be to describe that it's
19
cosmetic surgery, correct?
20
A
That's what the academy feels, yes.
21
Q
I'm just asking you what you testified this
22
morning.
23
A
Yes.
24
Q
Are you trained in what the academy feels?
25
A
I said, what I hear her say.
1370
1
Q
Okay.
That it's cosmetic, that there can be
2
bleeding, infection, trauma, that there are decreased UTI's,
3
urinary tract infections, decrease in penile cancer, talk
4
about if you do a boy, why not a girl, and then decreased
5
sexual pleasure?
6
A
Yes.
7
Q
Basically highlighted them all?
8
A
Yes.
9
Q
I asked you on March 25, 2001, to describe what a
10
routine -- what her routine was.
You did not mention
11
anything about if boys, why not girls, did you?
12
A
Where -- can you tell me where --
13
Q
Page 25 and 26.
14
A
No, I didn't.
15
Q
Did you mention anything about decreased sexual
16
17
18
pleasure?
A
I did after -- I was interrupted, then I did after
I finished, I did.
19
Q
Did you mention anything about UTI's?
20
A
No, I didn't.
21
Q
Did you mention anything about penile cancer?
22
A
No, I didn't.
23
Q
Now, you have worked with Dr. Kantak and still
24
work with her doing rounds from time to time; is that
25
correct?
1371
1
A
Yes.
2
Q
You've probably done rounds with her within the
3
past several months, correct?
4
A
Yes.
5
Q
You've heard her routine in the past several
6
months, correct?
7
A
Yes.
8
Q
And the routine that you heard in the past several
9
10
months is much fresher in your mind than what it was in
1997, correct?
11
A
Not much has changed.
12
Q
Well, when I took your deposition on March 25,
13
2001, you didn't remember UTI's, did you?
14
A
I didn't.
15
Q
And you have had an opportunity to observe
16
I was nervous, I forgot.
circumcisions, I take it?
17
A
Yes.
18
Q
And babies show discomfort, do they not?
19
20
MS. LORD:
of questioning as outside the scope of direct.
21
22
Your Honor, I will object to this line
THE COURT:
Q
Sustained.
Is it true, Ms. Dreiling,
23
that when you go around at your shift to obtain signatures
24
on consent forms that you tell moms or dads that if they
25
have any questions, they'll have to ask the pediatrician in
1372
1
the morning?
2
A
Yes, I -- if -- if -- if there's a question that I
3
could ask -- that I could answer, like, if they asked me if
4
they use numbing medication, I would say yes, but if they
5
have other problems or questions, I tell them they can talk
6
to the pediatrician.
7
Q
In the morning, correct?
8
A
Well, in the morning or whatever pediatrician's
9
around.
10
Q
Well, are the pediatricians around in your shift?
11
A
There may be -- we may need to call a pediatrician
12
because a baby is having problems, and I could ask them then
13
if they have time to talk to the doctor.
14
happens, but it's usually in the mornings.
15
Q
Right.
That rarely ever
You've never had it happen to you, have
16
you, where parents actually say, hey, I have some more
17
questions?
18
A
Yes.
19
Q
And you leave the form there for them?
20
A
No, I do not leave the form there.
21
Q
You have never left the form in the room?
22
A
I have never left the form in the room.
If I have
23
had -- had the form filled out and I didn't get it signed,
24
if I didn't make sure that the person that was coming on
25
told them that, I've actually torn up a circumcision consent
1373
1
because I didn't want to get maybe the circumcision done
2
without the consent being signed if I didn't get it signed.
3
MR. BAER:
4
THE COURT:
5
Nothing further.
Ms. Lord.
6
BY MS. LORD:
7
Q
Ms. Dreiling, you've testified about a hearing
8
screening that Dr. Kantak discusses.
Was the hearing
9
screening added at MeritCare at some point?
10
A
Yes, it was.
11
Q
And whenever the hearing screening was added, Dr.
12
Kantak started discussing hearing screening with parents; is
13
that correct?
14
A
Yes.
15
Q
The hearing screening, did that affect Dr.
16
17
Kantak's discussion regarding circumcision?
A
No.
18
MS. LORD:
19
THE COURT:
20
No further questions, Your Honor.
Mr. Baer.
RECROSS-EXAMINATION
21
BY MR. BAER:
22
Q
23
24
The hearing screening, though, did come in after
1997, did it not?
A
25
I don't know the date for sure.
MR. BAER:
Thank you.
I don't know.
Nothing further.
1374
1
THE COURT:
2
MS. LORD:
3
THE COURT:
4
MS. LORD:
5
Ms. Lord.
Nothing further, Your Honor.
You may step down.
Defendants would call Dr. Glenn Mastel.
GLENN MASTEL, M.D.,
6
being first duly sworn, was examined and testified on his
7
oath as follows:
8
DIRECT EXAMINATION
9
BY MS. LORD:
10
Q
11
12
13
Good afternoon, Dr. Mastel.
yourself to the jury.
A
My name is Glenn Mastel.
THE COURT:
15
into the microphone.
17
I am a family practice
physician with MeritCare.
14
16
Will you introduce
A
I need you to move forward and speak
My name is Glenn Mastel.
physician with MeritCare.
I'm a family practice
18
19
20
21
Q
Doctor, where did you receive your training to be
a family practice physician?
A
I went to medical school at the University of
North Dakota, trained in family practice here in Fargo.
22
Q
Your residency was in family practice?
23
A
Yes, it was.
24
Q
And how long have you been at MeritCare?
25
A
10 years.
1375
1
2
Q
During your time at MeritCare, did you have an
opportunity to see Josiah Flatt?
3
A
Yes, I did.
4
Q
And did you see Josiah Flatt for well baby
5
checkups?
6
A
Yes, I did.
7
Q
Can you explain for the jury what a well baby
8
checkup is?
9
A
These are the appointments the babies have for
10
their health maintenance.
11
growth and development.
12
Q
They get their shots and check on
Doctor, I would like to direct your attention to
13
the well baby checkup for Josiah Flatt.
14
appointment, is that a two-week well baby checkup?
15
A
Yes.
The 11-day
16
Q
17
MeritCare?
18
A
19
You check to make sure that the baby is growing
and developing normally.
20
THE COURT:
21
Doctor.
22
it.
23
What is done at the first well baby checkup at
A
I am having trouble hearing you,
If you could speak up, I would really appreciate
At your first visit, you're checking -- at two
24
weeks, you want the baby's birth weight to be -- or weight
25
to be back at their birth weight.
That's one of the more
1376
1
2
3
important ones.
Q
And you do a complete exam of the baby.
And how is Josiah Flatt doing at his first well
baby checkup at 11 days?
4
A
Very well.
5
Q
Did Ms. Flatt note any concerns or Josiah's
6
parents note any concerns?
7
MR. BAER:
8
THE COURT:
9
Q
Objection, leading.
Sustained.
Can you explain for the
10
jury what you did at the well baby checkup appointment at 11
11
days?
12
A
You talk to the parents about how it's going at
13
home, how the baby is sleeping, eating, behaving, and do the
14
baby's exam.
15
Q
16
And in the documentation regarding concerns, can
you explain for the jury what you documented?
17
A
There were no concerns raised at that time.
18
Q
At the well baby checkup of 11 days, did you
19
examine Josiah's circumcision?
20
A
Yes, I did.
21
Q
Did you make any determination or any observations
22
regarding the circumcision at the 11-day appointment?
23
A
It was healing.
24
Q
And, Doctor, then I would like to turn your
25
attention to page 19.
Can you explain for the jury what
1377
1
that is?
2
A
This is the baby's two-month well child check.
3
Q
And what is done at the two-month check?
4
A
Again, you listen to the concerns of the parents,
5
6
7
you check the baby's growth and development.
Q
And how is Josiah doing with respect to his growth
and development?
8
A
Normal.
9
Q
And did -- were any concerns noted?
10
A
Yes.
11
Q
Is that a concern of the parent?
12
A
Yes.
13
circumcision.
14
15
Parents were concerned about his
Q
Do you have an independent recollection of Josiah
Flatt and his parents' concern regarding circumcision?
16
A
Yes, I do.
17
Q
And what do you recall?
18
A
His circumcision was slightly asymmetric, and the
19
parents were concerned about that.
20
21
Q
Can you explain for the jury what slightly
asymmetric means?
22
A
With a circumcision, with the foreskin removed,
23
for Josiah, there was a little bit more skin left on one
24
side of the shaft of the penis versus the other side.
25
Q
And is that an uncommon occurrence -1378
1
A
No.
2
Q
-- in a circumcision?
3
Is it uncommon for parents
to have a concern about that?
4
A
No, I don't believe so.
5
Q
Is that a concern -- or was it a concern that you
A
No.
6
7
had?
8
Q
Why not?
9
A
It is normal.
10
Q
Did you have an opportunity to see Josiah Flatt at
11
his four-month appointment?
12
to page 22 of the records.
Turning your attention, Doctor,
13
A
Yes.
14
Q
And what is done at a well baby checkup at four
15
16
17
months?
A
Again, the concerns of the parents, the baby's
growth and development.
18
Q
Were any concerns documented?
19
A
No, there were not.
20
Q
Did you examine the genitalia of Josiah Flatt at
21
that appointment?
22
A
Yes, I did.
23
Q
What were your findings?
24
A
It was normal.
25
Q
Did you see Josiah Flatt for his six-month well
1379
1
baby checkup?
2
A
Yes, I did.
3
Q
Did you note any concerns?
4
A
No.
5
Q
How was Josiah doing?
6
A
Growing and developing very nicely.
7
Q
Did you make any documentation regarding his
8
health status?
9
A
Normal.
10
Q
Did you also examine Josiah's genitalia?
11
A
Yes, I did.
12
Q
And what was your finding?
13
A
It is normal.
14
Q
Did you have an opportunity to see Josiah Flatt at
15
his nine-month well baby checkup?
16
Doctor, to page 30 of Josiah Flatt's records.
17
A
Yes.
18
Q
Okay.
19
Turning your attention,
And did the parents note any concerns or
were any concerns documented at that visit?
20
A
No.
21
Q
How was Josiah's health?
22
A
Excellent.
23
Q
And did you have an opportunity to examine
24
25
Josiah's genitalia?
A
I did.
1380
1
Q
And what were your findings?
2
A
It is normal.
3
Q
Doctor, you mentioned that you have an independent
4
recollection of Josiah Flatt and his parents' concerns.
5
treat many patients, correct?
6
A
Yes, I do.
7
Q
How is it that you have an independent
8
9
You
recollection of this mother and this baby?
A
Within a week of seeing Josiah for his two-month
10
well baby check, I had a phone call from his mother, from
11
our chief of staff, and from our risk management officer,
12
all asking me about his circumcision.
13
14
Q
And did you note any concerns that you had
regarding Josiah Flatt's circumcision?
15
A
No, I did not.
16
Q
Was Ms. Flatt concerned about Josiah Flatt's
17
circumcision?
18
A
Yes, she was.
19
Q
What was her concern?
20
A
That it was not perfectly symmetric.
21
Q
And in your experience in examining children, did
22
Josiah Flatt's circumcision look any different from other
23
circumcisions you've seen in little boys?
24
25
A
No.
MR. BAER:
1381
1
2
THE COURT:
Q
Sustained.
Doctor, in your experience
3
as a family practice physician, have you seen genitalia of
4
little boys?
5
A
Yes.
6
Q
You've done examinations on genitalia of little
7
boys, correct?
8
A
Yes.
9
Q
In your experience in treating Josiah Flatt, did
10
his circumcision look any different than any other -- other
11
boys that you've treated?
12
MR. BAER:
13
THE COURT:
14
MS. LORD:
Ms. Lord.
Your Honor, I'm asking this witness
15
about his examination of Josiah Flatt and whether or not his
16
findings with Josiah Flatt was different than any other
17
findings.
18
19
20
THE COURT:
And the objection is to relevancy, so
what is the relevancy?
MS. LORD:
Your Honor, there's been questions
21
regarding Josiah Flatt's circumcision, and this places it in
22
context with the outcome of the circumcision in this case.
23
THE COURT:
24
MR. BAER:
25
Mr. Baer.
Your Honor, I don't think it is in any
way cross-examinable of this witness that he see 100
1382
1
patients, then he just says, Everybody looks the same.
2
is extremely prejudicial when there's unique features in
3
every one of them, and opens the door to calling and
4
identifying who these other people are.
5
6
7
THE COURT:
Objection's sustained.
It
Let's move on,
please.
Q
Dr. Mastel, in your
8
recollection of this mother, at any time did she note any
9
concern that she had not consented to circumcision?
10
A
No.
11
Q
Doctor, you did not -- did you treat or give any
12
treatment regarding Josiah Flatt's circumcision?
13
A
I did not.
14
Q
Why is that?
15
A
It did not require any.
16
THE COURT:
17
THE WITNESS:
18
THE COURT:
19
MS. LORD:
20
THE COURT:
21
It did not require any treatment.
Thank you.
Thank you, Dr. Mastel.
Mr. Baer.
CROSS-EXAMINATION
22
BY MR. BAER:
23
Q
Good afternoon.
24
A
Good afternoon.
25
Q
We haven't met before, have we?
1383
1
A
No, we have not.
2
Q
I understood you to say that you saw Josiah Flatt
3
for his 11-day checkup; is that correct?
4
A
That is correct.
5
Q
And you were chosen to be his doctor at the
6
request of Anita Flatt, correct?
7
A
I -- I would have to assume so.
8
Q
Okay.
9
A
Correct.
10
Q
And you knew it was going to be a well baby
11
Somehow he got on your schedule, correct?
checkup, basically following the baby, correct?
12
A
Correct.
13
Q
And you began treating -- your first visit with
14
Josiah was on 3-17-97, correct?
15
want to orient yourself.
16
of the clinic records.
That's on page 18, if you
I'm sorry -- you're right, it's 18
17
A
Yes, that was our first visit.
18
Q
And at that time, 11 days after his birth, you
19
examined the circumcision and you noted that it was healing,
20
correct?
21
A
Correct.
22
Q
When you used the term "healing," from a medical
23
standpoint, that implies that it still has not completely
24
25
healed, correct?
A
Correct.
1384
1
2
Q
And so 11 days after his birth, 10 days after his
circumcision, it was still healing, correct?
3
A
Correct.
4
Q
And other than that healing, you noted no
5
anomalies with the foreskin; is that correct?
6
A
That's correct.
7
Q
And isn't it true, Dr. Mastel, that you typically,
8
in infants that have gone through the Gomco procedure or a
9
circumcision, would find a little bit of swelling and
10
perhaps a little redness and a process that is ongoing at 11
11
days, correct?
12
13
14
15
A
Not swelling at that point any more.
Little bit
of redness of the skin yet would be normal.
Q
That's why you wouldn't be able to detect
asymmetry at that time, correct?
16
A
Not necessarily.
17
Q
You didn't detect asymmetry, did you?
18
A
It was not asymmetric enough to comment on.
19
Q
Did you detect asymmetry on March 17, 1997, Dr.
20
21
Mastel?
A
March 17 -The --
22
Q
-- 1997.
23
A
No, I did not.
24
Q
All right.
25
And you're saying, Dr. Mastel, that if
you would have observed it -- or you could have observed it
1385
1
at that time, correct?
Are you saying you could have
2
observed asymmetry at that time?
3
A
Yes.
4
Q
But you didn't note it?
5
A
No.
6
Q
Are you saying that -- that you know that right
7
now or is it just --
8
A
It's not noted.
9
Q
That, therefore, it wasn't there, correct?
10
A
Not necessarily.
11
Q
Okay.
12
Now, let's turn to the page 19 in the
records, Dr. Mastel.
Are you there?
13
A
Yes.
14
Q
This is from 5-7-97, correct?
15
A
Correct.
16
Q
And then you diagnosed, do you not, circ
17
18
asymmetric, correct?
A
The comment on the genitalia exam is the circ is
19
asymmetric.
20
Q
21
The diagnosis is normal well child check.
All right.
So a normal well child check could
mean asymmetry, correct?
22
A
Correct.
23
Q
And so you could have normal kids with asymmetric
24
25
cuts, correct?
A
Correct.
1386
1
2
Q
You could have normal kids and a normal exam that
had adhesions, correct?
3
A
Correct.
4
Q
So the fact that you say he's developing normally
5
says nothing about the status of his circumcision or the
6
adhesions or the asymmetry, correct?
7
8
9
10
A
It says that -- that they are within an acceptably
normal range.
Q
Okay.
Then on May 7, 1997, it became out of
acceptable normal range because you noted it, correct?
11
A
No, that's not correct.
12
Q
Oh, so you noted it because somebody forced you
13
to, Dr. Mastel?
14
A
The mother brought it up as a concern.
15
Q
So you only note what mother brings up?
16
A
On the things in life that are within a normal
17
18
range you otherwise wouldn't note.
Q
Okay.
What I'm trying to understand, Dr. Mastel,
19
is that from your testimony, I'm understanding that you see
20
many, many kids with asymmetry, correct?
21
A
I see many, many kids.
22
Q
With asymmetry?
23
A
Not many with asymmetry.
24
Q
How about with adhesions?
25
A
Yes.
1387
1
Q
Many with adhesions?
2
A
Some with adhesions.
3
Q
All right.
4
5
Isn't that something that is at least
worthy of a note?
A
If it is a thick, dense adhesion, if it is a
6
remarkable amount of asymmetry, yes.
7
amount, no.
8
Q
9
10
11
12
13
Okay.
If it's a minor
So can we conclude that on May 7, 1997,
there was a significant amount of adhesions or asymmetry
because you made a note of it?
A
I made a note of asymmetry of the circumcision and
a note of a normal well child.
Q
But as you suggested, normal well child could mean
14
a child with asymmetry, correct?
15
A
There is certainly a range of normal.
