Table of Contents
III. LEGAL THEORIES FOR TRADE ASSOCIATION LIABILITY
With an understanding of the scientific data available to the 1989 and 1999 AAP task forces on circumcision, analysis can now turn to the legal argument that the AAP breached a duty of care and should now be held liable for that breach. Tort law allows courts to examine the sufficiency of industry-wide practices and standards.210 This applies to the technical field of medicine.211 Some medical organizations have grudgingly acknowledged that a customary practice is not dispositive and can become obsolete.212 Part III(A) will engage in a theoretical examination of medical trade association liability. Parts III(B), III(C), III(D), and III(E) advance legal foundations on which to assess liability against the AAP for its negligent promulgation of obsolete standards to physicians and obsolete advice to parents concerning circumcision. Part III(F) presents evidence upon which a court could ascribe a self-serving motive, beyond mere negligence to the AAP's position on circumcision. Part III(G) discusses how some medical and legal professionals are organizing to oppose the medical practice of circumcision.
A. THEORETICAL EXAMINATIONS OF MEDICAL TRADE ASSOCIATION LIABILITY FOR FAULTY PRACTICE GUIDELINES
Professor Troyen A. Brennan of Brigham and Women's Hospital, notes, "[p]ractice guidelines are standardized specifications for managing particular clinical problems and are intended to improved the outcomes of medical care by increasing adherence to standards of care."213 He continues that "[t]hey are also meant to make medicine more cost-effective by eliminating unnecessary procedures."214 When a hospital, physician, or patient relies on practice guidelines issued by a medical trade association, does the patient harmed by treatment in accordance with the guidelines have a cause of action against the issuer of the guidelines if there was negligence in their creation?
Professor Arnold J. Rosoff formulated three possible theories for medical society liability.215 First is a theory of negligence while analyzing or translating experimental or review data.216 Second is "using data that the developer knew, or should have known, were inaccurate or insufficient."217 His last theory of medical society liability is for failing to "keep its guidelines continually updated and [to] replace obsolete standards as technology and knowledge move forward."218 On this last basis, Rosoff notes that courts appear more likely to enforce revision in response to new knowledge, as opposed to new devices, because no monetary outlay would be necessary.219 the previous parts of this note, Part I (Circumcision and Medical Practice under the 1989 AAP Report) and Part II (The 1999 AAP Report), should have sufficiently raised, if not answered, a question of fact concerning the AAP's failure in each of these three areas.
When a plaintiff suffers from complications due to a circumcision, the AAP could be named as a codefendant along with the hospital and physician. This could be done under the rubric of negligence as applied to the following factors: (1) in establishing the standard of care; (2) for endorsing the uncertain medical benefits of this procedure; and (3) for neglecting to note and explain the known and possible adverse effects. Alternatively, the suit could stem from a lack of informed consent.
However, Brennan envisioned four practical obstacles for plaintiffs seeking to impose liability on medical associations that issue guidelines, such as the AAP. First, courts tend to restrict the duty of care to the treating physician.220 Second, courts might be concerned that imposing liability could dissuade potential guideline issuers from promoting the general health of the public.221 Third, courts might balk at imposing liability for a guideline which is arguably only a "review article" that may have "failed to consider all aspects of a particular question."222 Fourth, if the guideline issuer is a governmental entity, the Federal Tort Claims Act probably precludes liability.223
B. SNYDER V. AMERICAN ASSOCIATION OF BLOOD BANKS
A ground-breaking decision, which assessed tort liability upon a medical trade association for negligently disseminated guidelines, despite the obstacles envisioned by Brennan, was Snyder v. American Ass'n of Blood Banks,224 handed down by the New Jersey Supreme Court in 1996. In August of 1984, the plaintiff, William Snyder, contracted AIDS from a blood transfusion with contaminated blood.225 At the time of the transfusion, there was no test that could detect HIV in donated blood.226 However, a surrogate testing procedure for hepatitis B contamination of blood showed promise for identifying blood donors who had contracted AIDS and potentially could transmit it through their blood.227 Unfortunately, the American Association of Blood Banks (AABB) rejected adoption of the surrogate testing.228
The New Jersey Supreme Court, in Snyder, examined and ruled against each of the four obstacles to liability discussed in Brennan's article when the AABB raised them as defenses. The court framed Brennan's first obstacle, the treating physician defense, as the argument that "the AABB had no immediate connection with either the donor or with Snyder."229 Citing prior New Jersey case law, the court formulated the rule to say:The court noted that, "[b]y words and conduct, the AABB invited blood banks, hospitals, and patients to rely on the AABB's recommended procedures," and thus the absence of a contractual relationship was not dispositive.231. The treating physician defense did not help the AABB escape a duty of care to patients who were treated by hospitals and physicians, because these patients were receiving blood products pursuant to standards promulgated by the AABB. The AABB knew that these standards were widely followed by hospitals and physicians.232The determination of the existence of a duty ultimately is a question of fairness and policy . . . . [I]mportant are the nature of risk posed by the defendant's conduct, the relationship of the parties, and the impact on the public of the imposition of a duty of care . . . . The absence of a contractual or special relationship is not dispostive.230
It is possible to apply the Snyder court's reasoning, concerning the treating physician defense, to the 1992 edition of AAP Guidelines for Perinatal Care, which reflects the 1989 AAP task force report's policy on circumcision, as will as to the 1989 report itself. Contained in each edition of the guidelines is the disclaimer: "The guidelines should not be viewed as a body of rigid rules. They are general and intended to be adapted to many different situations, taking into account the needs and resources particular to the locality, the institution, or type of practice."233 Notwithstanding this disclaimer, if a plaintiff can show direct reliance on these AAP publications, or that hospital administrators and physicians relied on such information provided by the AAP--as the dominant source of analysis and research in the fields--then the AAP should be held liable for negligently crafting recommendations.234
Kimberly J. Todd, in her article in the University of Toledo Law Review, noted that the evolving use, by plaintiff patients and defendant physicians, of practice guidelines as evidence of the standard of care should alert a medical society to the foreseeability of harm if those guidelines prove faulty.235 Todd noted three medical malpractice cases involving individual physicians and hospitals where AAP guidelines were used as either exculpatory or inculpatory evidence of the standard of care.236 Thus, by the AAP having at least constructive knowledge of hospital and physician reliance, the lack of privity of contract between a parent who chooses to circumcise and the AAP can be overcome.
