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On October 16, 1998, three-week-old Dustin Evans, Jr. died in Cleveland, Ohio during anesthetized surgery necessary to repair his urethra, which had become blocked when his circumcision failed to heal.1 The boy's father is quoted as having said, "you think, 'what could go wrong with a circumcision?'"2 It appears that no physician fully informed Dustin's parents that serious complications can occur with circumcision, and that such complications can lead to further surgical procedures. However, the entire medical establishment, as well as individual physicians and hospitals must share part of the blame for needless tragedies that occur, such as that which befell Dustin Evans. Circumcision, while being a widespread and long-standing surgery in American medical practice, has never been the subject of a comprehensive, prospective investigation into its complication rates.3
Modern American medicine's reputation and esteem depend upon its adherence to scientific methodology and reasoning in making causal inferences. However, the initial practice of American medicine predated the ascendancy of microbial theories of certain diseases. Consequently, a procedure that may have come into use prior to a thorough examination of its scientific validity and may remain an inadequately proven procedure today. Routine infant male circumcision is one example.
Nineteenth century physicians used circumcision as a "medical" cure for masturbation, which was thought to cause disease.4 Amazingly, as medicine became more scientific, circumcision was never thoroughly reevaluated. Instead, the medical community developed alternate causal hypotheses of disease related to the presence of the foreskin of the penis to clinically justify its removal by circumcision.5
The medical necessity of circumcision was successfully questioned in 1949. That year, an influential article published in the British Medical Journal reviewed the rationales regarding the benefits of circumcision and failed to attribute medical utility to any of them.6 The article examined the development of the foreskin and its physiological importance and also exposed the varieties and types of complications attendant to circumcision.7 When the British National Health Service discontinued coverage for circumcision in response to these findings, the surgery essentially disappeared from that country.8
Contrary to the events in the United Kingdom, the United States experienced an increase in circumcision rates after World War II.9 It was not until 1975 that the American Academy of Pediatrics Report of the Ad Hoc Task Force on Circumcision (1975 AAP Report), in a review of available research, reached a conclusion similar to that in Britain, stating that "[t]here is no absolute medical indication for routine circumcision of the newborn."10 The 1975 AAP report, published in the AAP's journal Pediatrics, also concluded that good personal hygiene could replace this surgery in maintaining the health of the male genital organs.11 However, because the 1975 AAP report deemed the surgery unnecessary but not harmful when balanced against surgical complications, physicians continued to circumcise.12
Fourteen years later, a new AAP Task Force on Circumcision (1989 AAP report) revised the organization's position, stating that "new evidence has suggested possible medical benefits from newborn circumcision."13 While retaining the now quite old--but still unproven justifications of reducing sexually transmitted diseases (STDs) and cancer, the "new evidence" for a benefit from circumcision primarily consisted of studies asserting lower rates of urinary tract infections (UTIs) among circumcised infants.14 Unlike the AAP report, the 1989 version cited medical literature to support its conclusions.
However, on closer analysis, the 1989 AAP report's medical authority provides stronger support for the findings of the 1975 report. The 1989 AAP task force deemed almost all of the cited articles showing STD and UTI benefits from circumcision to be flawed, but found none of the cited articles with findings adverse to circumcision flawed.15 If the 1989 AAP task force chose to credit STD and UTI research that it knew to be methodologically flawed as it appears to have done, it would have breached scientific protocol. Methodological soundness is the preeminent consideration for those engaged in scientific investigation.16 It would be a failure to act in a scientifically responsible manner to give more credit to a larger number of flawed studies supporting the medical utility of circumcision than a smaller number of sound studies finding no medical utility from circumcision.
The AAP also drew questionable conclusions concerning infant pain during and after circumcision. The 1989 AAP report described the now acknowledged , but for many decades disputed, physiological pain responses as "transient and disappear[ing]" within 24 hours after surgery."17 This statement ignored the increasing knowledge of infant perceptive abilities and warnings concerning the unknown long-term effects of perinatal pain.18.