16
Q
I take it, Dr. Mastel, that the only way you have
17
a recollection of this event is because the risk manager got
18
in touch with you and Dr. Montgomery got in touch with you,
19
correct?
20
A
And Mrs. Flatt.
21
Q
And Mrs. Flatt.
22
Turn to page 52 of those clinic
records, would you, please.
It's close to the back.
23
A
Yes.
24
Q
Is that your handwriting on there?
25
A
Yes, it is.
1388
1
Q
Who was contacting you, Dr. Mastel?
2
A
Anita Flatt.
3
Q
Did you call her back?
4
A
Yes, I did.
5
Q
And your diagnosis at that time?
6
A
"Has slightly asymmetric circumcision, parents
7
worried, but reassured that this is cosmetic only."
8
Q
Is this all in your handwriting, Dr. Mastel?
9
A
What I just read is all in my handwriting.
10
Q
How about the "5-7-97 checkup, question on penis?"
11
Is that in your handwriting?
12
A
No, that is not.
13
Q
How about the "2:30 p.m., talked with Dr. Mastel
14
before, wants doctor to call"?
Is that your handwriting?
15
A
That is not.
16
Q
Are you certain that you talked to Anita Flatt on
17
5-14-97, Dr. Mastel?
18
A
Yes.
19
Q
Because of this record?
20
A
Yes.
21
Q
Then if you would look at page 51.
22
Do you see
that?
23
A
Yes.
24
Q
And is that a telephone message for you to call
25
Jean Pladson?
1389
1
A
Yes, it is.
2
Q
And Jean Pladson is with risk management, correct?
3
A
Yes, she is.
4
Q
And on the bottom it says, "Newborn 3-17, two-week
5
well child check, March"?
Is that -- did I read that
6
correctly?
7
A
I believe so.
8
Q
And then below it it says, "circ."
Is that your
9
handwriting there, Dr. Mastel?
10
A
Yes, that is.
11
Q
Other than those two notes, is there any other
12
indication that you were involved in resolving the issue
13
with Ms. Flatt on her child's circumcision?
14
A
Not that I'm aware of, no.
15
Q
Do you recall Dr. Montgomery calling you and
16
chatting about the circumcision?
17
A
Yes.
18
Q
When was that?
19
A
That was within the same week.
20
Q
Beyond that, you have no further contact -- I'm
21
sorry, you did have -- you had another appointment with
22
Josiah Flatt on July 11, 1997, correct?
23
A
What page are you on?
24
Q
22.
25
A
Yes, that was his next checkup.
1390
1
Q
2
today?
3
A
4
Now, do you remember that checkup as you sit here
That I do not remember as an independent
recollection.
5
Q
The only one you remember is the first one?
6
A
The second one.
7
8
Q
The second one.
Okay.
And, I take it, the
genitalia, you put down -- what is that an abbreviation for?
9
A
Within normal limits.
10
Q
WNL?
11
A
Yes.
12
Q
And within normal limits, in your mind, would not
13
necessarily be symmetric, it could have some asymmetry,
14
correct?
15
A
Correct.
16
Q
It could have adhesions, correct?
17
A
Correct.
18
Q
And you're not a urologist, are you?
19
A
No, I'm not.
20
Q
And you would defer to a urologist's expertise on
21
diagnosing a penile problem, correct?
22
A
Yes.
23
Q
Then your next visit with Josiah Flatt was on page
24
26.
And I'm not seeing a date on that.
25
out, Dr. Mastel?
Can you help me
1391
1
2
3
A
It should be approximately two months after the
last.
Q
Is there a date on this?
4
A
There's not a date on that.
5
Q
Can you tell us why these records don't have
6
dates?
7
A
No, I can't.
8
Q
And you would have known at this time that Josiah
9
had already been evaluated by a urologist, correct?
10
A
Yes.
11
Q
You would have read the urologist's note, correct?
12
A
Yes.
13
Q
And you would have read in the note that the
14
urologist lysed the adhesions at the visit on August 1 or 2,
15
1997, correct?
16
A
Correct.
17
Q
And there's no way to tell what date this was on,
18
is there?
19
A
Not on that page, no.
20
Q
Is there on any page that you're aware of, Dr.
21
Mastel?
22
A
What do you mean?
23
Q
Well, can you tell what time you had this visit so
24
we can identify how long after the lysing you saw Josiah
25
Flatt?
1392
1
A
Looking backwards through his immunization record,
2
that visit took place on September 15 -- September 15, 1997.
3
4
Q
So you saw Josiah Flatt six weeks after Dr.
Sawchuk evaluated him --
5
A
Yes.
6
Q
-- and treated him, correct?
7
A
Yes.
8
Q
And you were then aware at the September 15
9
evaluation that Dr. Sawchuk treated him, correct?
10
A
Correct.
11
Q
Lysed his adhesions, correct?
12
A
Correct.
13
Q
And advised that nothing further be done until
14
adolescence, correct?
15
A
Correct.
16
Q
And again on September 15, when you diagnosed his
17
genitalia as being within normal limits, that would not mean
18
there was no asymmetry, correct?
19
A
Correct.
20
Q
And on that last visit, the September 15 visit
21
that isn't dated, you wouldn't expect Anita Flatt to express
22
any concerns about her child's penis if she had seen Dr.
23
Sawchuk and was treating with Dr. Sawchuk, would you?
24
25
A
it.
Sure, you would if she had further concerns about
We see patients after they've been to our specialists.
1393
1
They see them back in follow-up all the time.
2
there's questions, we address them.
3
Q
Of course, if there's questions.
And if
But if a doctor,
4
a specialist, tells a mom there's nothing to do, wait until
5
he's a teenager, you wouldn't expect the mom to come in and
6
raise Cain with you, would you?
7
8
9
A
If she was -- no, if that was under -- the answer
was understood and explained, we wouldn't expect that.
Q
There was an inquiry about whether or not Ms.
10
Flatt asked about informed consent.
11
didn't raise that issue.
And you said, no, she
Did you ever raise it to her?
12
A
No.
13
Q
And you knew as of May 14, 1997, that the risk
14
management department was involved, correct?
15
A
Is that the date on the note from Jean Pladson?
16
Q
Look on page -- look on page 52.
17
A
I got a call from risk management on 5-20-97.
18
19
20
I
called Ms. Flatt on 5-14.
Q
Okay.
Tell me how -- oh, I'm sorry.
On page 52,
would this have been a telephone mount from your clinic?
21
A
Yes, it is.
22
Q
Dr. Montgomery wrote a letter to Ms. Flatt about
23
what he found in June of 1997.
24
review that letter?
25
A
Did you have a chance to
I have never seen it.
1394
1
2
MS. LORD:
Objection, Your Honor, outside of the
scope of direct.
3
THE COURT:
4
MR. BAER:
Sustained.
Your Honor, it goes into this exact
5
time period he's testifying that everything is normal.
6
want to see whether he received a copy of it.
7
THE COURT:
8
Wasn't that your answer?
9
THE WITNESS:
10
MR. BAER:
11
THE COURT:
12
I
He just said he had never seen it.
Yes, it was, ma'am.
Nothing further.
Ms. Lord.
13
BY MS. LORD:
14
Q
Doctor Mastel, you described your notation within
15
normal limits when describing Josiah Flatt's circumcision.
16
Can you describe for the jury what you mean by within normal
17
limits?
18
19
20
21
22
23
24
A
That it's within an acceptable range of what --
what can be considered normal.
Q
Did you note any abnormalities at all with Josiah
Flatt's circumcision?
A
It was slightly asymmetric.
MS. LORD:
questions.
Thank you, Doctor.
I have no further
25
THE COURT:
Mr. Baer.
1395
1
RECROSS-EXAMINATION
2
BY MR. BAER:
3
Q
Dr. Mastel --
4
A
Yes.
5
Q
6
7
8
-- your term of within normal limits implies that
a circumcised penis is normal, correct?
A
The circumcised penis or this circumcised penis?
Which would the question be?
9
Q
Well, is a circumcised penis normal?
10
A
This baby's circumcised penis was normal.
11
Q
Absent the foreskin, correct?
12
A
Correct.
13
Q
Except that part that had adhered to the glans,
14
15
16
17
18
19
correct?
A
No.
The small amount of adhesions is certainly
acceptable as normal.
Q
Okay.
But that's the foreskin that was adhering
to the glans, correct?
A
Correct.
20
MR. BAER:
Thank you.
21
THE COURT:
Ms. Lord.
22
MS. LORD:
Nothing further.
Nothing further.
23
THE COURT:
24
MS. VOGLEWEDE:
25
You may step down.
Your Honor, defendant calls Dr.
Theodore Sawchuk.
1396
1
THEODORE J. SAWCHUK, M.D.,
2
3
oath as follows:
4
5
DIRECT EXAMINATION
BY MS. VOGLEWEDE:
6
Q
Good afternoon, Dr. Sawchuk.
7
A
Hi.
8
Q
Make sure you tip the microphone close to you --
9
A
Okay.
10
Q
-- so the jury can hear.
11
Would you state your
name, please?
12
A
Theodore J. Sawchuk.
13
Q
Where are you employed?
14
A
At MeritCare Medical Center.
15
Q
What is your position there?
16
A
I am a urologist.
17
Q
What does that specialty cover?
18
A
Basically covers the genital/urinary tract and
19
genitalia of the male system.
20
21
22
23
Q
Would you tell the jury where you received your
medical training?
A
Vanderbilt Medical School, and then University of
Virginia for urology.
24
Q
And how long was your urology specialty training?
25
A
Six years.
1397
1
2
Q
Doctor, were you involved in the care and
treatment of Josiah Flatt?
3
A
Yes.
I saw him once in the office.
4
Q
And on what date did you see him?
5
A
Can I refer to my note?
6
Q
Yes.
We have a copy here, Doctor, of Exhibit 6,
7
which is the record of Josiah Flatt.
8
find it -- I have to get a page number here.
9
MR. BAER:
Page 24.
10
MS. VOGLEWEDE:
11
MR. BAER:
12
THE WITNESS:
13
14
Q
And I believe you will
Page 24 of Exhibit 6.
Of the clinic records, Doctor.
Okay.
And, Doctor, there's a
note on page 23.
15
A
Mm-hmm.
16
Q
Does that indicate that this child was seen in
17
your department, the urology department?
18
A
Yes, he was.
19
Q
And what's the date on that note?
20
A
August 1, 1997.
21
Q
And what's the date on your dictated note, Doctor,
22
on page 24?
23
A
It's August 2, 1997.
24
Q
And do you know what the date was that you did see
25
him?
1398
1
2
A
I -- I would assume it's August 1.
That was what
my nurse put down.
3
Q
Was that an error in the notation?
4
A
Or I could have dictated it on the 2nd or it could
5
be an error.
6
Q
7
Okay.
Did you see Josiah Flatt at the request of
Dr. Montgomery?
8
A
Yes, I did.
9
Q
What was your understanding of why Dr. Montgomery
10
11
12
wanted you to see this child?
A
There was a question of just the appearance of the
circumcision and the result and wanted my opinion on it.
13
Q
And who had the question about the appearance of
14
the penis?
15
A
My understanding was it was the parents.
16
Q
Okay.
17
that you saw him in August?
18
A
19
has noted.
20
Q
21
And how old was Josiah Flatt at the time
It says four months here is -- is what my nurse
And was that the only visit that you had with this
child and mom?
22
A
Yes.
23
Q
How is it that you would be the person that Dr.
24
Montgomery would request to see a mom with a question like
25
this?
1399
1
A
At that time I -- in our medical group, there were
2
two urologists, and just the way that my practice had
3
evolved, if there were pediatric questions that were coming
4
up, I would've seen those patients, and that was why he
5
would have asked me.
6
Q
Do you see both pediatric and adult patients?
7
A
Yes, I do.
I'm a general urologist, and
8
pediatrics is, you know, probably roughly 10 percent of my
9
patients -- or my caseload, something like that.
10
Q
And how long have you been in practice at
11
MeritCare?
12
A
Since September of 1993.
13
Q
Do you perform circumcisions?
14
A
Yes, I do.
15
Q
And would your training and experience allow you
16
to answer questions that a parent might have about a
17
circumcision?
18
A
Yes.
19
Q
And including questions about the appearance?
20
MR. BAER:
21
THE COURT:
22
Q
Objection, leading.
Sustained.
Doctor, how would your
23
training and experience allow you to address concerns that a
24
parent might have about a circumcision?
25
A
Well, in my training, we did both pediatric
1400
1
circumcisions and adult circumcisions, so we see that broad
2
gamut of patients.
3
have a good idea of what a result would be and if any
4
potential problems.
5
Q
And so having performed that, I would
And when you say potential problems, would you be
6
able to address questions a mom might have going into the
7
future as well as the present?
8
A
Yes.
9
Q
Doctor, when -- who accompanied the child to this
10
visit?
11
A
12
Looks like the -- I believe it was the mother.
Yeah, the mother is what my nurse has recorded here.
13
Q
14
visit?
15
A
And what were her concerns at the time of that
About the appearance of the penis after the
16
circumcision as far as any foreskin or extra skin, I guess,
17
is what was my understanding.
18
Q
And, Doctor, have you had a chance to look at the
19
videotape which the Flatts took of the appearance of this
20
child's penis shortly after the visit to you in August of
21
1997?
22
A
Yes, I have.
23
Q
And did that video refresh your memory about the
24
25
appearance of this child's penis?
A
Yes, very much so.
I mean, this was back in 1997
1401
1
2
3
4
so -Q
Dr. Sawchuk, would you describe your findings in
your assessment that you made at that visit?
A
And going by note and my recollections from the
5
video, the question about the appearance of the penis as far
6
as being any extra skin or foreskin attached to the penis,
7
and when I assessed and looked at the child, what I noticed
8
was that there were what looked like adhesions, so there was
9
some attachment of the skin from the shaft right onto the
10
glans, which is the -- you know, the part that's exposed
11
once the child's been circumcised.
12
appeared to be more on the left than on the right side.
13
so it almost looked like maybe there was extra skin on that
14
side versus the other side.
15
yeah, that confirmed my understanding what my note had
16
described here.
And there was some on -And
And when I looked at the video,
17
Q
How common are adhesions after a circumcision?
18
A
You see them very commonly, especially as children
19
are younger.
20
Q
And how are adhesions treated?
21
A
Well, if the adhesions do not -- a certain number
22
of these will just naturally pull away, but if they're not,
23
then you need to pull the skin back to basically do what we
24
call lyse the adhesion.
25
Q
And how do adhesions sometimes naturally pull
1402
1
2
away?
A
Well, either with washing -- as a child gets
3
older, he would have erections during his sleep.
You
4
might -- there might be skin -- or these skin cells that are
5
on the glans gradually slough, and so you have this extra
6
skin that's not constantly being shed and so that may
7
help -- as it collects under there may help it pull away.
8
Those are kind of the people's feeling about why that may
9
happen.
10
11
12
13
Q
Doctor, can you describe how firmly the adhesions
were attached in Josiah's case, based upon your note?
A
They were not -- they were not firmly attached.
mean, they pulled away quite easily, according to my note.
14
Q
Did Josiah Flatt have a skin bridge?
15
A
No, he did not.
16
Q
And, Doctor, did you find any asymmetry when you
17
18
I
examined Josiah Flatt?
A
According to my note, when -- just the way the
19
adhesions had -- had attached to the base of the penis, it
20
would give that appearance, that there was -- there was more
21
skin pulled up on one side to the other.
22
call that asymmetry.
23
24
25
Q
I guess you could
I mean, that's an observation of --
And was that asymmetry affected after you pulled
those adhesions away?
A
Once they pulled away, the skin fell back and I
1403
1
did not see any skin over the glans.
And I felt that, you
2
know, the skin that this -- he had -- had an adequate amount
3
of skin that had been removed at the circumcision.
4
I noticed that, just in one area, there may have been a
5
little what I called redundant skin or a little extra skin.
6
But as you look in the note, he had an erection.
7
looked at that, it looked like -- I didn't think it would be
8
a problem.
9
stretched out nicely, and there wasn't really a lot of extra
10
skin left.
11
Q
12
13
14
15
And then
As I
He had an erection, looked like the skin
Can you describe where that amount of redundant
skin was located?
A
It would be what I refer to the base of the penis,
more so on the left side, kind of on the shaft.
Q
And is that, Doctor, what you were referring to in
16
the first paragraph of your physical exam where you state
17
"There also is a minor amount of redundant skin actually on
18
the shaft, but not protruding over the penis"?
19
A
Yes.
20
Q
Doctor, based upon your assessment of Josiah Flatt
21
at that visit, was it your opinion that he had had an
22
improperly performed circumcision?
23
MR. BAER:
24
THE COURT:
25
Q
Objection, leading.
Sustained.
Doctor, were you able
1404
1
to reach any conclusions or did you form any opinions at the
2
time of that visit about whether his circumcision had been
3
properly performed?
4
MR. BAER:
Objection, Your Honor.
This witness
5
has not been disclosed as an expert witness nor his opinion
6
disclosed prior to this time.
7
MS. VOGLEWEDE:
Your Honor, he was asked to
8
evaluate this child based upon concerns raised by the mother
9
and to look at the appearance of the circumcision.
10
MR. BAER:
He is being asked at this time to
11
testify as an expert witness, giving opinions that are
12
beyond what he indicated in his note.
13
is contrary to normal practice to allow this witness to
14
testify as an expert in the form of opinion that has not
15
been previously disclosed.
16
17
THE COURT:
20
21
Did you have access to the medical
records?
18
19
And I believe that it
MR. BAER:
I certainly did have access to the
THE COURT:
Is the opinion contained in the
records.
medical records?
22
MR. BAER:
No.
23
MS. VOGLEWEDE:
Your Honor, I'm not asking him for
24
any opinions on the standard of care issues or any of that;
25
simply based on the appearance, did he reach any conclusions
1405
1
about whether it was an improperly done circumcision.