The Snyder opinion also confronted Brennan's second obstacle to extending liability: the possible reluctance of medical organizations to issue guidelines out of fear of future liability.237 As it was stated in the Snyder opinion, extraneous concerns "should not have diverted the AABB from its paramount responsibility to protect the safety of the blood supply.238 It went on to state:
Recognition of that responsibility should have led the AABB to consider more carefully the risks to recipients from the transfusion of infected blood. When balanced against the devastating risks from a disease such as AIDS, the imposition of a duty of care on the AABB does not, in our opinion, offend the public policy favoring open debate on controversial issues.239
Thus, the court concluded that the balancing of various factors inherent in its test concerning liability would not chill open debate in scientific circles, but would instead spur responsible scientific consideration of effects on the public.240
The paramount responsibility of the AAP is promoting the health of children. As the AAP's own mission explains the organization's purpose, it is "to obtain optimal physical, mental, and social health and wellbeing for all infants, children, adolescents and young adults.241 The AAP's mission is not to satisfy the extraneous concerns of parental or physician choices in "esthetics, religion, cultural attitudes, social pressures, and tradition."242 The AAP should inform the public of its failure to find clear medical benefits from this surgery, while fully disclosing the risk of adverse outcomes known to occur. In sum it should discontinue the classification of this surgery as acceptable medical care for infant boys.
Returning to the obstacles Brennan's article raised concerning trade association liability, the Snyder opinion also addressed Brennan's third impediment: that of expressing an opinion on a medical uncertainty.243 The court ruled that "[t]he foreseeability, not the conclusiveness, of harm suffices to give rise to a duty of care."244 The court then found that the evidence supported the factual finding that the AABB knew or should have known that AIDS could be transmitted by blood, and therefore there was a foreseeable risk that a recipient of a blood transfusion could contract the disease from donated blood.245
An analysis of the foreseeability of harm from the AAP's failure to disavow circumcision, therefore requires a focus on the issue of complications. While the sampling methods and operational definitions in existing studies of complication rates are problematic, these methodological problems do not affect the fact that circumcision indisputably poses some risk of harm. The scientific disputes over these studies involve the numerical magnitude of the rates, not the existence of complications. Likewise, in analyzing complications, knowledge of the extent of the types of harm is expanding as researchers discover more about the structural and functional characteristics of the foreskin. Thus, as time passes and knowledge accumulates, it becomes more and more foreseeable to the AAP that circumcision can cause great harm.
Conversely, the existence--not just the magnitude--of the possible benefits from circumcision is in dispute. In examining the benefits, the 1989 AAP's report's crediting of five methodologically unsound studies--which asserted a causal link between lack of circumcision and STD rates--over one methodologically sound study finding no relationship--or possibly an inverse relationship--is negligent scientific analysis.246 A large number of studies on circumcision exist. However, it was and is the AAP's responsibility to base recommendations on methodologically sound material among those studies because that is how science works. The dilemma of scientifically data on circumcision was much simpler for the AAP to resolve, than was the dilemma of evaluating the many unknowns residing in the newly emerging research into whether AIDS was transmitted through blood, which the AABB had to resolve. Therefore a court should more readily impose liability in a potential suit versus the AAP, due to the many years of research and the established scientific methods for evaluating the findings.
The AABB in Snyder also raised Brennan's fourth obstacle, a possible qualified immunity defense.247 The court dismissed this defense, however, noting that the AABB did not contract with a government agency, and that mere mention of AABB standards and inspections by a governmental agency could not create qualified immunity.248 Finally, the court addressed a related defense of charitable immunity. The court found that the AABB could not meet the state statutory requirement of "being organized exclusively for charitable purposes" because the organization promoted the interests of its dues paying members."249
Like the AABB, it is unlikely that the AAP could successfully claim charitable immunity. The AAP has a standing committee on medical liability with responsibilities that include monitoring federal and state legislation concerning medical liability and developing legislative strategies to change current state laws through the development and dissemination of model bills.250 This would appear to promote the business interests of its dues-paying members. In Snyder, Justice Pollock wrote, "[o]ur opinion does not visit liability on the AABB because it was on the wrong side of a scientific debate. . . ."251 He further stated, concerning professional associations involved involved in public health care, "[t]he association's commitment to public health should not immunize them from liability for the negligent discharge of their obligations. Nor should the associations enjoy immunity when they  stubbornly reject persuasive evidence,  unreasonably prolong the debate, and  fail to inform their constituents of threats to the public health."252 The 1989 and 1999 AAP task forces engaged in all three of these practices to some extent. The task forces failed to cite many methodologically sound studies adverse to the practice of circumcision, debated the efficacy of circumcision for decades, and failed to inform parents of the full range of complications. Thus, the AAP should not enjoy charitable immunity. Analogizing from Snyder, the AAP should be held liable for the negligent promulgation of standards for the profession.
C. WEIGAND V. UNIVERSITY HOSPITAL OF NEW YORK UNIVERSITY MEDICAL
Under similar facts, the Supreme Court for New York County, in Weigand v. University Hospital of New York University Medical Center,253 followed the reasoning of Snyder in imposing a duty of care on the AABB.254 However, the plaintiff in Weigand also alleged a failure to advise about alternative sources of blood and a failure to warn of the risk of transmission of HIV through blood.255 The court dismissed these informed consent causes of action against the AABB, and held that informed consent duties concerning the safety of the blood supply resided only with the hospital and physicians.256 In this case, the treating physician defense was successful against causes of action based on informed consent.
It is possible to distinguish the facts surrounding AABB in Weigand from the facts surrounding the AAP in potential circumcision liability cases. The AAP publishes and sells a brochure, specifically for parents, entitled, Circumcision: Pros and Cons.257 The AAP must realize some economic benefit through the sale of this brochure and others, even though the AAP is a non-profit organization.. Additionally, the AAP has knowingly introduced its information directly into the decision making process of parents by making it directly and indirectly available to parents, either online or in doctor's offices. Thus the AAP has created a professional advisory relationship between itself and parents on medical matters and should be held accountable if its recommendations are both formulated in a scientifically irresponsible manner and produce harmful results.
Therefore, under the reasoning of Snyder and Weigand, the AAP should be held liable for failure to obtain informed consent for every infant who undergoes a circumcision and whose parents can show that they would have made a different decision had the AAP provided full and accurate information on complications as well as the benefits of leaving a child intact. The loss of a healthy foreskin is an injury that can produce a damage award.258 A judgment and award for damages is even more appropriate where a child suffers complications, and parents can show that the particular complications were omitted from the AAP materials on which they relied.
