The following article appeared in the Winter 1995, issue of The Compleat Mother:
By David J. Llewellyn, Attorney at Law*
It is an unfortunate fact in the United States that many physicians treat the foreskin of the penis as though it were a useless appendage, and therefore routinely remove it. It is equally tragic that so many pediatricians do not how to care for an intact child's penis properly. Many parents do not understand that when their child's penis has been damaged they have legal recourse.
In February, 1992, James Thomas Brown was born at Jackson Hospital and Clinic in Montgomery, Alabama. His mother knew the value of his foreskin, and, when asked if she wanted her baby circumcised if it were a boy, she said no. She never signed a consent for circumcision. Unfortunately, the day after his birth, little J.T. was taken from his mother by a nurse, strapped to a Circumstraint board, and was circumcised. This tragedy occurred because the nurse made an error and told the operating physician that permission had been obtained. J.T.'s mother brought suit on his behalf in the Circuit Court of Montgomery, Alabama, against Jackson Hospital and the Clinic and the pediatrician who performed the circumcision. Hugh V. Smith, Jr., of Montgomery, and myself represented J.T. The case was tried before a jury in July, 1995.
At the trial the defendants claimed they had not been negligent and also claimed J.T. had not been damaged. However, cross-examination established that the foreskin performs several valuable functions including protecting the glans of the penis from burns and other damage. J.T.'s lawyers also submitted evidence that the foreskin performs an important function in sexual intercourse and provides significant pleasure to the adult male. J.T.'s expert witness, Marilyn Milos, director of NOCIRC and Dr. James L. Snyder, of Clifton Forge, Virginia, offered testimony in regard to the important functions of the foreskin, the loss sustained be a child who has been circumcised, including loss the loss of sensitivity to the glans penis itself, the extreme pain suffered by a child undergoing circumcision, and the cost of surgical foreskin restoration. J.T.'s mother testified regarding the pain J.T. exhibited for several weeks after his circumcision. The jury found Jackson Hospital and Clinic liable for $10,000 in past damages and $55,000 in future damages for total damages of $65,000.
Wrongful circumcision of infants is, unfortunately, not as rare an occurrence as many parents would believe. Because circumcision has become so routine in American hospitals, incidents like the one involving J.T. Brown happen quite often. However, when they do, physicians are often able to discourage parents from pursuing their child's legal rights with specious excuses such as "he would have to have it done later anyway," or "everybody else has it done, so you should have too," or "we didn't do any damage." Many lawyers have probably been discouraged from taking such cases either because they are themselves ignorant of the foreskin's function or because they do not believe that such a case has much value.
Another tort, or civil wrong, that is often committed by doctors involves the forcible retraction of the infant foreskin. Although it has been established for over 25 years in the medical literature that the natural connections between the foreskin and the glans of the penis which exists at birth dissolve slowly over time, many physicians still ignorantly believe that these synechia, or what are often incorrectly called "adhesions," must be broken early in life. They, therefore, without consulting the parents, forcibly retract the foreskin and tear the connecting synechia. This causes the child extreme pain and may result in the formation of scar tissue, which can cause future problems. Parents should be aware that this ignorance extends even to pediatricians who treat lawyer's children. My wife had to pull our oldest son out of the hands of our first pediatrician and leave his office in tears because he was insistent upon forcibly retracting our son's naturally connected foreskin. Without his intervention our son's foreskin slowly retracted over the years and was fully retractable by the age of eight. His younger brother's foreskin was still not entirely retractable at the age of ten. However, this is entirely normal.
Generally the law does not permit a physician to carry out a non-emergency invasive or damaging procedure on a child without the parent's permission. If an infant's foreskin is forcibly retracted, resulting in tearing and pain, and the parents have not given their permission for the procedure, the law of most states provides that the parents may bring a suit on behalf of the child for assault and battery against the physician. Parents should be aware of these facts and should consult competent counsel if their child has been forced to suffer unnecessary pain without their permission.
Parents should also be aware that numerous children have been damaged by circumcision. One of the most common complications of circumcision is removing the skin of the shaft of the penis itself. This can result in many different complications including retraction of the penis into the base of the abdomen, curving of the penis or painful erections. The penis can be damaged further by cutting off part of the glans. Parents should be aware that while circumcision, in and of itself, causes damage and permanent loss, a negligently performed circumcision, even if done with permission, allows their child to recover damages. Because many states have enacted short statutes of limitation and/or repose, which significantly shortens the time within which persons may bring lawsuits for personal injuries, parents who believe their child has been damaged by negligently performed circumcision should consult with an independent physician and legal counsel without delay.
Unfortunately there are a few even more tragic cases each year that result in the total loss of the penis during circumcision or the death of the child from complications. If any of these events occur, parents should immediately contact legal counsel.
Some parents find out the facts about the risks and disadvantages of circumcision only after they have had their baby boy circumcised. Sometimes they have agreed to circumcision because the physician has given them false information regarding the purported benefits of the procedure. Sometimes they have not been fully informed of the risks of the procedure and of its consequences by the physician beforehand. If they have been deceived, the law in most states allows them to bring an action for fraud. If they have not been fully informed, the law of some states allows them to bring an action for failure to obtain informed consent. Parents with concerns in this regard should consult with a lawyer.
In short, parents whose children have been damaged through wrongful circumcision, forcible retraction, or negligently performed circumcision have legal rights which they can enforce on behalf of their child. No parent should fail to do so because such failure only encourages physicians to continue committing "penile torts." The safety of America's male infants is at stake unless parents call negligent doctors, hospitals and clinics to account.
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