2
MR. BAER:
Your Honor, that is precisely the
3
opinion that needs to be disclosed so that I can get an
4
adverse evaluation or could have my expert testify on that
5
issue.
6
first time it's coming up.
7
allow him at this time to insert an opinion.
This was not previously disclosed.
8
9
THE COURT:
It is prejudicial to our case to
Objection is overruled.
Answer the
question.
10
11
This is the
THE WITNESS:
Q
Can you state the question again?
Dr. Sawchuk, were you
12
able to form any opinions at that visit on whether or not
13
the circumcision had been properly performed?
14
A
Yes.
My opinion at the time was that an adequate
15
amount of skin had been removed for the circumcision.
16
that is how I define a circumcision.
17
know, I thought it had been done okay.
18
been removed.
19
glans.
20
Q
And
I thought it -- you
The foreskin had
I did not see any extra foreskin over the
That's my definition of a circumcision.
Dr. Sawchuk, was
21
Josiah Flatt having any functional problems that the mom
22
reported to you at that time?
23
A
No.
She reported that he voided well, did not
24
have any crying or anything with urination.
And what I
25
observed, you know, he had an erection in the office, and
1406
1
what I observed from the penis I didn't think there would be
2
any functional problems.
3
Q
Based on the information that Anita Flatt provided
4
and on your assessment of this child, did you expect any
5
functional problems in the future?
6
A
I did not.
The note goes into I spent a lot of
7
time just discussing that, what I thought things would --
8
how the penis would grow, and what I predicted the penis
9
would look like in the future.
I did not feel there would
10
be any functional problems, he would be able to void okay.
11
I thought, with erections, erections would be fine.
12
thought the appearance would be adequate.
13
14
15
Q
And I
And what did you tell mother that you expected in
the future with regard to both function and appearance?
A
Same thing.
I thought function would be fine.
16
And I thought the appearance would be acceptable as he got
17
older.
18
Q
19
20
What was it about him growing older that you felt
would have any effect on the appearance of the circumcision?
A
Well, in the infant or the younger patient, I
21
mean, the penis is quite small and often it's retracted, and
22
it can essentially change in appearance.
23
small, it's retracted as the penis pulls back in, especially
I mean, it's quite
24
if they -- as kids often go through a stage where they kind
25
of have this baby fat, and so it's almost as if the penis
1407
1
sometimes gets enveloped by the skin surrounding it.
2
And so to, you know, make a judgment based on just
3
what ii looks like then, you can't, because the kid is going
4
to grow, the penis is going to get much bigger, and they
5
tend to lean out, and they don't have that baby fat pushing
6
any of the shaft skin, even over the glans.
7
who are very obese, sometimes you can't even find their
8
penis because it's hidden in the shaft pad like that.
9
thought was, I thought he would do fine as he got older.
10
Q
I see adults
So my
Doctor, you referred to these adhesions and the
11
fact that you took them down in the clinic.
12
describe -- is that what's meant by lyse?
Would you
13
A
Yes.
14
Q
And would you explain how you did that.
15
A
What I basically do is find a -- pull gently on an
16
edge, and sometimes I have to -- I have a little --
17
sometimes you use a little probe to kind of loosen the edge.
18
And then once that edge starts, usually they pull away very
19
easily without a lot of pressure force or anything.
20
Q
Based upon your note, was that the case with this
21
child?
22
A
23
Yes.
According to my note, that's what I
described, that it pulled away very easily.
24
Q
How did he respond to that process?
25
A
I note that he cried.
I note the time, 45
1408
1
seconds, and the mother calmed him down, and he appeared to
2
be fine.
3
Q
Before you did -- pulled down those adhesions, did
4
you make recommendations to Anita Flatt about what the
5
options were?
6
A
Yes.
I noted by my exam it looked like the
7
question of the appearance was due to the adhesions.
And so
8
I thought it was reasonable to offer we could pull down the
9
adhesions in the office.
10
Q
And did the mother elect to have that done?
11
A
Yes.
12
Q
After you did that, Doctor, did you expect any
13
further treatment would be needed of those adhesions?
14
A
I told her to put some ointment on over the next
15
week or two.
16
it's important to keep ointment on.
17
the note, but what I always tell parents is, always pull
18
back as you clean to make sure these adhesions don't form.
Occasionally those adhesions will reform, so
And I didn't say it in
19
Q
You said earlier that you spent some time talking
20
to the mom?
21
A
Mm-hmm.
22
Q
Did your note reflect that?
23
A
Yes.
24
Q
And what were you talking to her about?
25
A
Well, going over what I assessed as how -- as how
1409
1
the penis looked.
2
basically, in the note, we talk about looking at it, looking
3
at the overall appearance of the shaft of the penis.
4
And after the adhesions were lysed,
I said there could be some pigment changes.
5
Sometimes kids who are circumcised, you see some pigment
6
changes on the skin just -- just beneath the glans.
7
not think that there was any extra skin that was covering
8
over the glans that would be a problem.
9
I did
Then we talked about, you know, how he might look
10
down the road, would there would be a problem when he's in
11
the locker room and at puberty, that kind of thing, and as
12
an adolescent, and we talked about that.
13
thought he would do fine.
14
okay.
15
Q
And I thought -- I
I thought his penis would look
Doctor, during that assessment that you made of
16
Josiah, did you find any condition that you felt was
17
affecting his function at that time or would affect his
18
function in the future?
19
A
No.
20
Q
And have you had an opportunity to look at photos
21
that were taken of his penis recently, within about the past
22
month, by Ms. Flatt?
23
A
Yes, I have.
24
Q
And what is your impression of the appearance of
25
his penis?
1410
1
A
I thought it looked like a normal circumcised
2
penis, as I thought it would look like when I saw him in
3
'97.
4
Q
Doctor, did you see anything during your
5
evaluation that you expected to impair his sexual function
6
in the future?
7
A
No.
8
MS. VOGLEWEDE:
9
THE COURT:
10
That's all I have.
Mr. Baer.
I'm sorry, we need to take a break.
11
going to recess until 2:35.
12
Remember my admonition.
13
Thank you.
Jurors, we're
You may step down, Doctor.
14
15
16
17
THE COURT:
18
Ms. Voglewede, have you finished your direct?
19
MS. VOGLEWEDE:
20
THE COURT:
21
Doctor, you are still under oath.
Yes, I have, Your Honor.
Thank you.
Mr. Baer.
CROSS-EXAMINATION
22
BY MR. BAER:
23
Q
Dr. Sawchuk, we haven't met before, have we?
24
A
No.
25
Q
You're an employee of MeritCare Medical Group; is
1411
1
that correct?
2
A
Yes.
3
Q
Your colleague is Dr. Sunita Kantak?
4
A
Yes.
5
Q
Your colleague is Dr. Mastel?
6
A
Yes.
7
Q
And in June of 1997, do you recall receiving a
8
9
10
call from Dr. Montgomery about a pediatric urology issue?
A
I don't know what the day was, but I -- I vaguely
remember Dr. Montgomery talking to me about seeing a child,
11
yes.
12
Q
At that time -- this would have been June of '97?
13
A
I -- I don't know the date, no.
14
Q
By the way, let's clear something up.
You don't
15
have any current recollection of your visit with Josiah
16
Flatt, do you?
17
A
I vaguely remember -- I vaguely remember the
18
mother being there, I remember Dr. Montgomery speaking to me
19
about it, yes.
20
21
22
Q
But did Montgomery speak to you about it on August
1 or August 2, whichever day it was?
A
I don't know the date.
I just know he was -- he
23
spoke to me about -- there was a question about a
24
circumcision, would you see the child.
25
Q
Okay.
But your recalling on direct examination
1412
1
2
was as a result of looking at your note, correct?
A
No.
I look at the note, but I do recollect
3
when -- that -- that Dr. Montgomery had talked to me.
4
do recollect vaguely the office visit.
5
6
Q
Okay.
The office visit was set up by Jean
Pladson, correct?
7
A
That's my understanding, yes.
8
Q
You knew who she was at that time?
And I
9
A
Yes.
10
Q
You knew she was a risk manager, correct?
11
A
Yes.
12
Q
And when a risk manager calls, they're trying to
13
manage risks, correct?
14
A
I can't speak for her job.
15
Q
You know what she does though, right?
16
A
Right, I know what she does, yeah.
17
Q
You know what Dr. Montgomery does, right?
18
A
Correct.
19
Q
Doesn't he try to put out, you know, patient
20
I mean I --
concerns, correct?
21
A
Well, if -- I mean, if there's patient concerns
22
that we need to look at, he will -- he will find someone and
23
have them look at it, yeah.
24
25
Q
Sure.
And you were aware as early as June that
this case was in basically the risk management department,
1413
1
correct?
2
A
At the time when Montgomery talked to me, I did
3
not.
4
this patient.
5
I just -- Montgomery said there's a question about
Q
Okay.
And are you aware of Montgomery
6
communicating with Anita Flatt?
7
A
No, I'm not.
8
Q
Are you aware of whether or not Montgomery
9
expressed to you some concerns about function and
10
appearance?
11
A
12
13
14
I just remember that there were questions about
the appearance.
Q
That's because that's all you have in your note,
correct?
15
A
That's what I have in my note, yes.
16
Q
Would it surprise you to learn that Dr. Montgomery
17
in June of 1997 wrote to Anita Flatt, indicating that her
18
concerns about function and appearance were not well
19
founded?
Had you heard that before?
20
MS. VOGLEWEDE:
21
THE COURT:
22
23
24
25
Q
Sustained.
I take it, Dr. Montgomery
did not share his communication with Ms. Flatt, correct?
A
I don't know.
I mean I just -- I know Montgomery
said, There's this patient, that there's a question about
1414
1
the circumcision, will you see the patient.
2
the patient.
3
Q
I agreed to see
That's what I know.
Dr. Montgomery testified that he called you and
4
talked to you in June of 1997 about a pediatric patient.
5
you recall that phone conversation?
6
A
I recall it -- a conversation, yes.
Do
I don't know
7
the dates, and I just recall that he called me and asked me
8
about it, yes.
9
10
Q
But did he call you on two occasions now?
getting confused, Dr. Sawchuk.
11
A
No, I -- I do not recall two calls, no.
12
Q
Okay.
13
14
I'm
The only call you remember is whether or
not you would be willing to see the patient, correct?
A
If I would see the patient, there was concern
15
about the appearance of the circumcision, that's the call I
16
recall, yes.
17
mean --
18
19
Q
I mean, this is five and a half years ago.
I understand that, Doctor.
You just recently
reviewed a videotape; is that right?
20
A
Yes.
21
Q
When did you review it?
22
A
Two weeks ago, I think, on a Saturday.
23
Q
And you're also a colleague of Dr. Robert
24
25
I
Montgomery, correct?
A
Yes.
1415
1
2
Q
And one of your colleagues is the defendant,
correct?
3
A
Yes.
4
Q
It is not usual for you to obtain patients through
5
Dr. Montgomery and Jean Pladson, is it, Dr. Sawchuk?
6
A
No, it is not.
7
Q
In fact, this is perhaps one of the only times
8
9
10
you've had a patient referred through this method, correct?
A
There were several cases that I can recall, but
it's infrequent, yes.
11
Q
You've been there what? 10 years?
12
A
Almost 10 years, yeah.
13
Q
And you indicated in direct examination that
14
you -- I thought you said 10 percent of your practice was
15
pediatric urology?
16
A
Yes.
17
Q
And when you say "pediatric urology," Dr. Sawchuk,
18
that would mean anybody from zero to 18?
19
A
Yes.
20
Q
And you don't see very many infants, do you, Dr.
21
22
Sawchuk?
A
I do.
I mean I -- a lot of times kids will have
23
hydronephrosis, dilated kidneys.
That's probably the most
24
common thing I see that I am asked to assess.
25
have an abnormal opening on their penis, hypospadias, that
They might
1416
1
I'm asked to see.
2
kids.
I have three others partners, we all see
3
Q
How much of your practice is with infants?
4
A
Well, if you define infant up to, say, six months,
5
of that 10 percent, I suppose maybe a third of that.
6
out seeing them as an infant.
7
8
Q
You do not do routine infant circumcisions
presently, do you?
9
A
No, I do not.
10
Q
You do not do circumcisions in your office
11
Start
setting, do you?
12
A
No, I do not.
13
Q
When you do a circumcision, it would be in the
14
surgery theater, correct?
15
A
Yes.
16
Q
And you do all your circumcisions freehand,
17
18
19
Mm-hmm.
correct?
A
Sometimes I'll use the bell, yes.
If the penis is
small I would use the bell.
20
Q
The Gomco bell?
21
A
Yeah.
22
Q
You would do them under general anesthesia,
23
correct?
24
A
Yes.
25
Q
You don't have experience doing circumcisions with
1417
1
local anesthesia, lidocaine, do you?
2
A
Yes, I do.
As when I was a resident, the
3
residents typically did the circumcisions up to a month or
4
two.
5
anesthetic.
6
turned out to be -- that's how it happened.
We would use a Gomco bell, we would use a local
That's just the way the University of Virginia
7
Q
That was 10 years ago that you did that?
8
A
Yes.
9
Q
And after you did those circumcisions, you would
10
11
not follow those patients, would you?
A
They would -- they would typically come back --
12
they might come back for visits.
13
question or problem, they would come back, yeah.
14
be another resident that would see them.
15
16
Q
Certainly, if there was a
It might
Those questions or problems could be adhesions,
correct?
17
A
Yes.
18
Q
Could be skin bridges, correct?
19
A
Yes.
20
Q
Could be asymmetry, correct?
21
A
I don't recall a lot of patients coming in asking
22
about redundant skin, if that's what you're referring to as
23
asymmetry.
24
Q
We'll get to that in a moment.
When you saw
25
Dr. -- or when you saw Josiah Flatt, was it August 1st or
1418
1
August 2nd?
2
A
Well --
3
Q
Can you tell?
4
A
By the note, I would assume it would be August
Q
Because your nurse would probably be more accurate
5
6
7
8
9
10
11
12
Clear this up for us.
1st.
than you, correct?
A
No.
That would have to be the date -- the
standard stamping date, what they do in the morning, they
stamp it.
Q
That's why I would say it would be August 1st.
And on that nurse's sheet that's page 23, is C.C.
Cox your nurse?
Would she be your nurse?
13
A
Yeah.
14
Q
Can you tell from this what time of day it was?
15
A
I don't think I can, no.
16
Q
All right.
17
Cathy Cox, yes.
Now, in your evaluation, in your note,
you knew this was going back to Dr. Montgomery, correct?
18
A
Yes.
19
Q
And he asked you to send him a copy, correct?
20
A
I don't -- yeah, I -- if I -- if there's a consult
21
I sent him a copy.
that comes to me, I send the doctor a copy back, yes.
22
23
24
25
Q
But this wasn't a doctor -- a consult from a
doctor, this was a consult from a risk manager, correct?
A
Well, it's -- my notes states Dr. Montgomery.
I
mean he was the one who asked me to see the child, so I sent
1419
1
him a note.
2
Q
3
But you know that Dr. Montgomery wears two hats at
the clinic, correct?
4
A
Yes.
5
Q
He's a medical director, correct?
6
A
Mm-hmm.
7
Q
And when he's acting as a medical director, he's
8
not acting in a doctor/patient relationship, is he, Dr.
9
Sawchuk?
10
A
That I don't know.
I mean I -- when I see Dr.
11
Montgomery, he's -- he's -- if he talks to me about a
12
patient, I will talk to him as if he's talking about a
13
mutual patient.
14
patient.
15
Q
That's how I view him if he asks me about a
Dr. Montgomery testified and he indicated when he
16
was dealing with this issue, he was dealing as a -- on the
17
management side, medical director side, not in the medical
18
side.
19
A
I will leave that up to him.
20
21
Q
And you made a note that the patient was there at
the request of Dr. Montgomery?
22
A
Yes.
23
Q
And you then mention that the parents are
24
concerned about circumcision, and the child referred to you
25
for evaluation.
Didn't Anita Flatt tell you that she had a
1420
1
concern about both function and appearance?
2
A
Well --
3
Q
Did she?
4
A
I don't -- I don't see that recorded in my note.
5
6
My understanding was it was the appearance.
Q
Okay.
And on your physical examination, Dr.
7
Sawchuk -- and, mind you, you're doing this now, knowing
8
that this is for risk management side, correct?
9
10
A
I'm seeing him as patient.
the patient as a patient.
I mean if I -- I see
That's what I am asked to do.
11
Q
Well, did you bill him for it?
12
A
I would have submitted a bill.
I don't know what
13
happens with it when I send a bill.
I don't do the billing.
14
But I would have put a code down for a billing.
15
Q
Are you aware that this was a courtesy visit?
16
A
I don't know.
17
Q
On your physical examination, you found that both
18
testes were descended, and then, looking at the foreskin,
19
there were adhesions.
20
A
Yes.
21
Q
And you saw adhesions there, did you not?
22
A
Yes.
23
Q
And adhesions are a growth of tissues together,
24
correct?
25
A
Yes.
1421
1
Q
And Dr. Kantak testified this morning that the
2
cause would be where you have two raw surfaces, where they
3
grow back together.
4
A
Would that be your understanding?
There are -- there are two opinions on that,
5
whether the adhesions are still present from birth or
6
whether that's the raw surface is sticking back together,
7
yes.
8
9
10
11
12
13
14
Q
Well, could you tell whether they were present
from birth or whether they were sticking -A
I cannot tell when I see an adhesion, no.
But
that's the feeling about it in the urologic community.
Q
You would defer to Dr. Kantak when she described
it as being the growth back together, correct?
A
I did not see the child when he was born.
15
Q
Right.
If a doctor doing a circumcision completes
16
a circumcision, wouldn't they be able to note whether or not
17
there were adhesions on that baby right after the
18
circumcision, Dr. Sawchuk?