D. SECTION 324A OF THE RESTATEMENT OF TORTS
The holding of the Snyder case reflected reasoning contained in section 324A of the Restatement (Second) of Torts. The language of section 324A, Liability to Third Persons for Negligent Performance of Undertaking, is as follows:The first issue under a section 324A analysis is whether a duty of care exists. That the information provided to the other party be "necessary" to protect the third party, presents problems of interpretation.One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.259
Ralph Wellington and Vance Camisa, in an article in the Wayne Law Review, examined decisions involving trade association liability and product safety standards and found that courts could read the necessity requirements liberally.260 Wellington and Camisa cited a California case which found that since a trade association had "specifically" undertaken a duty when the association tested a member company's perlite ores for dangerous toxic substances, . . . it was 'reasonable for [the trade association] to believe that [all of] its members [would] rely on the tests.'"261 These authors also cited a United States district court case applying Pennsylvania law which found contractual permission, rather than obligation, in inspect a workplace as sufficient to impose a duty of care upon a trade association., once it had negligently performed an inspection.262 Although the AAP has no obligation to pediatricians to review the state of knowledge on issues in pediatric care, it has gratuitously undertaken a mission to do so. It would be reasonable for a court to find that AAP information on circumcision may become necessary for the protection of patients when an individual pediatrician is unable or does not throughly investigate all the available medical literature on this surgery and instead relies on an AAP investigation.
Kimberly J. Todd examined the issue of a liberal duty of care and cited an Alabama case that excluded a trade association's lack of control of its industry from the analysis.263 The court found that even though the voluntary standards represented the prevailing opinion of members of the association, the association recognized that the safety of third parties was the reason for making the standards.264. Thus, the association was charged with foreseeability of harm to those third parties once the problem was analyzed and the standards were adopted without reasonable care.265 Indeed, trade associations are already aware of exposure to liability for negligently promulgated standards disseminated to its members. In addressing tort liability, the Association Law Handbook, published by the American Society of Association Executives, warns:Even when it does not seem that the association intended to be responsible for advice given by others or endorsements of the products and services of others, the association could be found to have assumed the responsibility, such as through helping to determine what advice would be given or through testing the products or services endorsed.266
It would be absurd for the AAP to deny that it undertook a duty of care to parents and a duty necessary for the health of infants when it chose to investigate circumcision and disseminated its findings directly to parents as an authoritative professional opinion.
Once a court acknowledges a duty of care, plaintiff must still demonstrate proximate cause in order to prevail. Subsections (a), (b), and (c) of section 324A of the Restatement of Torts set forth the methods for demonstrating causation. For purposes of examining the AAP's conduct, subsection (b) is inapplicable because Comment d and its illustrations appear to require an explicit contract between the principal parties for the performance of a duty owed to the third party.267 Therefore, a potential plantiff, in a case against the AAP, would have to demonstrate proximate cause under subsections (a) or (c).
Subsection (a) requires that the failure in the duty of care increases the risk of harm.268 The AAP's change in position from the 1975 report to the 1989 report could sufficiently show an increase in the risk of harm. Without scientifically adequate bases for the change in recommendation concerning circumcision, the AAP increased the risk by influencing readers to elect an unnecessary surgical risk. Wellington and Camisa found a court which applied the subsection (a) causality test when the court denied summary judgment, "finding that the [trade association] drew its conclusion without reasonable care, thus increasing the risk of harm to the plaintiff through its recommendations."269 Therefore, the AAP's conduct could meet a test for causation of harm under subsection (a) of section 324A.
The last method of establishing causation through the use of section 324A is by demonstrating subsection (c)'s requirement of reliance.270 If a hospital, physician, or patient can prove reliance upon the recommendation of a medical society and can show that this reliance resulted in injury, then the plaintiff could establish causation. Wellington and Camisa note that it may be difficult for an employee to demonstrate reliance because the employee "may not be aware of the trade association whose member supplies products to his employer."271 Likewise, an infant patient and his parents may often be unaware whether a hospital and its physicians relied on analysis supplied by the AAP. Therefore, this should be a question presented to the defendant during recovery.
However, parents may very well base their decision on information obtained directly from the AAP. The AAP, by virtue of the fact that it sells its Circumcision: Pros and Cons brochure in bundles of 100 costing twenty-five to thirty dollars, effectively creates a situation where physicians, hospitals, and individuals can buy the brochures and distribute them directly to parents.272 Thus the third parties--the parents--are made aware of the recommendations of the trade association--the AAP. The AAP has survey data that show that only 74.1% of pediatricians discuss circumcision with parents.273 A sizable percentage of parents may be making a decision on whether to circumcise without direct input from a physician and perhaps based only on the information contained in brochures supplied by the AAP. Oddly, in the AAP's survey, it did not ask pediatricians whether they relied on AAP advice, provided it to parents, or knew whether parents had made their decisions based on AAP materials. By virtue of the fact that the AAP is a "medical" organization made up of pediatricians, parents could be justified in treating these brochures as medical advice.
Although the brochure ostensibly presents the issue of whether to circumcise as a decision for parents to make after consulting with their physicians, certain inaccuracies and omissions appear to be designed to induce parents to choose the surgery without bothering to ask their pediatrician. The first line begins, "Circumcision is one of the oldest known surgical procedures in medicine."274 This statement implies that the practice of this surgery is normal, well-established, and therefore not worthy of concern. This statement also inaccurately implies that Muslims and Jews practiced circumcision in antiquity for medical reasons. Both implications are false.275
Next, while the AAP admits circumcision to be "far less common worldwide,"276 the AAP fails to mention that only a minority of males worldwide are circumcised.277 The brochure warns parents that if they choose not to circumcise they may need to explain their choice to their son later.278 However, considering the growing number of medical practitioners and parents choosing and advocating against this surgery, the same warning to parents that they will have to explain to their sons why they did not choose to circumcise.279 The AAP's warning to parents that they will have to explain to their sons why they did not choose to circumcise is an inappropriate scare tactic designed to induce parents to make a decision without learning of the considerable medical debate surrounding circumcision.
Under the section of the brochure concerning reasons to circumcise, "research studies" in support of the practice are mentioned.280 However, in the section dealing with reasons not to circumcise, the AAP neglects to mention that there are research studies that do not support and even warn against the procedure, for physical, mental health, and ethical reasons.281 By its failure to list further sources of information (pro and con) about this procedure, the brochure gives the impression that the AAP position is representative of the views of all medical professionals, which is not the case.282 For all of these reasons, the brochure invites parents to rely on it alone as the only necessary information they need to make an informed choice whether to circumcise their sons or not.