After a decade of continuing debate about circumcision, both inside and outside the medical field the AAP established another task force to review the controversial practice of routine neonatal circumcision. The new AAP task force issued a report in March of 1999 (1999 AAP report) that ultimately concluded, "[e]xisting scientific evidence demonstrates potential medical benefits of newborn male circumcision; however, these data are not sufficient to recommend routine neonatal circumcision."19 Though this statement was an improvement over the 1989 position, many of the research failings of the 1989 report recurred in the 1999 report.20 More importantly, the AAP equivocated in its duty to decide whether this surgery should be considered valid preventive medicine; instead, it left the decision to the "cultural" desires of parents.21 In doing so, the AAP failed to realize that decades of asserted medical utility had created these prevailing cultural "norms."
Another oddity of the medical practice of circumcision is that is is usually obstetricians, not pediatricians who perform circumcisions.22 This practice results in the anomalous situation of having physicians with experience in female reproductive anatomy performing unanesthetized surgery on a male reproductive organ. The American College of Obstetricians and Gynecologists (ACOG) historically has deferred to the latest AAP circumcision task force position statement on the medical utility of circumcision.23 Although much of the negligence asserted against the AAP may also attach to ACOG for its deference to the AAP's position, a discussion of whether any liability is appropriate lies beyond the scope of this Note. In any case, ACOG's deference to the AAP's analysis and recommendations concerning circumcision is evidence of professional reliance, suggesting that the AAP should be subject to a duty of care.
This note examines the possibility of bringing a claim against a medical professional society or trade association, such as the AAP, for negligent promulgation of recommendations. Trade Association liability may be predicated on section 324A of the Restatement (Second) of Torts.24 Section 324 A allows for the imposition of liability upon a trade association for gratuitous services, such as a professional standard setting, if the association renders those services negligently.25
Trade association liability for issuing faulty guidelines was also addressed in 1996 by the New Jersey Supreme Court in the case of Snyder v. American Ass'n of Blood Banks.26 The plaintiff, a recipient of blood platelet transfusions performed in 1984 contracted AIDS.27 In order to address the liability of the American Association of Blood Banks (AABB), the court examined the role that the AABB played in the blood banking industry. The court found that "[b]y words and conduct, the AABB invited blood banks, hosptials, and patients to rely on the AABB's recommended procedures."28 The court held that the AABB owed a duty of care to individuals, like Snyder, because it was foreseeable that blood banks would follow the AABB's recommended procedures.29 The court also found that at the time of Snyder's transfusions, ample evidence existed that blood products could transmit AIDs, and therefore, the AABB was negligent.30
This Note will delineate how the Snyder decision and section 324A of the the Restatement can be used to extend tort liability to the AAP. However, much of the case against the AAP depends on a thorough understanding of the research findings available to the AAP and its choices in interpreting them. Therefore Parts I and II of this Note will address at length the medical rationales and issues surrounding circumcision at the time of the 1989 and 1999 AAP reports. Part III examines a number of legal theories by which the AAP could be held liable for its role in promoting circumcision as a viable medical practice. This Note concludes by recommending that the AAP face liability in order to force it to act in a scientifically responsible manner when investigating scientific evidence and issuing guidelines concerning the possible benefits and known harms of circumcision.
1. See The Associated Press, Anesthesia Complications Killed Baby: Three-Week-Old Boy Dies at Local Hospital (visited Nov. 2, 1998) ;<http://www.newsnet5.com/news/stories/news-9801020051123.html> (relating the story of Dustin Evan's death but omitting from the headline any reference to the circumcision complications that necessitated the corrective surgery and thus, anesthesia); James F. McCarty, Reaction to Anesthesia Killed Baby Boy, Report Says (visited Nov. 2, 1998) <http://www.cleveland.com/news/pdnews/metro/crainbow.phtml> (relating the story of Dustin Evans, Jr.'s death, with a similar omission from the headline). Both articles reflect the interviewed physician's decision to assert that a rare reaction to anesthesia was at fault and to discount any possibility that circumcision as a medical practice had any role in the patient's death.