19
20
21
A
When you complete a circumcision, you lyse the
adhesions, yes, and you remove the foreskin.
Q
And assuming that was done, Dr. Sawchuk, by Dr.
22
Kantak on March 7, 1997, wouldn't you conclude that these
23
adhesions were caused by that skin growing back together?
24
Yes or no.
25
A
That's a reasonable assumption, yes.
1422
1
Q
So there shouldn't be any confusion about whether
2
this adhesion was in fact the skin growing back together,
3
correct?
4
A
Correct.
5
Q
And the reason the skin grew back together is
6
because you had two raw surfaces, correct?
7
A
Yes.
8
Q
And the two raw surfaces were created by the
9
circumcision procedure, correct?
10
A
Yes.
11
Q
And if a circumcision procedure is done properly,
12
there should not be that redundancy, should there?
13
A
The redundancy?
14
Q
You didn't find any redundancy?
15
A
So can you -- you were talking about adhesions a
16
17
18
19
minute ago, now we're talking about redundancy?
Q
If the circumcision is done properly, you would
not have adhesions, would you?
A
No, you can -- adhesions are very common after
20
circumcision.
21
circumcision.
22
What do you mean by that?
Q
Yeah.
Adhesions are very common after a
And then you say that the adhesions were more on
23
the left side of the corona than on the right, resulting in
24
some asymmetry of the skin around the distal shaft --
25
A
Yes.
1423
1
Q
-- correct?
2
A
Mm-hmm.
3
Q
And so the left side there was more adhesions than
4
5
on the right, correct?
A
There was more skin pulled up with the adhesion.
6
I mean I can't tell from the note whether there was actually
7
more skin that was adherent, but there was more skin that
8
was certainly pulled up.
9
Q
Sure.
You can't tell by the note what it looked
10
like before you lysed it, can you?
11
A
No, I cannot.
12
Q
The only thing you can tell is what the video
13
showed perhaps a day after the event, correct?
14
15
A
The video helps me reconstruct what my note is
trying to describe, yes.
16
Q
And when you say more at the left side at the
17
corona, is that the coronal ridge right above the coronal
18
sulcus?
19
A
Yes.
20
Q
Do you see that cartoon drawing of a penis before
22
A
Yes.
23
Q
The corona would be as identified right here,
21
24
25
you?
correct?
A
This ridge, yes.
1424
1
2
Q
And so the adhesion would have been on the left,
up on this ridge right around here?
3
A
Yes, but it was more the base.
4
Q
Base and on the left, correct?
5
A
Yep.
6
Q
I can't reverse that, so I'm sorry, that's the
7
right-side photo that we have.
8
resulting in some asymmetry of the skin around the distal
9
shaft.
10
A
Mm-hmm.
11
Q
Asymmetry means that there is a difference between
12
13
And then it says there was
the left side and right, correct?
A
The appearance -- yeah, the distribution of the
14
skin, there would be -- appear there would be more on that
15
side than the other side, yes.
16
17
Q
And asymmetry, doesn't it mean that it's not
symmetric, correct?
18
A
Yes.
19
Q
And asymmetry is a result of a circumcision,
20
21
correct?
A
The adhesions, in my opinion, are what caused the
22
asymmetry, to have that -- or what caused it to have that
23
appearance.
24
Q
25
Okay.
But then the next sentence you say that
there was also a minor amount of redundant skin actually on
1425
1
the shaft --
2
A
Mm-hmm.
3
Q
-- correct?
4
A
Yes.
5
6
7
Q
And that redundant skin, the way you use that term
at that point, is skin that shouldn't be there, correct?
A
I would not call redundant skin skin that
8
shouldn't than there.
9
that child normally had before he had a circumcision.
10
11
Q
Sure.
A
Yes.
13
Q
Okay.
15
16
But there's more on one side than on the
other side, correct?
12
14
I mean that's the skin -- the skin
Okay.
And your use of the word "redundant"
implies that more should have been cut off, correct?
A
I don't think that's a fair assessment of that
term, no.
17
Q
What did you mean by redundant?
18
A
As I tried to say earlier, when -- especially when
19
the penis is very small and the skin -- the skin is always
20
very loose on any man's penis.
21
it will bunch up, depending on how -- you know, either
22
excited or how nonrelaxed he is.
23
back and forth.
24
is a problem I don't think is correct.
25
Q
It's very loose, you can see
And the skin will slide
And so to, you know, imply that redundant
Why did you use the term in your diagnosis, Dr.
1426
1
Sawchuk?
You used redundant skin?
2
3
A
That's a description, yes, of what I saw.
That's
my description.
4
Q
Redundant means?
5
A
There's tissue -- yes, there's loose tissue there.
6
Q
And your note indicates that after gently
7
examining the patient, you could see that the adhesions were
8
not real tenuous.
9
haven't grown very solidly?
What you're meaning by that is that they
10
A
They're not dense, yes.
11
Q
And if they were to become more dense, that would
12
13
14
15
create a problem, wouldn't it, Dr. Sawchuk?
A
If the adhesions grow more dense, my feeling is
they become -- they can become a skin bridge.
Q
Right.
And then after evaluating Josiah, you
16
talked to Anita Flatt, correct?
17
suggest?
That's what your notes
18
A
Yes.
19
Q
And you gave her basically two options, correct?
20
Mm-hmm.
Lysis in the clinic, correct?
21
A
Yes.
22
Q
Or do an anesthetic later on down the road, once
23
he gets older, right?
24
A
Yes.
25
Q
Those are the two options; either do it in the
1427
1
clinic now or wait until he gets older and we'll do an
2
anesthetically controlled lyses, correct?
3
A
4
their own.
5
Q
Your note doesn't say that, does it?
6
A
No, it doesn't, but I don't -- that is how I
7
8
9
10
Assuming that the adhesions don't pull down on
practice so -Q
But the recommendation at least that you gave to
the mom on August 1, 1997, was two options; do it in the
clinic now, or do it later under anesthesia, correct?
11
A
If it's needed, yes.
12
Q
Now, the option was elected to do it in the clinic
13
If it's needed.
presently, correct?
14
A
Yes.
15
Q
And you indicate that you then lysed the
16
Mm-hmm.
adhesions, which was tearing away, wasn't it?
17
A
You pull the tissue.
I don't -- it pulls away.
18
Q
And there was screaming, right?
19
A
The child cried.
20
he screamed.
21
Q
I don't -- I didn't record that
Well, you recorded more than what the nursery does
22
when circumcisions take place.
23
normally record what babies' reactions are, Dr. Sawchuk?
24
25
A
I may.
Do you normally -- do you
I don't -- I don't recall how often I
put -- I mean I typically don't recall how long they cry,
1428
1
2
3
you know.
Q
You did this because you knew it was Dr.
Montgomery who asked to you review this patient, correct?
4
A
Yes.
5
Q
And he wanted a complete and detailed report,
6
7
correct?
A
I -- he didn't ask me to give a complete and
8
detailed report, but I just felt, there were concerns by the
9
mother, I put a lot of detail into the note.
10
Q
Right.
Then after -- I'm just trying to
11
understand this, Dr. Sawchuk.
You're sitting in there, you
12
do the lysis, and then you look up at the clock, and you
13
measure the time as exactly 45 seconds that that baby
14
quieted down?
15
A
It's an estimate.
16
Q
So it could be two minutes?
17
A
It's an estimate.
18
Q
After doing that procedure, it's my understanding
19
I said about 45 seconds.
that you prescribed Neosporin for dressing, correct?
20
A
Yes.
21
Q
Neosporin is an antibiotic -- antibacterial or
22
antibiotic?
23
A
Yes.
24
Q
Comes in a cream form?
25
A
Yes.
Antibacterial, yeah.
An ointment.
1429
1
Q
And that was to be applied for two weeks, correct?
2
A
Yeah.
Q
Because you thought that if it was left untreated,
3
4
5
6
Well, I said the next week or two.
I mean
I --
it could create a new adhesion, correct?
A
Well, that's my feeling, is that I always -- my --
7
whenever I do a circumcision, whenever I do this, I have
8
them put some Neosporin ointment on it.
9
to do that.
That's my procedure
Now, as far as a lot of science, as far as
10
whether that keeps adhesions from reforming, I don't have
11
any science for that.
12
Q
That's how I practice.
Then you went on to examine the penis with the
13
mother, explaining that with erections -- and, lo and
14
behold, he had an erection just as you were explaining it,
15
correct?
16
A
That's what I record, yes.
17
Q
You don't remember that, do you?
18
A
I do not remember that erection, no.
19
Q
Then you say that most of the redundant skin on
20
the shaft becomes stretched out and is not noticeable.
21
A
That's what I said, yes.
22
Q
You don't record that that's what you observed,
23
24
25
though, is it?
A
Well, that's what I say here, that it's stretched
out and it was not noticeable.
That's what I said.
1430
1
Q
"I then carefully examined the penis with the
2
mother, explaining to her that with erections, and the
3
patient did have one in the clinic, that most of the
4
redundant skin on the shaft becomes stretched out and is not
5
noticeable."
6
that it was not noticeable with an erection, does it?
That sentence does not say that you observed
7
A
No.
8
Q
Right.
9
10
11
I mean, but -What you were explaining to her was that
you expected that with erections that -- and age, that it
may become less noticeable, correct?
A
I cannot tell from the note whether I'm recording
12
the observation of what I saw on the penis or whether I'm
13
recording what I felt in the future.
14
Q
Right.
15
A
The way it's stated there, no.
16
Q
Okay.
Then you also talk about minor
17
abnormalities basically resolving themselves through
18
puberty; is that correct?
19
A
Yes.
20
Q
And then closer to the end of this discussion, you
21
say that some of this is scar tissue.
I'm sorry, I'll go
22
and -- "I also explained that often once the penis grows,
23
especially after puberty, minor abnormalities of the skin
24
are not that noticeable as the skin on the penis does
25
stretch out when the penis does grow.
I also explained that
1431
1
there will be some pigmentation changes beneath the corona
2
which is very common in circumcised patients indicating that
3
they have been circumcised.
4
some of this is just the color of the tissue on the shaft
5
skin and on the foreskin."
6
7
8
9
Some of this is scar tissue and
The pigmentation changes that you're referring to
are indeed a scar on the penis, are they not?
A
Not always.
And I see patients, I see lots of
adults, you know, I can see where the circumcision has been
10
done.
11
adherent tissue.
12
where you can see the line where there's -- you can tell
13
there's been a circumcision and there's been not.
14
seems to be some pigment changes there.
15
was explaining.
16
17
Q
Scarring is -- scarring would be very dense, fibrous,
But I've noticed the difference in adults
And there
And that's what I
Are you saying, Dr. Sawchuk, that there is no scar
when you do a circumcision?
18
A
There's always a ridge of scar tissue when you do
19
a circumcision, yeah.
20
a cut, you get a scar.
That's how the body heals.
You make
21
Q
Sure.
That's permanent, isn't it?
22
A
Yes.
23
Q
Then you go on to explain, "The mother wanted to
24
know if there were any options if the patient should be
25
concerned about this when he is in puberty.
Apparently, she
1432
1
is concerned that he may feel ashamed in the locker room, et
2
cetera, when he is an adolescent.
3
there would be the option of trying to remove this small
4
portion of skin if the patient so desired when is older."
5
You recall writing that in your note?
I explained to her that
6
A
Yes, it's right there.
7
Q
That's what you recommended? is to wait and see
8
and if it is a problem when he reaches puberty, that you
9
could then look at it for revision circumcision, correct?
10
A
If he had -- and I would -- there's -- there's no
11
way that you would call this a revision of a circumcision.
12
My point there was that if he saw -- if he was concerned by
13
it, and there was -- you know, this was something that he
14
was concerned by, we could -- you could also re-evaluate if
15
the -- if he -- if something needed to be excised, you
16
could.
17
I have never had to do that.
And I see lots of
18
adults, I see lots of guys that have been circumcised.
19
Penises comes in all shapes, forms and sizes.
20
seen -- I have not had anybody ever come in and request
21
that.
22
Q
I have not
The last sentence on the first page, Dr. Sawchuk,
23
you say that "I also explained that at any time you make
24
another incision there is scar tissue and there could be
25
curvature formation" with the scar tissue, correct?
1433
1
A
Yes.
2
Q
That's another reason you wouldn't want to do a
3
small cosmetic procedure, because of the risks attendant
4
with it, correct?
5
A
It is hard to --
6
Q
Correct?
7
A
You could see scar tissue, yes.
8
Q
And so in order for you to make a judgment to
9
recommend surgery, you would have to say, if we're going to
10
correct that blemish, we need to have you assume the risk of
11
scar tissue and potential curvature of the penis, correct?
12
A
I don't -- if there -- depending on how much
13
you're trying to excise, you know, if there was -- if there
14
was something -- a tiny bit of tissue that you're removing,
15
you would see -- you could potentially see a scar.
16
had to remove an awful lot and you had a bad scar, then I
17
guess you could see some curvature.
18
that much tissue there.
19
kind of revision or anything done as he got older.
But again there wasn't
I did not think he would need any
20
Q
Why did you mention it?
21
A
I'm trying to be as complete as possible,
22
23
24
25
If you
answering all the questions.
Q
And not only answering them, but dictating them to
Dr. Montgomery so there's a paper trail, correct?
A
I recorded everything that I -- as best I could in
1434
1
2
3
the note.
Q
That's how we do it.
Then your assessment.
We try to be complete.
The first page was
basically your evaluation and your observations, correct?
4
A
Yes.
5
Q
Then you come down to the assessment, Dr. Sawchuk,
6
and your assessment on the next page is that this is a
7
patient with glans adhesions, correct?
8
A
Yes.
9
Q
And the glans adhesions again were the foreskin
10
and skin that were adhered to the glans penis?
11
A
Well, I was -- it would -- to me it would be shaft
12
skin, because after those adhesions were lysed, there was no
13
skin that was coming over the glans.
14
definition of foreskin.
And that's my
15
Q
And you say that the glans adhesions were lysed in
16
the clinic?
17
A
Yes.
18
Q
He has a small amount of redundant skin on the
19
shaft?
20
A
Yes.
21
Q
That was your assessment at that time?
22
A
Yes.
23
Q
And then you say, "I would not call this actually
24
a phimosis or redundant foreskin as none of this encroaches
25
over the glans"; correct?
1435
1
A
Correct.
2
Q
You can't have phimosis on a circumcised infant,
3
4
5
6
7
can you?
A
Phimosis would -- if there was a lot of skin left
over that's covering it back, yes, you could see it.
Q
Isn't phimosis the inability to retract the
foreskin, Dr. Sawchuk?
8
9
10
A
Yes.
If you get a ridge of scar tissue and you
can't pull it back, that's phimosis.
Q
But I thought you said this kid didn't have any
11
foreskin, it was shaft skin that was adhered to the glans
12
penis?
13
A
Right.
I'm just describing -- I'm -- I'm just
14
making an observation.
15
did not think there was any skin that was encroaching over
16
the glans.
17
words.
18
Q
You're the doctor, you used the word?
19
A
Yes, I did.
20
Q
And isn't phimosis the inability to retract the
21
I did not -- I saw -- you know, I
Perhaps phimosis was, you know, a poor choice of
foreskin past the corona?
22
A
Right.
23
Q
And redundant foreskin -- I thought you just said
24
that you thought the glans adhesions were shaft skin, not
25
foreskin, correct?
1436
1
A
Right.
2
Q
So this is also inaccurate?
3
A
Well, what I'm saying is, there again, I'm not
4
calling it redundant foreskin because none of it came over
5
the glans, it's on the shaft.
6
7
8
9
10
11
12
13
Q
Sawchuk?
A
Then why would you put it into the note, Dr.
Why would you -That's what I said.
not see that it was the over the glans, so I didn't -- I'm
not calling it foreskin, I didn't see it over the glans.
Q
Well, did you put in there that he was wearing a
red hat that day?
A
No, I did not.
14
MS. VOGLEWEDE:
15
MR. BAER:
16
THE COURT:
17
I said -- I put down I did
Q
Objection, argumentative.
I'll withdraw the question, Your Honor.
Sustained.
Then your recommendation,
18
Dr. Sawchuk, was that nothing be done at this point until
19
the patient has grown and then see what he may look like,
20
correct?
21
A
Correct.
22
Q
And that's what you told to Anita Flatt, correct?
23
A
Yes.
24
Q
And you offer to see the patient in several years
25
Yes.
once he has grown some to reassess this, but I told her I
1437
1
likely -- or likely I would still recommend waiting until he
2
is older and has gone through puberty, correct?
3
A
Correct.
4
Q
So you can't say now as you sit here today that
5
6
nothing more will be needed, can you, Dr. Sawchuk?
A
I saw pictures recently, and I thought -- I
7
didn't -- from what I saw of those pictures, not having
8
examined him, but when I saw those pictures, I would say
9
nothing would need to be done.
And I would not do anything.
10
Q
Were those pictures identified?
11
A
They were shown to me as his penis, yes.
12
Q
Okay.
You certainly would not make a diagnosis,
13
Dr. Sawchuk, by seeing photographs, would you?
14
want to evaluate, wouldn't you?
15
16
17
18
A
You would
If I'm going to act on anything that I'm looking
at, I would want to evaluate them, yes.
Q
So whatever opinion you gave today is tempered by
no evaluation of the actual penis, correct?
19
A
I am looking at photos, yes.
20
Q
Now, when were you asked to give an opinion about
21
22
23
24
25
whether or not the circumcision was done okay?
MS. VOGLEWEDE:
Objection, involves
attorney-client privileged information.
MR. BAER:
Your Honor, this witness came today
giving an opinion that had not been previously disclosed.
I
1438
1
think it's relevant to find out when that opinion was asked
2
to be -- to be evaluated.
3
conversations, it just asks when.