Therefore, under section 324A of the Restatement (Second) of Torts, the AAP, gratuitously or for consideration, renders research services directly to parents and physicians necessary for the protection of infant boys. The AAP's failure to follow fundamental scientific procedure--placing experimental methodology first in evaluating the significance of results, as well as taking care to find all pertinent material--constitutes a failure to exercise reasonable care. This failure to exercise reasonable care results in an increase in the risk of harm to infant boys, because infants can suffer harm from circumcision due to the reliance parents upon the AAP.
E. N.N.V. V. AMERICAN ASSOCIATION OF BLOOD BANKS
Recently, a California Court of Appeal, on facts similar to those in the Snyder case, chose not to assess liability on the AABB.283 In N.N.V. v. American Ass'n of Blood Banks, ("N.N.V."), an infant born on September 23, 1984 underwent surgery to correct a congenital heart defect two and a half months later.284 It was afterwards discovered that the blood used for N.N.V.'s surgery was HIV positive.285 The appellate court upheld summary judgment for the AABB, holding that "the AABB owed no duty to N.N.V. to adopt particular standards."286 It further noted that even if a duty of care existed, the plaintiff had failed to raise any triable issues of fact showing that the AABB acted unreasonably in rejecting recommendations given the scientific and medical knowledge available at the time."287 In examining the duty of care, the court used the rule that in a particular case, "public policy and other considerations may lead a court to conclude no duty of [of reasonable care] toward the plaintiff existed."288 These other considerations consisted of:Considerations 1 and 3 through 6 are pertinent for examining the argument that the AAP has, and has breached, a duty of care with regard to its recommendations for circumcision. This part of this Note will demonstrate that even assuming N.N.V. was correctly decided and Snyder incorrectly decided concerning the existence and performance of a duty of care by the AABB to recipients of blood products in the early 1980s, the facts surrounding the AAP and circumcision are distinguishable.(1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of he connection between the defendants conduct and the injury suffered, (4) the moral blame attached to the defendant's conduct and the injury suffered, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care . . . (7) and the availability, cost, and prevalence of insurance for the risk involved.289
The N.N.V. court noted that while it may have been foreseeable to the AABB that AIDS could be transmitted through blood and blood banks would follow its recommendations, the claim against the AABB necessitated a showing that the AABB was negligent in not recommending three procedures to screen the blood supply.290 These procedures were direct questioning of blood donors' sexual preference, directed donations for patient-selected donors, and surrogate testing of blood for the presence of hepatitis B antibodies.291 The court quickly disposed of the claims that the AABB should have recommended direct questioning and directed donations, noting the lack of any studies in 1984 which supported either of these methods of screening the blood supply.292
However, as the Snyder and N.N.V. opinions outlined in their reviews of the research history, there was growing evidence throughout 1983 and 1984 that AIDS was transmitted through blood products and some blood banks had begun surrogate testing.293 The Snyder opinion also focused on recommendations by the AIDS Task Force of the Centers for Disease Control at meetings with the AABB that surrogate testing be adopted, and on AABB internal memos essentially admitting that that AIDS transmitted during blood transfusions.294 Although the Snyder court found the evidence sufficient to make the likelihood of harm foreseeable to the AABB, the N.N.V. court found the evidence unclear as to the foreseeability of harm.295
With circumcision and the AAP, the foreseeability of harm to infants is known, because complications do occur. More importantly however, both the 1989 and 1999 AAP task forces chose to ignore and/or to downplay evidence of the loss of specialized tissue in the foreskin and the occurrence and evidence of long-term behavior effects. Many studies were available to the AAP at the time of each report, and a potential plaintiff could raise a triable issue of fact as to why the AAP either ignored or downplayed the findings.
The N.N.V. court ruled that the plaintiff had presented no evidence that either direct questioning of the donor, or surrogate testing of his blood, would have presented the donor from donating blood used for N.N.V. surgery.296 Nor did the plaintiff present evidence that all of the family or friends who might have been potential directed donors were free from HIV.297 Thus the court ruled that N.N.V. had failed to establish the third requirement of the test for imposing a duty of care, that of a close connection between the AABB's refusal to adopt methods suggested by the CDC's AIDS Task Force and N.N.V.'s contraction of AIDS.298
In a potential case against the AAP for negligence in its recommendations concerning circumcision, unlike with blood donation, there would be no range of choices. The choice involved would be either to circumcise or not to circumcise. This would approximate a choice to transfuse or not to transfuse. A proper analogy, from the identity of the blood donor in the N.N.V. transfusion case, to a potential case involving circumcision, would be to a choice among devices for accomplishing circumcision. Nether the 1989 nor 1999 AAP task forces have expressed much concern about meaningful differences among these devices.299 Thus the plaintiff would merely have to show that the parents would have avoided the harm by choosing not to circumcise.
As to the fourth requirement, that of moral blameworthiness, the N.N.V. court noted that AIDS was a very new issue under scientific investigation, and that N.N.V. did not establish "what 'known medical science' the AABB was ignoring."300 Thus, the court ruled that no moral blame should be placed on the AABB.301 With circumcision and the AAP, however, the controversy is not new and there is plenty of known medical science which the AAP apparently did ignore. Thus, a court could easily attach moral blame to the AAP's actions.