Routine circumcision of infant boys usually takes place during the first two days of life, before the infant is returned home with his mother. The child is immobilize, by being strapped down on a formed plastic board, and a physician proceeds to tear the foreskin from the glans with a flat metal probe inserted between the two attached structures. See ANNE BRIGS, CIRCUMCISION: WHAT EVERY PARENT SHOULD KNOW 24-31 (1985) (displaying the Gomco clamp procedure and it's effects on an infant in a series of photographs); ROSEMARY ROMBERG, CIRCUMCISION: THE PAINFUL DILEMMA 162-69 (1985) (diagramming both procedures and including a series of photographs showing the Gomco clamp method); EDWARD WALLERSTEIN, CIRCUMCISION: AN AMERICAN HEALTH FALLACY 198-210 (1980) (describing both procedures with diagrams). Then either a Plastibell device or a Gomco clamp is used to guide the the amputation of the foreskin. Id.
2. Associated Press, supra note 1.
3. See American Academy of Pediatrics Task Force on Circumcision, Report of the Task Force on Circumcision, 84 PEDIATRICS 388, 390 (1989) [hereinafter AAP 1989] ("The exact incidence of postoperative complications is unknown....").
4. See ANNE BRIGGS, supra note 1, at 7-10 (1985) (discussing historical aspects of circumcision; ROSEMARY ROMBERG, supra note 1, at 97-99 (1985) (same); EDWARD WALLERSTEIN, supra, note 1, at 32-40 (1980) (tracing the development of circumcision in order to control masturbation and "sexual excess," which was thought to cause many diseases, including syphilis and other sexually transmitted diseases, as well as various abnormal mental and physical conditions).
5. See BRIGGS, supra note 1, at 10-11 (citing the beginnings of theories based on a scientific understanding of the origins of disease); ROMBERG, supra note 1, at 108, 114, 235 (same); WALLERSTEIN, supra note 1, at 20, 27, 93 (same).
6. See Douglas Gairdner, Fate of the Foreskin, BRIT. MED. J. 1433, 1437 (December 24, 1949) (concluding the scientific evidence in support of circumcision was "not convincing," and that even if it might someday become convincing, proper hygiene could accomplish the same level of protection without the surgical risks).
8. See WALLERSTEIN, supra note 1, at 28, 214-17 (citing M.P.M. Richards et al., Early Behavioral Differences: Gender or Circumcision, 9 DEVELOPMENTAL PSYCHOBIOLOGY 90 (1976)). As Wallerstein notes, although the British National Health Service has kept very accurate census records for what is now a rare surgery there, Richards et al. had to "quer[y] 18 American teaching hospitals," out of an approximate total of 7000 American hospitals, and construct a "not very reliable" estimate of the overall circumcision rate. Id. at 28.
9. See WALLERSTEIN, supra note 1, at 214-17 (estimating U.S. rates based on various samples of various size, over the course of the last century.)
10. American Academy of Pediatrics, Committee on Fetus and Newborn, Report of the Ad Hoc Task Force on Circumcision, 56 PEDIATRICS 610, 611 (1975) [hereinafter AAP 1975] (concluding that there are no clear medical benefits from neonatal circumcision).
11. See id. at 611 (noting that good hygiene "would offer all the advantages of routine circumcision without the attendant surgical risk").
12. Cf. Hugh C. Thompson, The value of neonatal circumcision: An Unanswered and Perhaps Unanswerable Question, 137 AM. J. OF DISEASES OF CHILDREN 939, 940 (1983) [hereinafter Hugh C. Thompson] relating his experience chairing the 1975 task force and explaining how the ambigious language was purposely adopted to allow individual physicians to continue to perform circumcisions while it was admitted that the value of the surgery was debatable and unknown).
13. AAP 1989, supra note 3 at 388.
14. See id. (introducing these rationales in the second paragraph of the report).
15. See infra Parts I(C)-(D) (noting the findings of the 1989 AAP report on circumcision, STD's and UTI's).
16. See DAVID L. FAIGMAN, DAVID H. KAYE, MICHAEL J. SAKS & JOSEPH SANDERS, MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY, Scientific Method: The Logic of Drawing Inferences from Empirical Evidence § 2-1.1 (1997):To real scientists a finding of fact is only as good as the methods used to find it... Well designed methods permit observations that lead to valid, useful, informative answers to the questions that had been framed by the researcher. . . .Methodology--the logic of research design, measures, and procedures--is the engine that generates knowledge that is scientific. . . . While for lawyers and judges credibility is the key to figuring out which witnesses are speaking truth and which are not, for scientists the way to figure out which one of several contradictory studies is most likely correct is to scrutinize the methodology.(emphasis added).