4
MS. VOGLEWEDE:
It does not ask for any
Your Honor, this witness's opinion
5
does not go to standard of care issues.
He was asked to
6
observe a circumcision at the request of Dr. Montgomery.
7
did so.
8
whether a revision was needed.
9
his one-time evaluation of this patient.
He
Part of his evaluation of this child was to assess
10
MR. BAER:
That's within the scope of
Your Honor, it goes to the damage
11
issue.
He's obviously given that opinion based on damages
12
and trying to defeat the damage issue.
13
relevant as to when he was asked to give this opinion about
14
whether or not the circumcision was adequately performed.
15
MS. VOGLEWEDE:
16
THE COURT:
17
sustained.
18
Q
I think it's highly
It's privileged.
It is privileged.
The objection is
Well, your note doesn't
19
reflect an opinion about the circumcision, does it, Dr.
20
Sawchuk?
21
A
The note --
22
Q
Does the note reflect an opinion about whether or
23
not the circumcision was properly performed?
24
A
The note describes the -- what I observed.
25
Q
Does it describe your opinion about whether or not
1439
1
the circumcision was properly performed?
2
A
I do not see that in the note, no.
3
Q
And in your note, you noted asymmetry, correct?
4
A
Yes.
5
Q
You noted adhesions, correct?
6
A
Yes.
7
Q
And you noted redundancy, correct?
8
A
Yes.
9
Q
You know that the claim against Dr. Sunita Kantak
To start with, yes.
10
is a claim involving lack of information being given at the
11
time of the circumcision, correct?
12
MS. VOGLEWEDE:
13
THE COURT:
14
MR. BAER:
15
THE COURT:
16
17
18
Sustained.
Nothing further.
Redirect.
BY MS. VOGLEWEDE:
Q
Dr. Sawchuk, would part of your assessment if the
19
child was referred to you because of concerns about a
20
circumcision be to evaluate, for example, whether any
21
revision was needed?
22
A
Yes.
23
MR. BAER:
Objection, leading.
24
MS. VOGLEWEDE:
25
THE COURT:
Redirect, Your Honor.
Just a moment.
I need to make a
1440
1
ruling.
2
question.
Please answer the
3
A
Can you state the question again?
4
Q
If a child is referred
5
to you for evaluation because of concerns that were
6
expressed by the mom about a circumcision or the appearance
7
of the penis, would part of your assessment be to determine,
8
for example, whether a revision was needed?
9
A
Yes, it would.
I mean, if I -- if I felt the
10
child needed a revision or something more done, I would do
11
it.
12
know, it's Montgomery or, you know, anybody sending it to
13
me.
14
That's how I see the patient.
15
treating the patient.
I mean, I don't -- I don't care whether it's -- you
If I thought they needed something done, I would do it.
It's a -- it's a -- me
That's what I was asked to look at.
16
Q
And in this case, did you recommend any revision?
17
A
I did not recommend a revision, no.
18
Q
Did you believe one was needed?
19
A
I did not believe one was needed and I didn't
20
think one would be needed in the future.
21
revision in ten years, and that's it.
22
23
Q
I have done one
Dr. Sawchuk, Mr. Baer asked you some questions
about the cause of adhesions.
Do you recall that?
24
A
Yes.
25
Q
And I think you commented that there are two
1441
1
opinions on that within your field of specialty?
2
A
Yes.
3
Q
Would you explain that?
4
A
Whether it's still the adhesions that are there
5
from birth or whether it's actually these two sticky
6
surfaces that, you know, somehow stick together and stay
7
together.
8
Q
Is there any consensus on which is the cause?
9
A
My understanding is that there's not.
10
11
12
I mean,
there are several schools of thought on that, on adhesions.
Q
And in either case, are adhesions common after
circumcision?
13
A
Adhesions are very common after circumcision, yes.
14
Q
And, Doctor, if you would refer to your note,
15
about three-quarters of the way down the first page, in the
16
paragraph Mr. Baer asked you about concerning your
17
explanation and discussion to the mom, you stated at the end
18
of that paragraph, "She has a good understanding of this";
19
correct?
20
A
Yes.
21
Q
And did she?
22
A
I stated in the note, yes.
23
MS. VOGLEWEDE:
24
THE COURT:
That's all I have, Doctor.
Mr. Baer.
25
1442
1
RECROSS-EXAMINATION
2
BY MR. BAER:
3
Q
4
You said you've done one revision all the time
you've been a urologist, correct?
5
A
Yes.
6
Q
Would you expect, Dr. Sawchuk, that the likelihood
7
of somebody coming back to have their penis worked on
8
decreases with age?
9
10
11
A
The revision I did was the parents brought the
child in, yes.
Q
But would you expect that a child getting to the
12
age of puberty may not want to come back and have his penis
13
reworked?
14
15
A
If he has a problem and there's -- he's worried
about it or concerned, he would come in.
16
Q
Sure.
17
A
Guys come in all the time.
18
how they appear.
Have questions about
19
MR. BAER:
Nothing further.
20
MS. VOGLEWEDE:
21
THE COURT:
22
THE WITNESS:
23
MS. LORD:
Nothing further.
You may step down.
Thank you.
Defense calls Amy Thilmony.
24
25
1443
1
AMY THILMONY,
2
3
oath as follows:
4
DIRECT EXAMINATION
5
BY MS. LORD:
6
Q
7
to the jury?
8
A
I am Amy Thilmony.
9
Q
And you are an R.N. at MeritCare; is that correct?
10
A
That's right.
11
Q
Will you tell the jury about your training to be a
12
13
Ms. Thilmony, will you please introduce yourself
R.N.?
A
My schooling is what you want?
Is that -- okay.
14
After high school I went to UND for year and I decided I
15
wanted to be an LPN, so I went to LPN training for about
16
another year, started work at MeritCare and decided to go
17
back for my R.N.
So I went through St. Luke's School of
18
Nursing and completed my R.N. there.
19
Q
How long have you been at MeritCare?
20
A
For 23 years.
21
Q
Of that time how long have you been at the Family
22
Birth Center?
23
A
17 years.
24
Q
And during your time at the Family Birth Center,
25
have you held -- had the various duties of the different
1444
1
2
nurses, from charge nurse to nursery charge, scrub nurse?
A
Right.
I don't do charge nurse.
I do nursery
3
nurse, mom/baby cares and labor room nursing.
4
visits also.
5
Q
6
And I do home
Have you had an opportunity to look at the nursing
assignments for March 5 through March 8 of 1997?
7
A
Yes.
8
Q
And were you working those days?
9
A
Yes.
10
Q
Were you the nursery charge nurse that day?
11
A
Yes.
12
Q
And were you also the nursery charge nurse on
13
I was working March 7, I believe it was.
March 8 of 1997?
14
15
A
8th?
The day of the circumcision, I was.
I guess I'd have to look on here.
16
Q
17
assignments?
18
A
19
20
Was that the
Would it assist you to look at the nursing
Yeah.
nursery.
Q
So the 7th I was.
And the 8th I was.
Okay.
On the 7th I was in the
Both days.
Thanks.
Ms. Thilmony, the -- Josiah -- it's been testified
21
that Josiah Flatt's circumcision took place on March 7 of
22
1997.
23
is that correct?
You were the nursery charge nurse for the day shift;
24
A
That's right.
25
Q
And can you explain to the jury what the nursery
1445
1
2
charge nurse duties are for the day shift?
A
Okay.
First you go into report, you hear from the
3
night shift everything that happened through the night.
4
they tell you about each patient, and who needs what, you
5
know, which baby needs exams or circumcisions or discharge
6
exams.
7
the nursery you get ready for your day pretty much.
8
9
And
And after you're done with that report, you go into
Usually I go in and I set up the circumcision
trays right away.
Then I would make sure I had the
10
admission stuff ready to hand out and just be ready for the
11
pediatrician to come in.
And then once the pediatrician
12
comes into the nursery, you get the babies for her to see,
13
and she sees the babies and does what she needs to do.
14
15
Q
As the nursery charge nurse, do you get the babies
ready for circumcision?
16
A
Yes, we do.
17
Q
And since you were the nursery charge nurse on
18
March 7 of 1997, is it your opinion that you were probably
19
the nursery charge nurse involved with Josiah Flatt's
20
circumcision?
21
A
More than likely, yes.
22
Q
You don't have an independent recollection of
23
Josiah Flatt, however, do you?
24
A
No, I don't.
25
Q
Can you explain for the jury what your routine is
1446
1
2
in getting a baby ready for a circumcision procedure?
A
My routine is to get the baby.
A lot of times
3
it's still with the mother in the room, or whatever, and you
4
go get the baby, bring it in.
5
exam on it, she'll do an exam on the baby.
6
If the doctor needs to do an
Then after they're done with that, you get the
7
baby or -- to the back of the room where the circumcision
8
will be performed, and you pretty much swaddle the arms and
9
put the baby on the board, check the I.D. band to make sure
10
it's the same as the one on the consent that's taped above
11
the board and --
12
13
14
15
16
Q
Ms. Thilmony, what's the purpose of checking the
band with the consent form that's taped up?
A
To make sure you have the right baby, that you
have a consent for the circumcision.
Q
And you just described a swaddling technique.
17
there other comfort measures that are used during the
18
circumcision procedure?
19
A
Yeah.
Are
There's the pacifier we put in -- dunk it
20
in sugar.
It's supposed to help comfort the baby by
21
releasing endorphins that will help in pain control.
22
Q
In your experience, does Dr. Kantak also use
23
anesthesia?
24
A
Yes, she does.
25
Q
In your experience, does Dr. Kantak use the Gomco
1447
1
clamp?
2
MR. BAER:
Objection, leading.
3
MS. LORD:
I will withdraw the question, Your
4
Honor.
5
Q
6
Ms. Thilmony, can you
describe Dr. Kantak's manner in doing the circumcision
7
procedure?
8
A
Doing her procedure pretty much?
9
Q
Her manner in how she --
10
A
How she does it?
11
Q
-- does the circumcision procedure.
12
A
Sure.
Usually we get the little sugar thing going
13
on the pacifier, and Dr. Kantak will come over and inject
14
the lidocaine.
15
inject the lidocaine into the penis, wait a couple minutes.
16
Or not into the penis, but into the base of the penis.
17
a couple minutes.
18
First, she'll put her gloves on, she'll
Wait
Then she'll take off those nonsterile gloves, and
19
put sterile gloves on, wait a couple minutes, clean the head
20
of the penis with some Betadine.
21
mosquito forceps and make a mark in the penis as to how far
22
she's going to cut.
23
Then she'll take a little
Then she'll take a little probe and release any
24
adhesions that are there.
And then she'll make the
25
incision, and then she'll take the Gomco bell and put it
1448
1
over the head of the penis and put the clamp over that and
2
tighten the clamp down.
3
minutes, and then we can take the clamp off and put the
Make the incision, wait seven
4
Vaseline gauze over the head of the penis.
5
it.
Then we're done.
And that's about
Take the baby off the board and --
6
Q
7
conditions?
8
A
Yes, it is.
9
Q
And have you observed any bleeding with Dr.
10
Is the circumcision performed under sterile
Kantak's circumcisions?
11
A
No.
12
Q
Ms. Thilmony, as a nursery charge nurse, have you
13
had the opportunity to go on rounds with Dr. Kantak?
14
A
Yes, I have.
15
Q
Are you familiar with her procedure or routine as
16
she goes on rounds?
17
A
Yes.
18
Q
Are you familiar with Dr. Kantak's procedure or
19
routine that she used on rounds in 1997?
20
A
Yes.
21
Q
Could you describe for the jury Dr. Kantak's
22
routine when she would go on rounds after doing a newborn
23
baby examination?
24
25
MR. BAER:
Objection, foundation, as to the time
frame.
1449
1
THE COURT:
As to 1997?
2
MR. BAER:
Yes.
3
MS. LORD:
I did, Your Honor, request that she
4
describe 1997.
5
MR. BAER:
I don't think there's any basis to
6
believe that she did rounds in 1997 yet.
7
have that established yet.
8
9
10
THE COURT:
Q
Sustained.
Go ahead.
Ms. Thilmony, how often
have you worked with Dr. Kantak?
11
A
12
been years.
13
Q
14
Okay.
I don't think we
Very often.
I guess, hundreds of times.
It's
Is Dr. Kantak consistent with how she does things
when she's on call in the nursery?
15
A
Yes, she is.
16
Q
And does she have a routine that she follows when
17
she's the pediatrician that covers the nursery?
18
MR. BAER:
19
THE COURT:
Objection, leading.
Overruled.
20
A
Yes, she does.
21
Q
Did Dr. Kantak have a
22
routine that she followed in 1997, when she was the
23
pediatrician covering the nursery?
24
A
Yes.
25
Q
Are you familiar with that routine?
1450
1
A
Yes.
2
Q
Will you please describe for the jury, stepping
3
back, and describe for the jury what Dr. Kantak's routine
4
was in 1997 that you're familiar with when she covered the
5
nursery.
6
A
Okay.
She'd pretty much go into the room and ask
7
the parent if they had any questions, then answer any
8
questions if they had them; otherwise, she would tell them
9
what she had found on the babies; you know, if there was
10
anything abnormal or everything's normal.
11
Then she'd give her recommendations on -- we had
12
hepatitis vaccine back then, so that was mainly it.
13
it was a little boy, she'd ask if they'd want the
14
circumcision.
15
wanted to.
16
any more questions.
17
would go over other things and --
18
19
20
Q
Then if
Then she would go into that with them if they
And that would be about -- then ask if they had
Or if it was a discharge exam, she
Did Dr. Kantak -- what did Dr. Kantak discuss with
the parents about circumcision?
A
About circumcision, she'd say, there's lots of
21
controversy about it, and it's totally up to the parent if
22
they want to have it done or not.
23
Pediatrics doesn't recommend that you do it, but most people
24
around here still do it.
25
The American Academy of
There's a chance of infection and bleeding if you
1451
1
have it done.
2
sensation later in life.
3
they might come back and sue you later in life.
4
that's about all I can think of that she says.
5
6
Q
There's also a chance of decreased sexual
Some little boys don't like it so
And I think
Did Dr. Kantak or you distribute any materials on
rounds in 1997 regarding circumcision?
7
A
Yes, there was a book we hand out.
8
Q
Ms. Thilmony, I have what's marked Trial Exhibit
9
105.
Is this the booklet you're referring to?
10
A
Yes.
11
Q
Prior to this booklet being used at MeritCare,
12
would Dr. Kantak refer to any other booklet that discussed
13
circumcision?
14
A
Yes.
15
Q
Can you describe that booklet for the jury?
16
A
There was an infant care booklet that kind of had
17
everything about taking caring of a baby in it, and there's
18
a page -- or a little paragraph on circumcision in there.
19
20
Q
58.
Ms. Thilmony, I have what's been marked Exhibit
Is this the book you were referring to?
21
A
Mm-hmm.
22
Q
When Dr. Kantak, in your experience, is discussing
23
24
Yes.
circumcision with parents, does she take her time?
A
Yes.
25
Q
Does she answer questions?
1452
1
A
Yes.
2
Q
Have you ever known Dr. Kantak to just take a few
3
steps into the room and say, I'm going to be doing your
4
son's circumcision?
5
A
No.
6
Q
When Dr. Kantak is in the nursery -- I would like
7
to take a step back as far as when she comes into the
8
nursery in the morning.
9
her routine is when she comes into the nursery in the
10
Can you describe for the jury what
morning when she's covering the nursery?
11
A
She'll come in and just find out what exams she
12
has to do and if she has circumcisions to do or discharge
13
exams.
14
do.
And then she'll just proceed with what she needs to
15
Q
What day of a child's stay is the newborn baby
16
exam done?
17
A
Usually, the -- it depends upon when they're born
18
kind of.
19
the admission exam.
20
21
22
Q
It's within the first 24 hours they'll see -- do
Does Dr. Kantak go on rounds to discuss the
newborn baby examination with the parent of that child?
A
Yes.
23
Q
How consistent is she in that routine?
24
A
She does it all the time.
25
Q
Ms. Thilmony, you were also the nursery charge
1453
1
nurse on March 8 of 1997.
That's the day that Josiah Flatt
2
was discharged from MeritCare Hospital.
3
charge nurse, would you do rounds?
As the nursery
4
A
Yes.
5
Q
Ms. Flatt has testified that she did not get a
6
discharge letter from MeritCare Hospital.
7
to the jury when the discharge letter is given to parents?
8
9
10
Can you describe
A
On rounds on that discharge day, we hand those
Q
Was it your routine to go on rounds with the
out.
11
pediatrician in 1997 and to distribute that discharge
12
letter?
13
14
15
A
Yes.
MS. LORD:
any further questions.
16
THE COURT:
17
MR. BAER:
18
19
Thank you, Ms. Thilmony.
Mr. Baer.
CROSS-EXAMINATION
BY MR. BAER:
I don't have
20
Q
You still work with Dr. Kantak?
21
A
Yes.
22
Q
When did you last work with her?
23
A
Oh, that's hard to say.
24
Q
When did you last work with her?
25
A
I don't know.
Maybe -- I can't even give you a
1454
1
guess.
2
Q
3
4
5
It's been within the year.
How often have you worked with her in the past
year?
A
In the past twelve months kind of thing, is that
what you're saying?
6
Q
Is that a year?
7
A
Yeah.
8
Q
Okay.
9
A
Okay.
10
In the last twelve months.
I worked with
her quite a bit.
11
Q
What's quite a bit, Ms. Thilmony?
12
A
You want days?
13
Q
You said you worked with her very often.
14
quite a bit.
15
A
Uh-huh.
16
Q
Could you put some numbers on that for the jury,
17
Now it's
please, so they can get a sense of what standpoint you're
18
coming --
19
A
Okay.
20
Q
How often have you worked with Dr. Kantak in the
21
last 12 months?
22
A
Probably two weeks.
Let's see.
23
think here.