The court in N.N.V. dismissed the fifth and the sixth considerations, the policy of preventing future harm and the burden on the defendant, with the argument that the AABB could not be penalized for choosing he wrong side in a freshly emerging scientific debate.302 The court further lamented the situation where the standard of care should ever be "evaluated by the ad hoc judgments of a lay judge or lay jury or lay jurors aided by hindsight."303 However, the court failed to recognize that the plaintiff was probably not seeking a determination that the AABB chose the wrong side in a scientific debate, but that the AABB allowed the unscientific motivations of cost and supply of blood to inflame its choice.304 As the United States Supreme Court opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. observed concerning the admissibility of scientific evidence, "[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."305 Additionally, contrary to the rule cited by the N.N.V. court, there is a strong legal tradition of allowing expert testimony to challenge the prevailing standard of care.306 It is proper for a fact finder to hear expert testimony on the scientific method, view the available scientific evidence, and then to decide whether the standard-setting defendant, in its establishment of the standard of care, acted with scientific or unscientific motivations. The N.N.V. court recognized this principle in its mooted examination of the breach of a standard of care.307 The court would have held the AABB in breach if it had "failed to use the knowledge, skill, and care ordinarily exercised by members of the relevant community."308
In a potential case against the AAP for its position on circumcision, the claim would not be based upon the assertion that the AAP made the wrong choice is a scientific debate. The claim would be that in establishing a standard of care and in issuing guidelines--the AAP failed to follow well established principles of scientific analysis. The AAP glossed over methodological problems and flaws in the UTI and STD research upon which it relied. It ignored research findings concerning complications, STDs, and cancer that contradicted its positions, instead of explaining why these findings should not receive credit. It misstated findings on complication rates such that they would support its position. Additionally, the AAP failed to pursue trails of evidence about behavioral effects of circumcision, physical characteristics of the foreskin, and possible monetary and vindictive motivations that may have influenced the proponents of circumcision upon whom the AAP relied.309
The opinion of Justice Amos in N.N.V., while concuring in not finding the AABB in breach of a duty of care, dissented from the majority,s refusal to hold the AABB to a standard of care.310 He observed that under the majority's refusal to apply a standard of care upon the AABB, the hypothetical result could occur whereby the AABB would not have been required to recommend the ELISA test for the presence of the AIDS virus in blood once it had become available.311 Justice Amos also noted that, without the imposition of a duty of care upon the AABB, monetary "considerations of the members of the AABB" would likely influence "the decision making process and may pose an obstacle to change or reconsideration of standards."312 Thus, one of the three judges on the appellate panel found it proper to impose a duty of care on the standard setting and guideline issuing activities of a medical trade association. In a potential case against the AAP, a court should similarly impose a duty of care upon the AAP as a guideline issuing trade association. Under the considerations used in the N.N.V. case, it should also find the AAP in breach of that duty of care for failing to analyze circumcision is a scientifically proper manner.
F. POSSIBILITY THAT EVIDENCE MIGHT SUPPORT FRAUDULENT
MISREPRESENTATION RATHER THAN NEGLIGENCE
This Note has argued that the 1989 and 1999 AAP's task forces's disregard for scientific protocol in analyzing the available data, led to negligent performance of a duty of care. This section, however, will analyze a potential intentional and fraudulent misrepresentation claim against the AAP, based upon the work of the 1989 task forces on circumcision. In 1983 Hugh C. Thompson, the chair the the 1975 task force, authored an editorial relating the deep and emotional division within the 1975 AAP task force.313 The forthcoming admission by the chair of the 1975 Task Force that there were deep divisions of opinion due to the information available at the time displayed an appropriate attitude toward the publishing of scientific findings. When the available information did not support a conclusion, it was appropriate to say that no conclusion was possible.314
In contrast, the bias of the chair of the 1989 task force, Edgar J. Schoen, was revealed in a 1987 letter to the editor of a medical journal.315 The letter contained a sarcastic poem that also appeared to impart veiled personal attacks on opponents of routine neonatal circumcision.316 This bias helps to explain all the misleading statements that appeared to induce faulty inferences in the reader.317
Also pertinent to an evaluation of the conduct of the 1989 AAP task force, is a law review article examining the role of medical guidelines which observed, "[p]hysician specialists may realize economic gains when particular guidelines are promulgated."318 The author, John D. Ayres, also warned, "[p]atient selection bias and institutional and personal financial gains introduce 'subtle biases into the conduct, analysis, or reporting of research results that may escape even careful peer review.'"319 Consequently, the author recommended, "[c]omplete disclosure of economic interests is parameter development must be included within the body of the guideline. Medical specialty societies, insurers, physicians, or any party that participates in guideline formation should acknowledge any economic self-interests inherent in the procedures that might be incorporated into a guideline."320
There is evidence--on which to build a case--that the AAP, as a representative of pediatricians who collectively stand to gain, had a monetary stake in promoting the continuation of circumcision. A 1987 article, quoted Dr. Thomas Wiswell--the author of the late 1980s articles reporting lower UTI rates among circumcised baby boys as saying, "I have some good friends who are obstetricians outside the military, and they look at a foreskin and almost see a $125 price tag on it.. Each one is that much money. Heck, if you do 10 a week, that's over $1,000 a week, and they don't take that much time."321 Both obstetricians and pediatricians perform circumcisions and therefore stood to gain economically from the continued practice.
A reasonably prudent medical society, with the health interests of infant boys as a main concern, should have taken notice of this statement by Dr. Wiswell. It should then have been hesitant to base its change of position on his research especially once it recognized methodological problems in the research. Circumcision, a medical procedure without any evidence of a benefit to health, should have been classified as experimental. Once proponents of the procedure displayed an acute awareness of monetary reward, the AAP could have further downgraded circumcision to a purely cosmetic--and possibly harmful--procedure, with all the ethical permutations this would have toward parental consent.322
The AAP's choice in ignoring the obvious and vociferous bias of Dr. Schoen, and further choice in placing him as chair of the 1989 task force, is evidence that the AAP was more interested in buttressing the continued practice of circumcision than in objectively evaluating scientific evidence. Then, to base a change in policy on the "new evidence" of Dr. Wiswell, when he seemed well aware of an industry monetary incentive to promote circumcision, and when the AAP task force had recognized methodological problems with his UTI studies, reinforces suspicion that the AAP let non-medical motives determine its recommendations. Finally, for the AAP to not disclose the monetary incentives that existed to promote the procedure is irresponsible and as is being argued here, possibly deceptive.
G. PROFESSIONAL ORGANIZATIONS OPPOSING CIRCUMCISION
Some doctors and nurses have begun to organize and voice their opposition to the legitimacy of circumcision as a medical practice.323 Additionally, there is now an organization of lawyers committed to challenging the legality of circumcision.324 These professionals have challenged all infant circumcisions, medical or otherwise, on the basis of constitutional, criminal, and international human rights laws, and have offered their services to plaintiffs in civil cases against individual physicians and hospitals.325 This Note has proposed, however, that it has specifically been the AAP that has violated a duty of care by decades of erroneously and falsely touting medical benefits and lack of risks involved with circumcision.
It should also be noted that a jury can award meaningful damages for the removal of an infant's foreskin without the consent of the parents. David J. Llewellyn, an Atlanta attorney, wrote an article relating the facts and outcome of this 1992 lawsuit brought against the Jackson Hospital and Clinic in Montgomery, Alabama.326. Following a trial for the performance of the circumcision without the consent of the mother, a jury awarded $10,000 in past damages and $55,000 in future damages.327 Obviously, this jury was persuaded by the expert testimony presented that the pain suffered was compensable, and that the foreskin had value as a part of the child's body in his present and future life. This is helpful for any future action against the AAP involving a claim of lack of informed consent. Parents that can show that they would not have chosen to circumcise their son, had they known the full extent of complications and the functional value of the foreskin, should have a valid informed consent claim if they or their physician relied upon AAP materials.