17. AAP 1989, supra note 3, at 389.
18. See generally, K.J.S. Anand & P.R. Hickey, Pain and Its Effects in the Human Neonatal and Fetus, 317 NEW ENGL J. MED. 1331, 1326 (1987) (reviewing over 200 published research papers concerning the effects of pain on neonates). The authors explained:Apart from excellent studies in animals demonstrating the long-term effects of sensory experiences in the neonatal period, evidence for memories of pain in human infants must, by necessity be anecdotal. . . .[C]urrent knowledge suggests that humane considerations should apply as forcefully to the care of neonates and young nonverbale infants as they do to children and adults is similar painful and stressful situations.Id. at 1326. See also Anthony DeCasper & Melanie J. Spence. Prenatal Maternal Speech Influences Newborns' Perception of Speech Sounds, 9 INFANT BEHAV. & DEV. 133 (1986) ("[P]renatal auditory experience can influence post natal auditory preferences."); Bertil Jacobson et al., Perinatal Origins of Adult Self-destructive Behavior, 76 ACTA PSYCHIATRICA SCANDINAVICA 364, 370 (1987) (finding that among 412 deaths due to suicide, alcoholism, and drug abuse, the chosen method of self-destructive behavior was statistically correlated to a similar type of trauma at birth). The authors explained:The striking resemblance between conditions at birth and eventual adult behavioral disorders makes it necessary to consider the former as possible causative factors...[Salk et al.] suggest that the increasing rates of suicides in the United States are due to a decline in infant mortality rates. . .[because] infants who survived adverse perinatal conditions would be more vulnerable to environmental conditions eliciting suicide. Our results may suggest a somewhat different interpretation. . . .[I]t seems more likely that varying obstetric procedures cause iatrogenic [i.e., medically caused] injuries leading to eventual self-destructive tendencies.Id. at 370; Lee Salk et al., Relationship of Maternal and Perinatal Conditions to Eventual Adolescent Suicide, LANCET, March 16, 1985, at 624, 627 ("The findings of this study provide evidence that perinatal experience influences the risk of suicide in adolescence.").
19. American Academy of Pediatrics Task Force on Circumcision, Circumcision Policy Statement. 103 PEDIATRICS 686, 691 (1999) [hereinafter AAP 1999].
20. See generally infra Parts II(A)-II(H) (delineating the AAP's failures to evaluate and weight evidence according to methodological soundness and its failures to investigate pertinent concerns raised in research findings).
21. See AAP 1999, supra note 19, at 691 ("In the case of circumcision, in which there are potential benefits and risks, yet the procedure is not essential. . . .[i]t is legitimate for parents to take into account cultural, religious and ethnic traditions.").
22. See THOMAS J. RITTER & GEORGE C. DENNISTON, SAY NO TO CIRCUMCISION § 36-1 (2d ed. 1996) (noting that most circumcisions are performed by obstetricians and general practitioners, but it is generally pediatricians who engage in follow-up care of male infants and children).
23. See AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 103 (3d ed. 1992) ( basing the recommendations on the 1989 task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 93-94 (2d ed. 1988) (adopting thte recommendations of the 1975 AAP task force report); AMERICAN ACADEMY OF PEDIATRICS & AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, GUIDELINES FOR PERINATAL CARE 87 (1st ed. 1983) (same); see also Edward Wallerstein, Circumcision: the Uniquely American Medical Enigma, 12 Urologic Clinics of N. Am. 123, 124 (1985) (citing to the jointly authored AAP and ACOG, Guidelines for Perinatal Care, which abbreviates the most recent AAP task force position statements).
24. RESTATEMENT (SECOND) OF TORTS § 324a (1965); see also infra Part III(D) (laying out the text of section 324A of the Restatement).
26. 676 A.2d 1036 (N.J. 1996).
27. Id. at 1038.
28. Id. an 1048.
29. See id. at 1048-49 (stating that foreseeability of harm implies a duty of care.).
30. Id. an 1049, 1055.
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