24
weeks she's in the nursery, and that's when we work with
25
her.
Not quite a week a month.
I'm trying to
A week every six
Depends upon their rotation.
1455
1
Q
She testified that she comes in a lot less
2
frequently now than she did back in 2002 and 2001.
3
aware of that?
Are you
4
A
Yes.
5
Q
She testified that back in 1997, she only worked
6
four or five weeks in the nursery in 1997.
Are you saying
7
that you worked with her the last year six times?
8
A
Six times in the last twelve months?
9
Q
Six weeks?
10
A
She's maybe in there.
11
like that.
12
Q
13
14
That's probably something
And do you always work the same shift she works,
Ms. Thilmony?
A
You said every six weeks.
No.
15
16
Q
So you have no idea how often it is that you and
her schedule -- that yours and her schedule might coincide?
17
A
That's right.
18
Q
So you have no way of describing to the members of
19
the jury how often you worked with Dr. Kantak the last year,
20
correct?
21
A
Correct.
22
Q
How about the year before, you have no way of
23
describing that, correct?
24
A
Unless we had some schedules we could compare.
25
Q
And you work with all of them -- MeritCare
1456
1
pediatricians, correct, Ms. Thilmony?
2
A
The pediatricians that come through the nursery, I
4
Q
What are there? about 15 of them?
5
A
I can't even tell you that.
6
Q
Right.
7
A
Too many?
8
Q
Well, you can't remember them, right?
9
A
Well, what's too many?
10
Q
Well, for your mind --
11
A
I can't -- I can't say there's 15 of them.
3
12
do.
Because there's too many, correct?
I
could give you -- I could start trying to list them off if
13
14
you'd like me to or -Q
Ms. Thilmony, when you're on duty as the nursery
15
room nurse, you do rounds with whatever pediatrician comes
16
through that nursery that day, correct?
17
A
That's right.
18
Q
So you hear stories and these talks about
19
circumcisions from not only Dr. Kantak but all of the other
20
pediatricians, correct?
21
A
That's right.
22
Q
And you're remembering now what Dr. Kantak said in
23
March 6 of 1997, is that your testimony?
24
A
That's right.
25
Q
And you do that, Ms. Thilmony, because her talk
1457
1
never changes, correct?
2
A
That's right.
3
Q
It's always been the same, correct?
4
A
Yes.
5
Q
All of the other doctors, they change all the
6
time, but, by God, Sunita Kantak is the same all the time,
7
correct?
8
A
No, they don't all change all the time.
9
Q
So --
10
A
They all have a different talk.
11
have a whole different talk.
12
but she's the most in-depth.
They get the specifics out,
13
Q
The most in-depth?
14
A
Yes.
15
Q
Who's the least in-depth?
16
17
MS. LORD:
They don't all
Lack of
relevance, foundation.
18
MR. BAER:
Your Honor, this witness is coming here
19
saying that she knows who is the most in-depth and the most
20
competent in giving this speech.
21
ability to remember, her ability to relate, to be able to
22
describe who is the least --
23
24
25
THE COURT:
It certainly goes to her
Objection is sustained.
Let's move
on.
Q
Now, you were describing
1458
1
what Dr. Kantak's routine was in doing circumcisions.
2
recall that?
3
A
Yes.
4
Q
I didn't hear you describe the Circumstraint.
5
You
Could you tell the jury what a Circumstraint is.
6
A
7
about?
The restraint we use, is that what you're talking
8
Q
Yes.
9
A
The Velcro strap on the legs?
10
Q
Right.
11
A
Right.
12
Q
And swaddle their arms so they can't move,
13
What is it?
You strap the legs down?
correct?
14
A
Right.
15
Q
Then you indicated on her procedure how she
16
proceeds, she injects the lidocaine?
17
A
Yes.
18
Q
Do babies ever cry when the lidocaine is injected?
19
A
Sometimes.
20
Q
And then after the lidocaine, she -- your words
21
were, she takes the mosquito forceps and marks on the ridge?
22
A
I don't believe I said ridge.
23
Q
Well, where did you say?
24
25
Marks where she's going
to take it off?
A
Marks how far she's going to cut I think is what I
1459
1
2
3
4
said.
Q
She does that by sticking the forceps into the
foreskin, correct?
A
Right.
5
6
Q
Even before she, in your term, releases adhesions,
correct?
7
A
I believe so.
8
Q
And isn't releasing adhesions the tearing away of
9
10
11
that connective tissue from the glans penis to the foreskin?
A
It's releasing the adhesions.
I don't know that
it's a tearing motion but --
12
Q
Well, how are they attached?
13
A
They're adhesed.
14
Q
With like skin tissue?
15
A
Right.
16
Q
Then you said she makes an incision.
17
She cuts
with a scissors, doesn't she?
18
A
Mm-hmm.
Yes.
19
Q
First she has it crushed, correct?
20
A
She makes the mark.
21
Q
That's a crush, right?
22
A
I don't know the terminology, and I'm sure you've
The dorsal crush?
23
gotten that from someone else, but she makes a mark.
24
is just what I see.
25
Q
This
And then she tightens the clamp -- she puts the
1460
1
bell on and tightens the clamp.
2
foreskin with that clamp?
Doesn't she crush that
3
A
More than likely that's what's happening there.
4
Q
That's the way she gets hemostasis, correct?
5
A
Correct.
6
Q
Now, you've seen the reaction of babies, haven't
8
A
Yep.
9
Q
Would you have been on duty the day Josiah Flatt
7
10
you?
was circumcised?
11
A
That's what the records show.
12
Q
You have no recollection of it?
13
A
No.
14
Q
Do you have a recollection of ever talking to
15
James Flatt?
16
A
No.
17
Q
How about Anita Flatt?
18
A
No.
19
Q
Do you have recollection of anybody else who was
20
in the nursery that -- over those couple days?
21
A
No.
22
Q
And the reaction of the babies, you hear them cry
23
in pain, correct?
24
A
When?
25
Q
When the circumcision procedure is being
1461
1
performed.
2
A
No.
3
Q
You never hear them cry?
4
A
Sometimes they do, but not always.
5
Q
Okay.
6
And you can't tell whether Josiah was one
of those who did cry or didn't cry, correct?
7
A
That's right.
8
Q
Okay.
9
10
11
And your testimony is that it's hard to
tell whether it's a cry of pain or whether it's a cry of
hunger, correct?
A
Or --
12
MS. LORD:
13
THE COURT:
14
15
Q
Sustained.
You hear them cry when the
circumcision takes place sometimes?
16
A
Sometimes.
17
Q
And can you conclude from that that it's a cry of
18
pain?
19
A
Not always.
20
Q
And that's because you think it's kind of hard to
21
tell whether it's a cry of pain or whether it's for a burp
22
or whether they're hungry, correct?
23
A
That's right.
24
Q
And you have seen babies when they're undergoing
25
that procedure grimace, correct?
1462
1
A
Sometimes.
2
Q
And that is a reaction to pain, correct?
3
A
Yep.
4
Q
Have you ever seen them throw up?
5
A
No, I haven't.
6
Q
The kit comes with a bulb syringe, though, doesn't
A
Yes.
7
8
9
it?
Not the kit.
The baby comes with the bulb
syringe.
10
Q
So you have this traveling bulge syringe?
11
A
Yes, we do.
12
Q
And doesn't it even say in the circumcision
13
procedure that the nurse stays by all the time in case of
14
throw up?
15
A
I would have to see that on the --
16
Q
Item No. 6, remain by infant during procedure as
17
they often regurgitate and may aspirate.
18
A
Okay.
19
Q
Do you see that?
20
A
Yep.
21
Q
And the policy says they may often regurgitate and
22
aspirate, and you're telling the jury that you have never
23
seen that, correct?
24
A
Correct.
25
Q
Well, how often are you in the nursery then?
1463
1
A
I was in there more back then than I am now so --
2
Q
Well, how often were you in there?
3
A
I would probably say a week a month.
4
Q
And how often would you work with Dr. Kantak?
5
When your week would match up with her week --
6
A
With hers.
7
Q
-- correct?
8
A
Yeah.
9
Q
You have no way of knowing how often that would be
10
though, do you, Ms. Thilmony?
11
A
No, I don't.
12
Q
And isn't it true, Ms. Thilmony, that you have
13
experience of observing babies' reactions both with and
14
without anesthesia, correct?
15
A
That's true.
16
Q
And you would agree, would you not --
17
MS. LORD:
Your Honor, we object to this line of
18
questioning for lack of relevance.
19
Josiah Flatt had lidocaine in this case.
20
MR. BAER:
There's no dispute that
Your Honor, it goes to the issue of the
21
observations of pain in a child.
This witness, according to
22
her deposition, stated that it's hard to tell the reaction
23
of the baby whether they've had lidocaine or if they haven't
24
had lidocaine.
25
It's highly relevant to the issue of pain.
THE COURT:
Objection's overruled.
Go ahead.
1464
1
Q
The question was, Ms.
2
Thilmony, you've had the experience of observing babies
3
being circumcised with anesthesia and without anesthesia,
4
correct?
5
A
That's right.
6
Q
And you could not really tell the difference
7
sometimes because of the individual nature of the babies,
8
correct?
9
A
Between lidocaine and no lidocaine?
10
Q
Yes.
11
A
Is that what you're saying?
12
Q
Yes.
13
A
I believe with the lidocaine, they feel a lot
14
less.
15
Q
Right.
16
A
Not always.
17
Q
How do you know that?
18
A
Because some babies sleep through their
19
20
But they still feel pain, correct?
circumcisions.
Q
You have seen, have you not, babies just tense up
21
22
23
24
25
during circumcisions?
A
I don't know that I'd say during the circumcision.
Maybe when I am putting them on the board.
Q
That can vary.
I would ask you to look at page 24, Ms. Thilmony.
Do you recall when I took your deposition on February 6,
1465
1
2001?
2
A
Yes.
3
Q
Were you under oath at that time?
4
A
Yes, I was.
5
Q
And did I ask you, line 19 through 21, "Question:
6
Have you ever seen a baby just tense up when the
7
circumcision procedure is going on?"
"Answer:
Sometimes."
8
A
Yes.
9
Q
10
A
Yes, you did.
11
Q
And so you do sometimes see that, correct?
12
A
Yes.
13
Q
The jury will have to understand that.
14
A
Oh, okay.
15
Q
Now, part of your duty, Ms. Thilmony, as a nurse,
16
I answered it as not always, right?
is to obtain a signed consent to circumcision, correct?
17
A
That's right.
18
Q
And there's no way to tell when the circumcision
19
20
21
22
was done from the records, is there?
A
You can tell pretty much what time it was done by
when the circumcision checks were started.
Q
Look at page 40 of your deposition.
Did I ask you
23
at that time, Ms. Thilmony, whether or not there was any way
24
to tell when the circumcision was begun -- or was done?
25
A
It looks like on line 23.
1466
1
Q
Yes.
2
A
Yes, you asked me that.
3
Q
And I asked you, yes -- or start at line 20.
4
"Question:
5
circumcision would have been performed?"
6
we've got the date, 3/7."
7
that, there's no way to tell when it was performed?"
8
"Answer:
9
10
11
Is there any way to identify when the
"Question:
Yes, but other than
A
Yes, you did.
THE COURT:
We need to take a recess, so I'm going
to do that at this point.
13
until five minutes past 4:00.
15
Well,
That's right."
12
14
"Answer:
Jurors, we're going to recess
Jurors, you're excused.
may step down.
Court is in recess.
You
16
17
18
19
THE COURT:
20
MR. BAER:
21
Q
Mr. Baer, you may continue.
Thank you.
Ms. Thilmony, you described
22
for the members of the jury what your recollection was of
23
Dr. Kantak's routine in talking with parents just before the
24
break.
25
A
Do you recall that?
Yes.
1467
1
2
Q
And do you recall when I asked you that question
in the deposition, Ms. Thilmony?
3
A
About the -- what Dr. Kantak tells the parents?
4
Q
Yes.
5
A
Yes.
6
Q
And today you testified that you -- that Dr.
7
Kantak talks about the controversy, that it's up to the
8
parents, that it's not recommended, infection, bleeding,
9
decreased sexual sensations, and that the boys may sue their
10
parents later on in the life, correct?
11
A
That's right.
12
Q
You didn't mention decreased sexual sensation in
13
your deposition, did you?
14
A
I'd have to read it again.
15
Q
Go ahead and read it.
16
A
On 14, it says, might have decreased sexual
17
Page 48, line 7 through 17.
pleasure.
18
Q
Right.
19
A
Yes.
20
Q
I'm asking you whether or not you mentioned the
21
You mentioned that, correct?
sue the boys later in life.
22
A
No, I didn't put that in.
23
Q
How about infection?
24
A
In my deposition?
25
Q
On page 48.
Did you mention infection?
Let me see here.
1468
1
A
I didn't have infection on there either.
2
Q
Right.
What you said was this:
"She goes into
3
great detail about how the American Academy of Pediatrics
4
doesn't recommend it, and she tells them the procedure, that
5
the -- the risks there are, and how some babies -- or some
6
boy babies don't like it later in life and they might come
7
back and sue their parents, how they might have decreased
8
sexual pleasure, and that caring for an uncircumcised penis
9
isn't difficult at all, and she'll go into that, and that's
10
about it."
Correct?
11
A
Correct.
12
Q
You didn't mention bleeding, did you?
13
A
No, I didn't mention it, but I mentioned the risks
14
that there are.
15
bleeding.
16
Q
And that would include the infection, the
All right.
Now, decreased sexual function, I
17
understand that you -- that your testimony is is that Dr.
18
Kantak has always talked about that as long as back as you
19
can remember, correct?
20
A
Correct.
21
Q
Now, in 1997, isn't it true that you didn't have
22
the hearing screen yet?
23
A
That's right.
24
Q
The hearing screen didn't come in until a year or
25
so later, correct?
1469
1
A
I don't know when this hearing screening came in.
2
Q
You indicated in response to direct questions, Ms.
3
Thilmony, that Dr. Kantak is always patient, correct?
4
A
Always patient -- yes, I guess.
5
Q
Ever seen her have a bad day?
6
A
No, not really.
7
Q
She's always cool, calm and collected, correct?
8
A
Yes.
She can say she's having a bad day, but I've
9
10
never noticed in it her manner at all.
Q
Now, back in '97 -- well, let's rephrase that
11
question.
During the week of March 5th through the 8th, you
12
only worked two days, correct?
13
A
I believe so.
I would have to look at the hours.
14
Q
Were you on duty on Saturday as well?
15
A
So where are you starting?
16
Q
Well, start on the 5th.
17
A
Let's see here.
18
Q
How about the 6th?
19
A
Nope.
20
Q
How about the 7th?
21
A
Yes.
22
Q
And the 8th?
23
A
Yes.
24
Q
Were those eight-hour shifts?
25
A
Yes.
Did you work on the 5th?
No, I did not.
1470
1
2
Q
Who was the on-call pediatrician on Saturday, Ms.
Thilmony?
3
A
I would have to see records for that, too.
4
Q
You have no idea?
5
A
No.
6
Q
7
Thank you.
Nothing further.
THE COURT:
Redirect.
8
9
BY MS. LORD:
10
Q
Ms. Thilmony, Mr. Baer was asking you questions as
11
far as how often you worked with Dr. Kantak.
12
testified that she came to MeritCare in 1988.
13
working at MeritCare in 1988?
Dr. Kantak has
Were you
14
A
Yes.
15
Q
Were you working as a nursery charge nurse or had
16
you worked as a nursery charge nurse between 1988 and 1997?
17
A
Yes.
18
Q
In that time, can you say how often per month you
19
would have worked with Dr. Kantak?
20
A
Probably a couple times a month.
21
Q
Taking a couple times a month times the -- say,
22
extrapolating that, about 24 times a year times the number
23
of years between 1988 and 1997.
24
25
A
Okay.
Nine years.
How many times you're looking
for or -1471
1
Q
Can you give an estimate based on extrapolating
2
that time?
3
A
Probably a couple hundred times.
4
Q
Ms. Thilmony, you've also talked -- Mr. Baer asked
5
you questions about reactions that babies have had, and you
6
didn't have an opportunity to give your complete answer for
7
the jury.
8
with babies who are getting ready for circumcision or having
9
circumcision performed?
10
11
12
A
Can you explain the reactions that you've seen
During the circumcision or just getting ready for
a circumcision is what -- what you're saying?
Q
For a baby who's getting ready for circumcision or
13
having a circumcision procedure done, can you explain how
14
babies' reactions are during that procedure with the use of
15
anesthesia?
16
A
It varies with every baby.
Just sometimes
17
unwrapping the baby, the baby will cry.
And swaddling --
18
and that's why we started swaddling the arms and giving them
19
the sugar in the pacifier.
20
through it, some babies cry, and you don't know if it's
21
because their legs are exposed or if they have a burp or if
22
they're hungry, because we don't want them to eat before the
23
circumcision.
24
take them off the board and put their diaper on and swaddle
25
them again, they're quiet and fine.
And some babies will sleep right
And, I guess, usually afterwards, once we
1472
1
Q
Ms. Thilmony, Mr. Baer also referenced your
2
deposition testimony as far as if you could tell when the
3
circumcision had occurred.
4
would be based on circumcision checks.
You had testified today that it
Do you recall that?
5
A
Yes.
6
Q
I would like to refer you to page 52 of your
7
deposition, which Mr. Baer did not read to the jury.
8
52, line 8.
9
A
Okay.
10
Q
Were you asked this question and did you give this
11
answer?
12
circumcised?"
13
around 11:00, because checks were started at 11:00."
14
"Question:
Page
Can you tell from here what time he was
"Answer:
We can approximately tell it's at
15
A
That's right.
16
Q
Ms. Thilmony, you had mentioned about the bulb,
17
the suctioning bulb, that's included for the boys?
18
A
Yes.