210. The principle was best stated by Justice Learned Hand:The T. J. Hooper, 60 F 2.d 737, 740 (2d Cir. 1932) (emphasis added). There may also come a time when an entire industry has lagged in not abandoning a practice or device.There are, no doubt cases where courts seem to make the general practice of the calling the standard of proper diligence, we have indeed given currency to the notion ourselves. Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
211. For example, see Nowatske v. Osterloh, 543 N. W. 2d 265 (Wis. 1996), which explained the standard of care as follows:Id. at 272.The standard of care applicable to physicians in this state can not be conclusively established either by a reflection of what the majority of practitioners do or by a sum of the customs which those practitioners follow. It must instead be established by a determination of what is reasonable to expect of a professional given the state of medical knowledge at the time of the treatment in issue. . . . In most situations physicians like other professionals, will revise their customary practices so that the care they offer reflects a due regard for advances in the profession. An emphasis on reasonable rather than customary practices, however, insures that custom will not shelter physicians who fail to adopt advances in their respective fields and who consequently fail to conform to the standard of care which both the profession and its patients have a right to expect.
212. See id. (quoting the Amicus Curiae brief for the State Medical Society of Wisconsin: "Plaintiffs can always, if appropriate, present evidence regarding the 'state of medical science' to show that a professional custom is obsolete or unreasonable.").
213. Troyen A. Brennan, Practice Guidelines and Malpractice Litigation: Collision or Cohesion?, 16 J. HEALTH POL., POL'Y & L. 67,67 (1991).
215. See Arnold J. Rosoff, The Role of Clinical Practice Guidelines in Health Care Reform, 5 HEALTH MATRIX 369, 392 (1995) (proposing theories for possible liability).
216. See id at 392 (listing this as an obvious theory of liability).
219. See id. at 392 n.66 (inferring this after analyzing the reasoning in cases such as Washington v. Washington Hosp. Center, 597 A.2d 177 (D.C. 1990), (holding a hospital and physicians liable for not following new treatment studies that contravened conventional wisdom)).
220. See Brennan, supra note 213, at 78 (expressing it as "doubtful that courts would find individual physicians paralyzed or rendered powerless by guidelines issued by medical or research institutions"). However, this argument does not address a physician's possibly reasonable reliance on the analysis of his professional organization.
221. See id. at 79 (noting that "[e]xtending the duty to care to those third parties would chill their interest in an activity that benefits the general welfare," and that "product standard setting groups, can have duties to care," but, "there is usually some direct relationship between the third party and the product, as for instance when the third party inspects a specific product which later causes injury").
223. See id. at 80 (citing guidelines issued by the National Institute of Health as an example).
224. 676 A. 2d. 1036 (N. J. 1996).
225. See id. at 1038 (providing the background which showed an overwhelming likelihood that Mr. Snyder contracted HIV from contaminated blood provided during his surgery).
226. See id. at 1039-48 (tracing the development of the theory that AIDS was spread by exposure to contaminated blood and the development of the rationales for the use of surrogate testing).
227. See id. at 1039-48 (tracing the development of the theory that AIDS was spread by exposure to contaminated blood and the development of the rationales for the use of surrogate testing).
228. See Snyder, 676 A.2d at 1048 (relating how the AABB rejected use of the surrogate test to screen blood contending that it would result in rejection of too many healthy blood donors and cost too much). Basically, the AABB rejected the surrogate test on a hasty and not fully informed cost-benefit analysis, even though studies had been published in the medical literature essentially proving that AIDS could be transmitted through donated blood. See id. at 1049 (stating that the AABB knew of the risk of AIDS).
229. Id. at 1048, see also Brennan, supra note 213, at 78 (discussing the possible use of the treating physician defense).
230. Snyder, 676 A.2d at 1048 (citations omitted).
231. See id. at 1048 (reasoning that fairness and policy allow liability because the "AABB [had] sought and cultivated . . . responsibility for the safety of blood and blood products," which induced treating physicians to rely on AABB standards).
232. See id. at 1041. (describing the overwhelming adherence to AABB standards by organizations supplying blood and blood products).
233. AAP GUIDELINES 1992, supra note 134, at ii; see also AAP GUIDELINES 1988, supra note 134, at ii (using the same language disclaimer); AAP GUIDELINES 1983, supra note 134, at ii (using the same language disclaimer).
234. Cf. Kimberly J. Todd, Snyder v. American Association of Blood Banks: Expansion of Trade Association Liability--Does it Reach Medical Societies? 29 U. TOL. L. REV. 149, 174 (1997) (arguing that Snyder allows a court to go beyond the treating physician's liability if the treatment decision was based on a standard of care set by the dominant source of information in that industry).
235. See id. at 173 & n.173 (comparing the foreseeability language in Snyder to the fact that patients and physicians rely on published guidelines to establish the standard of care). Further she asserted that:Id. (citations omitted).The courts' decision to practice parameters indicates a belief that the medical societies which develop the parameters have a high level of influence over their members. . . . [A]ny medical society places itself in a position in which others rely heavily on its standards (to ensure the safety of their treatment ) should have a duty to act with due care when producing those standards.
236. See id. Todd cites Birchfield v. Texarkana Mem'l Hosp, 747 S.W. 2d 361, 364 (Tex. 1987) and Boyd v. Louisiana Med. Mut. Ins. Co., 593 So.2d 427, 429-30 (La. Ct. App. 1991) for the use of AAP practice parameters and reports in an inculpatory manner and cites Parker v. Southwest La. Hosp. Ass'n, 540 So.2d 1270, 1274 (La. Ct. App. 1989) for the use of AAP practice parameters in an exculpatory manner.
237. See Brennan, supra note 213, at 79 (expressing the concern that liability "would chill [the medical associations'] interest in an activity that benefits the general welfare."). However, such activities can hardly benefit the general welfare if they are not conducted under the usual scientific protocols for evaluating data.
238. Snyder, 676 A.2d at 1050.
240. See Todd, supra, note 234, at 175 (noting that the rule adopted in Snyder weighs the probability and importance of risk of injury against the policy of facilitating scientific debate).
241. American Academy of Pediatrics Fact Sheet (visited Jan. 24, 2000) <http://www.aap.org/visit/facts/htm>.
242. AAP 1989, supra note 3, at 390 (choosing to facititate parental concerns); see also AAP 1999, supra note 19, at 691 (same). Over the past century, the medical profession created this parental tradition, largely under discredited theories of causation. The AAP, in disregard of scientific method, is now maintaining that parental cultural tradition through failing to expose the flimsiness of circumcision's benefits and by placing this tradition above the heath interests of infant boys.
243. See Brennan, supra note 213, at 79 (relating the concern for penalizing a medical society for choosing the wrong stance on a medical uncertainty). However, the efficacy of routine circumcision is only an uncertainty because the profession as a whole, and the AAP in particular, has failed to responsibly and thoroughly investigate after more than a century of performing it.
244. Snyder, 676 A. 2d at 1049.
246. See supra notes 83-86 and accompanying text (emphasizing the fact that each study sued by the 1989 AAP report to support the hypothesis that circumcision conferred a benefit in preventing STDs was flawed); cf. FAIGMAN ET AL., supra note 16 at 48 (noting the fundamental scientific principle that for any scientific analysis of contradictory studies, methodology is central to evaluating the worth of the findings of each study).
247. Compare Snyder, 676 A.2d at 1051-54. (relating the defendant's assertions of qualified immunity based on the AABB's relationships with the federal Food and Drug Administration and the New Jersey Department of Health), with Brennan, supra note 213, at 80 (discussing immunity defenses).
248. See Snyder, 676 A.2d at 1052-54 (implying that privity of contract between the AABB and a government agency would be necessary for immunity).
249. Id. at 1054.
250. See American Academy of Pediatrics, Committee on Medical Liability (visited Jan. 27, 1999) <http://www.aap.org/visit/coml.htm> (outlining the duties of this committee).
251. Snyder, 676 A.2d at 1055
252. Id. (emphasis added).
253. 639 N.Y.S.2d 395 (N.Y. Sup. Ct. 1997).
254. See Weigand v. Univ. Hosp. of New York Univ. Med. Ctr. 659 N.Y.S.2d 395, 400 (N.Y. Sup. Ct. 1997) (citing the reasoning in Snyder as persuasive in imposing a duty of care toward a 1983 recipient of contaminated blood on the AABB).
255. See id. at 401 addressing the allegations of the plaintiff).
256. See id. (dismissing the informed consent causes of action by finding that the facts did not meet the requirement of "a special relationship between the parties, frequently involving an existing or potential economic benefit to the defendant").
257. AMERICAN ACADEMY OF PEDIATRICS, BROCHURE NO. HE0175, CIRCUMCISION: PROS AND CONS (1995) [hereinafter AAP 1995 brochure].
258. See Llewellyn, supra note 74, at 13 (relating an award of $65,000 for the loss of the foreskin without informed consent).
259. RESTATEMENT (SECOND) OF TORTS § 324A (1965)
260. Ralph G. Wellington & Vance G. Camisa, The Trade Association and Produce Safty Standards: Of Good Samaritans and Liability, 35 WAYNE L. REV 37, 39-45 (1988) (citing cases which did not meet absolute necessity for the imposition of a duty of care.).
261. See id. at 39-40 (quoting Martinez v. Perlite Inst., 120 Cal. Rptr. 120, 125 (1975)).
262. See id. at 43-43 (citing Clark v. Employers Mut., 297 F. Supp. 286, 289 (E.D. Pa 1969)).
263. See Todd, supra note 234, at 164. She notes:Id. (quoting King v. Nat'l Spa and Pool Inst., Inc., 570 So.2d 612 (Ala. 1990) (other citations omitted)).[T]he fact that the standards promulgated by a trade association are based on a voluntary consensus of its members, does not, as a matter of law, absolve the trade association of a duty to recognize reasonable care when it undertakes to promulgate standards for the "needs of the consumer." The [trade association's] standards explicitly mentioned that they were for the "needs of the consumer" and that safety was one of the primary considerations for which they were formulated. This, the court reasoned, made it foreseeable to [the trade association] that injury to consumers could result from its failure to act with reasonable care, thus creating a duty.
264. See Todd, supra note 234, at 164 (citing the King court's finding of a duty of care).
265. See id. (citing the King court's finding of a duty of care).
266. JERALD A. JACOBS, ASSOCIATION LAW HANDBOOK 157 (3d ed. 1996).
267. See RESTATEMENT (SECOND) OF TORTS § 324A cmt. D(1965)(stating that "a managing agent who . . . agrees with [the owner to maintain a building] . . .") Illustrations 2 and 3 to Comment d both involve employer-employee contracts.
268. See id. § 324A(a) (noting that the failure to exercise care must increase the risk of harm).
269. See Wellington & Camisa, supra note 260, at 48 (1988) (quoting Kohr v. Johns-Manfield Corp., 534 F. Supp. 256, 258 (E.D. Pa. 1982)).
270. See RESTATEMENT (SECOND) OF TORTS, §324A(c) (noting that reliance can satisfy causality).
271. Wellington & Camisa, supra note 260, at 57.
272. See AAP 1995 brochure, supra note 257 (listing the purchasing terms for the brochure).
273. See American Academy of Pediatrics, Periodic Survey #37: Attitudes and Experiences Regarding Counseling on Circumcision (visited Jan. 23. 2000) <http://www.aap.org/research/ps37exs1.htm> outlining the results of a recent survey of physician attitudes and experiences, without examining the influence of AAP material either supplied by physicians to parents or obtained by parents directly).
274. AAP brochure, supra, note 257.
275. See THOMAS J. RITTER, M.D., SAY NO TO CIRCUMCISION 25-1 (1992) (noting that circumcision is performed in Judaism strictly for religious reasons); see also supra Parts I(E)-(F), and II(D)-(F) (delineating risks of circumcision and why parents must carefully consider their choice).
276. AAP 1995 brochure, supra, note 257.
277. See RITTER, supra note 275, at 16-1 (comparing the number of countries that do and do not perform routine "medical" circumcisions).
278. AAP 1995 brochure, supra note 257.
279. Cf. RITTER, supra note 275, at 21-1 (citing a National Center for Health Statistics report that the 1990 U.S. rate of circumcision was dropping to 59%).
280. AAP 1995 brochure, supra note 257.
281. See supra Parts I(E)-(G) (citing to material explaining circumcision's potential for harm versus the alternative of not circumcising and its lack of proven risk).