19
Q
At MeritCare Hospital do girls also -- do the
20
bassinets for the girls also come equipped with the
21
suctioning bulb?
22
A
Yes.
23
MS. LORD:
24
THE COURT:
Mr. Baer.
25
1473
1
RECROSS-EXAMINATION
2
BY MR. BAER:
3
Q
Do you have a protocol that requires nurses to
4
stand by to suction girls who might spit up when they're
5
being circumcised?
6
MS. LORD:
7
THE COURT:
8
MR. BAER:
9
THE COURT:
10
MS. LORD:
11
THE COURT:
You may step down.
12
MS. LORD:
We call Mary Johnson.
13
Objection, Your Honor, argumentative.
Sustained.
I have nothing further.
Ms. Lord.
MARY JOHNSON,
14
15
oath as follows:
16
DIRECT EXAMINATION
17
BY MS. LORD:
18
Q
19
20
Good afternoon, Ms. Johnson.
Will you please
introduce yourself to the jury?
A
My name is Mary Johnson.
And I'm an R.N. at
21
MeritCare Hospital in the Family Birth Center.
22
there 25 years.
23
24
25
Q
I've worked
Can you explain for the jury your training as an
R.N.?
A
I graduated from the St. Luke's School of Nursing.
1474
1
Q
Ms. Johnson, were you working at the Family Birth
2
Center during Josiah Flatt's or Anita Flatt's hospital
3
admission?
4
A
I wasn't working those days, but I've been
5
employed there 25 years, so, yes, I was -- I was employed
6
there.
7
Q
8
But you weren't working for Josiah Flatt's or
Anita Flatt's hospital admission in March of '97, correct?
9
A
No, I wasn't.
10
Q
So you weren't involved with Josiah Flatt's
11
circumcision, correct?
12
A
That's correct.
13
Q
Ms. Johnson, as a nurse at the Family Birth
14
Center, have you held the position or done nursing duties as
15
a nursery charge nurse?
16
A
Yes, I have.
17
Q
And as a nursery charge nurse, have you had the
18
opportunity to work with Dr. Kantak when she's covering the
19
nursery?
20
MR. BAER:
21
on relevancy and duplicative.
22
duty, she has nothing to offer, and it is duplicative of
23
other witnesses.
24
THE COURT:
Your Honor, I'm going to object based
It's simply -- she wasn't on
Ms. Lord.
25
MS. LORD:
Your Honor, under Rule 407 and the
1475
1
cases I've cited to the Court, we would request that Ms.
2
Johnson be able to testify about Dr. Kantak's routine and
3
habit as allowed under the Rules of Evidence.
4
5
6
THE COURT:
Q
Objection is overruled.
Proceed.
Ms. Johnson, have you
worked with Dr. Kantak at the Family Birth Center?
7
A
Yes, I have.
8
Q
And for how many years have you worked with Dr.
9
10
11
12
13
Kantak at the Family Birth Center?
She came to the hospital
in 1988.
A
I have -- I have been a nursery charge
approximately 10 years.
Q
Can you estimate how often you worked with Dr.
14
Kantak as the nursery charge nurse when she's been in the
15
nursery?
16
A
As an estimate, I would say 15 to 20 times a year.
17
Q
Are you familiar with Dr. Kantak's procedure or
18
routine as she's covering the nursery?
19
A
Yes.
20
Q
Does Dr. Kantak have a routine?
21
A
Yes, she does.
22
Q
Did she have a routine in 1997?
23
A
As far as I can remember, she's always done the
24
25
same things in the same order.
Q
And you're familiar with it?
1476
1
A
Yes.
2
Q
Will you explain for the jury what Dr. Kantak's
3
routine was in 1997, when she was in charge of the nursery,
4
starting with when she would come into the nursery in the
5
morning?
6
A
She would come into the nursery, and she usually
7
says, Well, who's my boss today?
8
would tell her what we had in store, how many admissions,
9
discharges, circumcisions that were on board for the day, on
10
And then we would -- we
the schedule for the day.
11
Then she would proceed to examine the newborn
12
babies, do admission exams, discharge exams, and
13
circumcisions as they needed to be done.
14
of that, we would go on rounds, which is that we would go
15
see all the mothers or parents of the babies that were seen
16
in the nursery that day.
17
18
19
Q
Would Dr. Kantak return to the nursery after
rounds?
A
Then following all
Yes, she would.
20
Q
What for?
21
A
To chart.
22
Q
And was Dr. Kantak consistent in that routine?
23
A
Yes, she was.
24
Q
From your experience in working with Dr. Kantak,
25
To write in her charts.
would she ever document that she's discussed hepatitis B or
1477
1
circumcision with a parent before she went on rounds?
2
A
Not that I recall.
3
Q
Do you assist the pediatrician when you go on
4
rounds in keeping track of which rooms you've gone into?
5
A
Yes, I do.
6
Q
Do you ever -- or has Dr. Kantak, to your
7
knowledge, ever decided, Well, let's just skip a room?
8
A
No, never.
9
Q
Could you explain for the jury Dr. Kantak's
10
procedure when she would go on rounds to talk to a parent
11
after a newborn baby exam for a baby boy?
12
A
I will probably have to try to slip into Dr.
13
Kantak a little bit here.
She walks into the room -- she
14
knocks, walks into the room, and says, I am Dr. Kantak, I'm
15
the pediatrician, and I examined your baby boy, and he looks
16
good.
And then she will proceed to say that she has some
17
things to visit with them about; right now we talk about
18
three things; hepatitis vaccine, the hearing screen, and a
19
circumcision.
20
carry with me information sheets on all three things.
21
year was the baby born again?
So -- and we -- as a nursery charge nurse, I
What
22
Q
1997.
23
A
I don't believe we were doing the hearing screen.
24
So she would explain -- she would ask the patient if they
25
heard of the hepatitis vaccine.
And they would say, yes or
1478
1
no.
2
the hepatitis and how it was given, then give them the
3
information sheet.
4
And if they said, no, she would explain to them about
Then she says, Now it's a boy.
I don't know
5
whether or not you've decided whether or not you want this
6
baby to be circumcised.
7
circumcised?
8
9
And then, Would you like your baby
And the -- and the parent would say, yes, no.
Yes, the -- then she would -- she would say, Why
do you want him circumcised?
If the father was there, she
10
would also ask the father why he wanted the baby
11
circumcised.
12
Then she would proceed to explain to them that it
13
is not medically indicated, and if -- and there are -- if
14
you would leave the -- leave it alone, that the baby at
15
five, six years of age, the foreskin would retract on its
16
own, and just teach the cleanliness and stuff.
17
would -- usually says -- always says, as -- as you may know,
18
there's great deal of controversy around circumcision.
19
there are people who are suing their parents for having a
20
circumcision.
21
sexual pleasure, and they're suing their parents to have the
22
foreskin put back on.
23
And then she
And
And they're saying that they have decreased
She said, there are risks, and then she will go
24
into the circumcision, say that there are some risks,
25
there's risk of bleeding, risk of infection.
And we use
1479
1
lidocaine as an -- as an anesthetic.
2
small risk that the baby could have a reaction to the
3
lidocaine.
4
And there is a small,
Let's see if I can -- come back -- then we'll say,
5
Are there any questions?
And then either there are
6
questions and she'll answer them or -- and then she says, I
7
would like you to read this book, and that's a circumcision
8
booklet.
9
and she would refer to a page number in there that she would
And before that, we had an infant care booklet,
10
like them to read.
And she said, This will be done in the
11
morning, a nurse will come later tonight and have you read
12
and sign a consent.
Then she would be done.
13
Q
Ms. Johnson, you testified about a booklet.
14
A
Mm-hmm.
15
Q
Ms. Johnson, you testified that Dr. Kantak would
16
give a booklet.
I have what's marked Trial Exhibit 105.
17
this the booklet you're referring to?
18
A
It is.
19
Q
And you also testified that before this booklet
Is
20
was being given out that Dr. Kantak would refer to pages in
21
another booklet.
22
referring to?
23
24
25
A
Is Trial Exhibit 58 the book you were
That's correct.
And I don't remember the page
number, though.
Q
Okay.
Does Dr. Kantak take her time in answering
1480
1
questions and discussing babies with --
2
3
4
5
MR. BAER:
Q
Objection, leading.
What is Dr. Kantak's manner
when she discusses circumcision with parents?
A
She never varies in her speech, so she's very
6
patient with her presentation to the patient about
7
circumcision.
8
9
Q
If parents have questions, does she take the time
to answer them?
10
11
12
A
Yes, she does.
She generally sits down when she
comes into the room or -- she is either standing or sitting.
Q
There's been testimony in this case that -- from
13
Ms. Flatt that Dr. Kantak just stepped a few steps into the
14
room and said -- that Dr. Kantak said, I am going -- I am
15
Dr. Kantak and I'm going to circumcise your baby.
16
something that Dr. Kantak would say or do, in your
17
experience?
18
A
I have never heard her do that.
19
Q
How common is it for a parent to consent to
20
Is that
circumcision, in your experience?
21
A
It's quite common.
22
Q
Have parents ever given reasons for why they're
23
consenting to circumcision?
24
MR. BAER:
25
THE COURT:
Objection, hearsay.
Sustained.
1481
1
2
MS. LORD:
I have no further questions, Ms.
Johnson.
3
THE COURT:
4
Mr. Baer.
CROSS-EXAMINATION
5
BY MR. BAER:
6
Q
Ms. Johnson, when is the last time you worked with
7
8
9
Dr. Kantak doing rounds?
A
I believe it was in November.
November or
December.
10
Q
Of 2002?
11
A
Correct.
12
Q
And you have been doing it 15 to 20 times, your
13
best estimate, per year since 1988, correct?
14
A
That's right.
15
Q
And your testimony is that her -- her speech has
16
not changed at all over the years, correct?
17
A
I said that, yes.
18
Q
And back in '88, Dr. Kantak was not using
19
20
lidocaine, was she?
A
I don't believe I was making rounds -- when did
21
she come?
22
I -- because I wasn't in the nursery prior to that, I was
23
just labor room or charge.
24
25
Q
I've been doing rounds with her for 10 years and
Oh.
So 10 years ago, in 1993, you got to the
hospital and doing nursery work, correct?
1482
1
A
That's when I was oriented to the nursery or about
2
that time.
3
Q
4
lidocaine?
Okay.
And at that time was Dr. Kantak using
5
A
As far as -- as long as I can remember, she's used
6
lidocaine.
7
Q
Now, today you didn't mention anything about if
8
you had a baby girl, would you want to remove their breasts,
9
did you?
10
A
No, I didn't.
11
Q
But you did in your deposition when asked to give
12
what Dr. Kantak's talk was, correct?
13
A
Yes, I did.
14
Q
So it changed -- her talk changed between the time
15
of her deposition -- and your deposition, by the way, was
16
taken on January 6, 2003, correct?
17
18
19
20
A
I haven't heard her say that the last few times
that I've been with her.
Q
Ms. Johnson, you just said the last time you
worked with her was in November of 2002, correct?
21
A
Correct.
22
Q
And when I took your deposition on January 6,
23
2003 -- which is after that, correct?
24
A
Mm-hmm.
25
Q
You were under oath, correct?
1483
1
A
I was under oath.
2
Q
3
to 14.
4
"Answer:
5
recommended, and she said she -- she has been saying that
6
there are places -- there are people who are suing their
7
parents for circumcision, and they're having to sew the skin
8
back on.
9
you had a girl, would you -- if there was breast cancer in
10
the family, would you have the breasts removed, and -- and
11
she'll -- she just goes in great detail about that."
12
Look at page 14 -- at the bottom of page 13 and on
I asked you to continue on about what does she say.
She says it is not recommended, not medically
And then she'll mention that there are girls -- if
13
A
I guess -- I read my deposition before, yes.
14
Q
15
A
Yes, you did.
16
Q
And you gave that under oath on January 6, 2003,
17
correct, Ms. Johnson?
18
A
Yes.
19
Q
And today you didn't mention that, did you, as
20
21
22
part of her talk?
A
No.
I think I said that I would try as best I
could to say what she said in the room.
I forgot this part.
23
Q
All right.
24
A
I'm sorry.
25
Q
Did you also forget the part that you mentioned
1484
1
2
3
4
5
about prevention of penile cancer?
A
Yes, I forgot that part also.
And urinary tract
infections, I don't believe I mentioned that, too.
Q
Now, you were asked by Kathy Kilfoyle to testify
on Dr. Kantak's routine, correct?
6
A
Yes.
7
Q
And your name was just made available for me in
8
December of 2002, correct?
9
A
I'm not sure when you heard about it.
10
Q
Was it about in December that you were asked?
11
A
I think so.
12
Q
And so you volunteered to support Dr. Kantak,
13
Yes.
correct?
14
A
Yes.
15
Q
And you work with her all the time or frequently?
16
A
I work with her frequently.
17
Q
She's one of the pediatricians that the group
18
there at the nursery work with on a regular basis, correct?
19
A
Yes.
20
Q
Every time you're working in the nursery, you're
21
working either with Dr. Kantak or one of her colleagues from
22
the pediatrics department, correct?
23
A
Yes.
24
Q
You also didn't mention death today, did you?
25
A
No, I didn't.
1485
1
2
Q
That's because Dr. Kantak doesn't mention death,
does she?
3
A
In my deposition I did say that, but when I read
4
through it, I really should have corrected myself, because
5
it is not mentioned that I've ever heard.
6
Q
You have never heard her mention that, have you?
7
A
No, I haven't.
8
Q
Look at page 33, Ms. Johnson.
9
January 6:
Okay.
Did I ask you on
When Dr. Kantak is doing her rounds" --
10
MS. LORD:
11
THE COURT:
12
That was an error on my part.
Objection.
Just a moment.
I'm sorry to interrupt
you.
13
MS. LORD:
14
and answered.
15
to death and it was an error.
16
MR. BAER:
It's been asked
She's already acknowledged that she testified
Your Honor, I have an opportunity to
17
read what she said under oath, to let the jury decide
18
whether it was error.
19
MS. LORD:
Your Honor, it's only for impeachment.
20
This witness has already testified that she made an error at
21
her deposition testimony.
22
23
THE COURT:
Q
Sustained.
Ms. Johnson, at the
24
conclusion of the deposition, your attorney asked to read
25
and sign the deposition, correct?
1486
1
A
She did.
2
Q
And that meant you got a copy of the deposition to
3
read and sign and make any changes that were necessary,
4
correct?
5
A
Correct.
6
Q
And did you then read and sign, Ms. Johnson?
7
A
Yes.
8
Q
Showing you what has been marked for
9
10
identification purposes as Exhibit 64, is this a copy of the
read and sign?
11
A
It is.
12
Q
Does it contain your signature?
13
A
Yes.
14
15
16
MS. LORD:
Q
Your Honor.
And does it contain all the
changes?
17
THE COURT:
18
MS. LORD:
Just a moment.
I object to this line of questioning as
19
improper use of impeachment when this witness has already
20
explained that she made an error at the deposition.
21
also object under Rule 403 as cumulative and a waste of
22
time.
And
23
24
25
THE COURT:
Q
Sustained.
Let's move on.
You did not change it on
the correction sheet, did you?
1487
1
MS. LORD:
2
THE COURT:
3
Mr. Baer, please move on.
4
Q
Same objection, Your Honor.
Sustained.
At the time of your
5
deposition, you reviewed the medical records in this case,
6
didn't you?
7
A
8
9
10
You showed me the teaching sheet, you showed me
that I wasn't working that day.
MS. LORD:
I don't recall --
Objection, Your Honor, as beyond the
scope of direct.
11
THE COURT:
12
MR. BAER:
13
THE COURT:
14
MR. BAER:
Nothing further.
15
MS. LORD:
Nothing further, Your Honor.
16
THE COURT:
17
MS. LORD:
18
What's the relevancy, Mr. Baer?
It's bias, Your Honor.
Objection is sustained.
You're excused.
Call Dr. Eric Lunn.
ERIC R. LUNN, M.D.,
19
20
oath as follows:
21
DIRECT EXAMINATION
22
BY MS. LORD:
23
Q
Good afternoon, Doctor Lunn.
24
A
Good afternoon.
25
Q
Would you please introduce yourself to the jury.
1488
1
2
A
My name is Eric Ryan Lunn.
I am a pediatrician in
Grand Forks, North Dakota.
3
Q
And how long have you been a pediatrician, Doctor?
4
A
I completed my pediatric training in 1987.
5
Q
What does your pediatric practice consist of?
6
A
About 80 percent of it is doing general
7
pediatrics, taking care of children from birth to 21 years
8
of age.
9
of pediatrics and an assistant dean at the medical school.
10
11
12
Q
About 20 percent of my job is associate professor
As a pediatrician in clinical practice, can you
describe a typical day for the jury.
A
Well, there isn't a typical day.
I have -- I have
13
several types of typical days.
In pediatrics we -- in Grand
14
Forks, we rotate through our nursery, so we don't work in
15
the nursery every day, so I work in the nursery about once
16
every six weeks, like a lot of practices.
17
weeks, I'm in the nursery quite a bit.
So during those
18
Other weeks, I spend most of my time in the
19
office, seeing patients as an outpatient setting, and then
20
occasionally have patients in the hospital -- the older
21
children in the hospital.
22
responsibilities are kind of mixed almost on a daily basis
23
throughout that.
24
25
Q
And then my teaching
And when you're seeing patients, I assume you're
always talking to parents; is that correct?
1489
1
A
Correct.
I mean, the patients are -- are the
2
children, but we treat them as family units because we have
3
to work so intimately with the parents or the guardians.
4
5
Q
As a pediatrician, have you yourself performed
circumcision?
6
A
Yes, I have.
7
Q
Have you obtained -- have you obtained consent
8
from parents for circumcision on their son?
9
A
Say that again.
10
Q
Have you obtained consent from a parent for
11
circumcision?
12
A
Yes.
13
Q
Do you have a strong opinion one way or the other
14
15
about the circumcision procedure?
A
I really don't.
I -- I -- I -- I'm not
16
anticircumcision, I don't think I'm pro circumcision.
17
actually don't have a strong opinion one way or the other.
18
19
Q
Doctor, you were contacted by our office in April
of 2001 to review Dr. Kantak's care in this case, correct?
20
A
That's right.
21
Q
And at that time you were provided copies of
22
I
Josiah Flatt's medical records, correct?
23
A
That's correct.
24
Q
And you have reviewed -- have you reviewed those
25
records and are you familiar with those records?
1490
1
A
Yes, I am.
2
Q
Since that time, you have also reviewed other
3
documents, correct?
4
A
That is correct.
5
Q
Can you explain for the jury what else you've
6
7
reviewed?
A
Besides the records of Josiah and his mother, I
8
reviewed the depositions from the expert witnesses on both
9
sides of the cases.
I've reviewed the depositions from
10
various nurses at MeritCare.
And I've reviewed some of the
11
policy statements that were -- that were asked of me during
12
the deposition by Mr. Baer.
13
14
Q
Were you also provided the depositions of Dr.
Kantak and Mr. and Mrs. Flatt?
15
A
Yes, I was.
16
Q
Did you review those depositions as well?
17
A
Yes, I did.
18
Q
Doctor, before I go into more detail about your
19
qualifications, I would like to ask you about your opinions
20
in the case.
21
opinion, to a reasonable degree of medical certainty, about
22
whether Dr. Kantak met accepted standards in obtaining
23
consent from Anita Flatt for Josiah Flatt's circumcision?
In your review of the case, do you have an
24
A
Yes, I believe she did.
25
Q
Do you have an opinion, to a reasonable degree of
1491
1
medical certainty, whether Josiah suffered any injury as a
2
result of the circumcision procedure?
3
A
No, I don't believe he did.
4
Q
Doctor, in reviewing your C.V., I note that, as
5
you said, you are at Altru Health System; is that correct?
6
A
That is correct.
7
Q
And how long have you been at Altru?
8
A
Well, I was -- the predecessor of Altru was the
9
10
Grand Forks Clinic.
The Grand Forks Clinic and the hospital
merged in 1997 after the flood, so I've actually been within
11
that health system from 1987, when I moved to Grand Forks,
12
through the present time.
13
14
15
Q
Can you explain for the jury your educational
background and how you became a doctor?
A
You don't want to start at kindergarten?
I assume
16
you want to start -- I went to college at NDSU after high
17
school, then I went to medical school at the University of
18
North Dakota.
19
two-year medical school to a four-year school, so some of
20
the class stayed and graduated, they received their M.D.
21
degree from the University of North Dakota.
22
At that time it was transitioning from a
I was part of the class that transferred and I
23
received my medical degree from the University of South
24
Carolina.
25
the University of Texas medical branch in Galveston, Texas,
And after medical school graduation, I went to
1492
1
where I did my pediatric training.
2
Q
So you did your residency in pediatrics?
3
A
Correct.
4
Q
What does a pediatric residency involve?
5
A
It involves -- it's a three-year program of
6
intensive study in how to care for children from birth
7
through 21 years of age.
That involves dealing with
8
attending physicians who have already completed their
9
training in various areas of pediatrics.
10
Q
And you're board certified in pediatrics?
11
A
That's correct.
12
Q
What does it mean to be board certified in
13
pediatrics?
14
A
It basically is a testing process that you go
15
through to -- and you have to pass a test to become board
16
certified after serving in a pediatric residency program.
17
Q
Doctor, you also mentioned your work at the
18
University of North Dakota Medical School.
19
for the jury your position and what your duties are at the
20
University of North Dakota Medical School?
21
A
I really have two jobs.
Can you explain
Part of my job is, as a
22
pediatrician, I teach medical students the care of children,
23
so I teach medical students and family medicine residents in
24
Grand Forks how to care for children.
25
The other part of my job, which is the assistant
1493
1
dean part, our state is split up into four quadrants with
2
medical students, and I'm in charge of the medical students
3
that are in the northeast part of the state, which is
4
headquartered in Grand Forks.
5
administrative role with the medical school.
So I -- so that's more of an
6
Q
Doctor, in view of your years of clinical practice
7
in the field of pediatrics, do you feel you are familiar
8
with accepted medical practice in obtaining informed consent
9
from a parent for a circumcision?
10
A
Yes, I do.
11
Q
Do you feel you are familiar with the risks and
12
benefits of circumcision?
13
MR. BAER:
14
THE COURT:
Objection, leading.
Overruled.
15
A
Yes, I do.
16
Q
Doctor, you mentioned that
17
part of your involvement at the medical school includes
18
training medical students.
19
include talking to medical students about circumcision or
20
obtaining informed consent?
21
MR. BAER:
22
THE COURT:
23
24
25
Does part of that training
Objection, leading.
Overruled.
Answer the question,
please.
A
Yes.
When they rotate on their pediatric
rotation, they spend some time in the nursery with us.
1494
1
2
Q
And what do you discuss or
how do you train those medical residents when they're on
3
rotation in the nursery about circumcision or talking to
4
parents about circumcision?
5
A
Basically talk to them about how we talk to the
6
family about the circumcision, and going over the risks or
7
benefits of the procedure, and how you can answer questions
8
to the family, and that it's a dynamic process with the
9
family.
10
Q
Doctor, in your opinion, is there one way to
11
obtain informed consent from a parent for a circumcision
12
procedure?
13
MR. BAER:
14
THE COURT:
15
A
Objection, leading.
Overruled.
I think there are several ways, and it's a dynamic
16
process, and it will vary from family to family because some
17
families have different questions, so it varies from
18
individual to individual.
19
20
21
Q
Doctor, do you consider
circumcision to be a risky procedure?
A
No.
It's not a riskless procedure, but it's a --
22
there are some risks that are involved, but I would not
23
consider it a risky procedure.
24
25
Q
Doctor, in your practice, what do you discuss with
parents who are considering having circumcision for their
1495
1
son?
2
MR. BAER:
3
THE COURT:
4
A
Overruled.
I generally will talk to them -- that I usually
5
will start off saying there -- there isn't a medical benefit
6
for routine circumcision, that there are studies that have
7
shown there may be a decreased incidence of urinary tract
8
infections within the first year of life, but that -- that
9
there -- with -- because of our academy statement -- and I
10
usually will mention our Academy of Pediatrics -- I'll
11
explain that that's our national group of pediatricians --
12
have not recommended routine circumcision for all newborns.
13
And then we'll talk a little bit about the risks
14
that are involved.
I will mention bleeding, I will mention
15
infection, I will usually mention adhesions, because those
16
are the three of the most common ones.
17
the procedure.
18
depending upon the questions that the family has.
And we'll talk about
I sometimes will go into more detail,
19
Q
How common is bleeding?
20
A
It occurs -- I wouldn't -- I would say, commonly,
21
probably three or four percent.
Depends upon what you're
22
talking about, the degree of bleeding.
23
circumcisions will bleed a little bit, that after you put
24
the Vaseline gauze on stops the bleeding.
25
bleeding to the point of requiring cauterization or sutures,
I mean, a lot of
As far as
1496
1
I think it's extremely rare.
I've never seen it in the
2
circumcisions I've done through the last 15 years.
3
Q
How common is infection?
4
A
Again, I don't think it's very common.
If you
5
look at the complications of circumcisions in general, the
6
reported statistics say somewhere between .2 to .6 percent,
7
which, if you -- if you do that mathwise, that's two to six
8
circumcisions out of a thousand.
9
almost all of them are minor bleeding, low grade infection,
10
11
or skin adhesions.
Q
And of those two to six,
So then none of them are very common.
Doctor, will you discuss with parent -- or will
12
your discussion with parents vary, depending on their
13
questions?
14
A
Certainly.
15
Q
Doctor, the jury has heard testimony from Dr. Cold
Certainly.
16
about the function of the foreskin.
17
parents the function of the foreskin?
18
A
Do you discuss with
I don't routinely to all parents.
I -- certainly,
19
if they ask, I will discuss what functional aspects I know
20
of it, but I don't routinely with every patient or family.
21
Q
Doctor, the jury has also heard testimony on
22
sexual function or sexual pleasure.
23
function or sexual pleasure with the parent considering
24
circumcision?
25
A
Not routinely.
Do you discuss sexual
If -- if questions arise, my
1497
1
feeling is is that there's -- it certainly changes with
2
the -- with the skin being removed, and there is some
3
keratinization or overgrowth on the glans, but I don't feel
4
the literature is -- is -- knows one way or the other
5
whether there's decreased sexual function.
6
there's been research to really document that one way or the
7
other,
8
Q
9
10
11
I don't think
Doctor, why in your opinion do you believe Dr.
Kantak met accepted medical standards in obtaining informed
consent from Ms. Flatt in this case?
A
I think there are -- there were several things.
12
One is, in the medical records, there's a note documenting
13
that she discussed risks, benefits of the procedure.
14
There's a consent form that is signed by mother.
15
supporting documents were I think in some of the depositions
16
by the nurses, documenting what Dr. Kantak talks about to
17
the families.
18
And some
In Dr. Kantak's deposition, she talks about the
19
benefits, risks, complications of the procedure.
And in one
20
of the depositions there was supporting documents that
21
looked at the policy of MeritCare Hospital.
22
of MeritCare Hospital was to hand out written information
23
about the circumcision.
And the policy
24
25
Q
Doctor, I would like to turn your attention to a
booklet that Dr. Shoemaker has testified about in creating,
1498
1
entitled "Should Your Infant Boy Be Circumcised?"
2
marked as Trial Exhibit 105.
3
referring to?
4
A
This.
And it's
Is this the booklet you're
And then before this -- I think, before
5
they started using this, there was an infant care handbook
6
which had a section in it that discussed similar things.
7
Q
Is this the book you're referring to?
8
A
That is correct.
9
Q
Doctor, in your -- do you have an opinion about
10
11
the "Should Your Infant boy Be Circumcised?"
A
I feel this is an excellent booklet.
I have
12
looked at booklets from several places, including ours, and
13
I think this is a very comprehensive booklet.
14
Q
Doctor, Ms. Flatt has testified that she did not
15
receive any booklets while she was at MeritCare Hospital in
16
March of 1997.
17
booklet, would Dr. Kantak's discussion meet accepted medical
18
standards as a pediatrician, in your view?
19
20
21
A
Even without receiving this circumcision
Yes, I believe it does, with the documentation in
the medical records.
Q
And, Doctor, you're referring to Dr. Kantak's
22
documentation in the medical records.
I would like to refer
23
you to the medical record regarding Dr. Kantak's
24
documentation.
25
in reaching your opinion?
Can you show the jury what you're relying on
1499
1
A
What I'm talking about is right here where the --
2
where it says, "Risks of local anesthesia and circumcision
3
discussed.
4
understanding."
5
understand, with the date of March 6, 1997.
6
Q
Procedure described.
And that's Dr. Kantak's signature, I
And, Doctor, how do you know that Dr. Kantak
7
documented this on that day?
8
MR. BAER:
9
THE COURT:
10
Q
Parent expresses
Sustained.
Doctor, if you have a
11
discussion with a parent about circumcision, do you document
12
that in your practice?
13
MR. BAER:
14
THE COURT:
Overruled.
15
A
Yes, I do.
16
Q
Doctor, is it accepted
17
medical practice not to list the risks that are actually
18
discussed with the parent?
19
MR. BAER:
20
THE COURT:
Objection, leading.
Overruled.
21
A
Yes, that is correct.
22
Q
In your opinion, does Dr.
23
Kantak's documentation of her discussion with the parent
24
meet accepted standards of practice in the medical
25
community?
1500
1
A
Yes, it does.
2
Q
Doctor, how many circumcisions have you performed
3
4
in your practice?
A
Can you estimate?
It's a guesstimate, estimate.
Probably 50 a year
5
I -- I would look at, and I've been there 15 years, so 600,
6
800, somewhere in that neighborhood.
7
Q
Doctor, in your experience, with respect to
8
talking to parents about circumcision, are there times where
9
parents have made up their mind about circumcision before
10
you've even discussed the risks or benefits of the
11
procedure?
12
MR. BAER:
13
THE COURT:
14
A
Objection, leading.
Overruled.
Almost all the time the parents have formulated an
15
opinion of what they want to do, whether it's circumcision
16
or not to circumcise, before I talk to them.
17
Q
In your experience, Doctor, if a parent has
18
already made up his or her mind to circumcise the child, how
19
often do they change their mind after talking with you about
20
the procedure?
21
22
MR. BAER:
relevancy.
23
24
25
Objection, speculation, leading, and
THE COURT:
A
Overruled.
Rarely, if at all.
I can't off the top of my head
think of anybody who had already decided to undergo the
1501
1
2
circumcision and changed their mind.
Q
Doctor, there's been discussion regarding Dr.
3
Kantak's documentation of her operative note for the
4
5
review that record?
Have you had an opportunity to
6
A
Yes, I have.
7
Q
Do you have an opinion as to whether or not Dr.
8
Kantak's documentation of the circumcision procedure meets
9
accepted medical practice?
10
A
Yes, it does.
11
Q
And can you explain for the jury why you believe
12
13
that?
A
This is the standard operative note that you see
14
15
with circumcisions throughout the country.
Q
Do you know whether or not the Joint Commission
16
has issued any standards or requirements with respect to
17
circumcision procedure?
18
MR. BAER:
19
THE COURT:
You can answer that with a yes or no.
20
A
Could you repeat the question, please?
21
Q
Have you checked with the
22
Joint Commission of Accreditation of Hospitals regarding
23
documentation requirements for circumcision?
24
A
Yes, I have.
25
Q
And what was your finding?
1502
1
MR. BAER:
2
THE COURT:
3
A
Objection, hearsay.
Overruled.
I had a discussion with them and asked them if --
4
MR. BAER:
5
THE COURT:
Objection, hearsay.
Without saying the specifics of what
6
they told you, you can just give a sense of what it was.
7
Don't relate the exact words.
8
9
10
11
A
Yeah.
Okay.
The sense was that this was an accepted
operative note for circumcision.
Q
Do you believe Dr. Kantak's
documentation meets accepted medical practice?
12
A
Yes, it does.
13
Q
Doctor, there are comfort measures that are used
14
by pediatricians for pain control during circumcision?
15
A
Yes, there are.
16
Q
Can you explain for the jury what those are?
17
A
The three things that I use, one is to swaddle the
18
top part of the child, to put the arms over the baby's tummy
19
and chest and to wrap him in a blanket, which is a comfort
20
level they're kind of used to because they're used to being
21
inside of mom.
22
The second one would be the use of lidocaine
23
anesthesia.
24
pacifier.
25
And the third one is to use a sugar-dipped
THE COURT:
I'm sorry to interrupt, but we need to
1503
1
stop now for the day.
You may step down.
2
Counsel, could I see you at the bench, please?
3
(Discussion at the bench, out of the hearing of
4
5
the jury and the court reporter.)
THE COURT:
Ladies and gentlemen of the jury, I
6
have discussed with the attorneys what they anticipate the
7
rest of the trial will be.
8
always work the way we plan, as you've learned, we're hoping
And understanding things don't
9
to get all of the evidence to you, if not by morning, by
10
early afternoon.
11
expecting then, if that's the way it goes, that you may be
12
getting closing arguments and instructions in the afternoon,
13
and you may go into the deliberations thereafter.
14
That's what the hope is.
And we are
So what that means is, you -- if it goes that way
15
and we get that far, that you would be here at the
16
courthouse deliberating until you reach a decision.
17
Sometimes that goes into the evening hours.
18
different.
19
I know it's Valentine's Day, I know that, but I can't help
20
that.
21
sweetheart that they're going to have to wait.
22
something planned, they're going to have to wait until
23
later.
24
25
Each case is
Depends on -- depends on how long it takes.
So
You're going to have to tell your spouse and your
So you should come tomorrow prepared.
If they have
That --
that may happen, that you may be here into the evening
1504
1
hours.
Once you go into deliberations, you do not have
2
contact with the outside.
3
no contact with family or friends, you're with the bailiffs,
4
deliberating.
5
things to sustain you, but that's how it works.
6
want to let you know that.
In other words, no phone calls,
We do feed you, you know, we do do those
So I just
It still depends on how fast the
7
evidence comes in tomorrow, but that's a likely scenario.
8
hope that you can plan accordingly.
9
I
We are going to start again at 8:00 o'clock
10
tomorrow.
11
that.
12
will you -- you can wear your buttons, bring them back
13
tomorrow, put them on, and we should be able to get you into
14
the building sooner that way.
15
16
17
I know that is not convenient.
I understand
But I do have my reasons for doing it this way.
JUROR:
So
Any questions?
Are you saying that if we get the case
tomorrow, that we are stuck here through the weekend?
THE COURT:
I am saying that you're stuck here
18
until you reach a decision.
19
sometimes hours, but it does go into the evening.
20
words, I am not going to stop at 5:00 o'clock and let you go
21
home and come back.
22
JUROR:
In other
If we haven't reached anything by eleven,
23
what's the process?
24
still stuck?
25
That sometimes takes minutes,
THE COURT:
Say, 11:00 o'clock at night.
We're
I can't tell you because it depends on
1505
1
what the attorneys and I decide.
2
options that we might have.
3
JUROR:
Yes.
There's some different
Is there a problem for --
Does somebody want to explain to my
4
son why I'm not going to be at his basketball tournament on
5
Saturday then?
6
THE COURT:
7
We will do our best.
8
other questions?
All I can say is, we will do our best.
That's all I can tell you.
Thank you.
Okay.
Any
Court's in recess.
9
(Recessed at 5:03 p.m., the same day.)
10
- - - -
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1506

Trial Transcript

Transcription

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