282. See Doctors Opposing Circumcision (visited Jan. 29, 1999) <http://faculty.washington.edu/gcd/DOC/> (delineating the views of the organization); Nurses For the Rights of the Child (visited Jan. 27, 1999) <http://nurses.cirp.org/#Picture> (outlining the activities of this organization); Betty Katz Sperlich et al., R. N. Conscientious Objectors to Infant Circumcision: A Model for Nurse Empowerment (visited Jan. 27. 1999) <http://nurses.cirp.org/R.N._Conscientious_Objecto.html> (relating the fact that in 1995 the Registered Nurses Association of British Columbia passed a resolution condemning routine circumcision and that, through mediation, about half (24) of the Maternal-Child nursing staff at St. Vincent's Hospital in Santa Fe, New Mexico, won conscientious objector status to routine circumcision from the hospital, thus exempting them from being present during a circumcision); see also National Organization of Circumcision Information Resource Centers (visited Jan. 27, 1999) <http://nocirc.org> (providing the organization's mission statement and information about circumcision).
283. Compare N.N.V. v. Am. Ass'n of Blood Banks, 89 Cal Rptr. 2d 885, 892-93 (Cal. App. 4th 1999) (relating the facts surrounding N.N.V.'s surgery and use of HIV contaminated donor blood), with Snyder v. Am. Ass'n of Blood Banks, 676 A.2d 1036, 1038 (relating the facts surrounding Snyder's surgery and use of HIV contaminated donor blood).
284. See N.N.V., 89 Cal Rptr. 2d at 892-93 (relating the facts surrounding the surgery).
285. Id. at 893.
286. Id. at 909.
287. Id. at 910-11.
288. Id. at 896.
289. N.N.V., 89 Cal. Rptr. 2d at 896.
290. See id. at 898 (recasting the factual basis for the plaintiff's claim).
291. See id. (listing the procedures and tests which the plaintiff claimed the AABB should have used to screen the blood supply).
292. See id. at 899 (finding no studies to support either screening method).
293. See Snyder v. Am. Ass'n of Blood Banks, 676 A.2d 1036, 1041-48 (N.J. 1996) (detailing at length the history of the scientific research and debate over AIDS, blood products, and surrogate testing up through August 23, 1984); see also N.N.V., 89 Cal. Rptr. 2d at 890-92 (relating a similar history through December 6, 1984).
294. See Snyder, 676 A. 2d at 1044-46 (quoting the testimony of Dr. Donald Francis of the CDC AIDS Task Force). Dr. Francis perceived the AABB's resistance to surrogate testing, and to the acknowledgement of blood a medium for AIDS, as "ridiculous" and "alarming". Id. at 1045. The court's opinion also took note of internal AABB memos authored by Dr. Joseph Bove, chairman of the AABB Committee on Transfusion Transmitted Disease, one of which warned that "additional transfusion related cases will surface." Id. at 1046.
295. Compare id. at 1049 (ruling that "ample evidence supported the conclusion that blood transmitted the AIDS virus") with N.N.V. v. Am Ass'n of Blood Banks, 89 Cal. Rpter. 2d 885, 910 (Cal App. 4th 1999) (finding that conflicting evidence did not make it reasonably foreseeable to the AABB that surrogate testing of blood would have lessened the transmission of AIDS).
296. See N.N.V., 89 Cal. Rptr. 2d at 900-01 (ruling that N.N.V. had only engaged in the assumption, without evidence, that these procedures would have shielded him from AIDS).
299.See AAP 1999, supra note 19, at 687-88 (noting that the Gomco clamp, the Mogen clamp, and the Plastibell device are all commonly used, and not mentioning any concern over differences in these devices, only concern that the persons using each be skilled); AAP 1989, supra note 3, 389 ("Clamp techniques (e.g., Gomco or Mogen clamps) or a Plastibell give equally good results."); id. (citing also to Gee & Ansell, supra note 98, at 827, for a lack of meaningful difference in complication rates between the two devices); see also RITTER, supra note 275, at § 2-4 (focusing on the harm of circumcision regardless of the device used).
300. N.N.V., 89 Cal. Rptr. 2d at 901.
301. See id. at 902 ("We conclude the AABB conduct in recommending against direct questioning, directed donations and surrogate testing warrants no moral blame.").
302. See id. (finding the mere existence of a debate among scientists, especially when the defendant represented the majority opinion at the time, sufficient to negate an objective of preventing future harm); id. at 903 (finding the burden of litigation too onerous to place upon the AABB for making the wrong decision in a debate among scientists).
303. Id. at 904 (quoting Osborn v. Irwin Mem. Blood Bank, 7 Cal. Rptr. 2d 101, 125 (1992)).
304. See N.N.V., 89 Cal. Rptr. 2d at 901 (quoting the brief of appelant N.N.V.: "Rather than institute measures to protect patients, . . . the AABB elected to pursue a course of action to merely diminish the perception of the danger of AIDS, and reduce questioning about the safety of the blood supply.").
305. 509 U.S. 579, 595 n.11 (1993) (finding FED. R. EVID. 702 applicable to established as well as novel scientific techniques).
306. See N.N.V., 89 Cal. Rptr. 2d at 903 ("[A]n expert is not permitted to 'second guess an entire profession' as to what the standard of care should have been.") But see supra notes 210-12 and accompanying text (allowing challenges to the standard of care of an entire profession).
307. See N.N.V., 89 Cal. Rptr. 2d at 909 (choosing to address the issue of a breach of the standard of care only after already ruling that the AABB owed no duty of care to N.N.V.).
308. Id. at 909-10.
309. See infra Part III(F) (presenting evidence that motivation other than the health of infant boys have influenced the AAP circumcision task forces and pro-circumcision researchers).
310. See N.N.V., 89 Cal Rptr. 2d at 917 (Amos, J., concurring and dissenting) (concurring that the AABB did not breach a duty of care, but dissenting with the majority's finding that no duty of care should apply to the AABB in this case).
311. See id. at 917 (Amos, J., concurring and dissenting) (extrapolating a hypothetical result under the majority's refusal to impose a duty of care).
313. See Hugh C. Thompson, supra, note 12, at 940 (exposing the internal conflict that occurred on the committee). Thompson wrote:Id.The ad hoc committee was sharply divided in its opinions, and the resulting statement was compromise that stated there was "no absolute medical indication for routine circumcision of the newborn." The words absolute and routine were meant to convey a different impression from the conclusion of the  AAP Committee on the Fetus and the Newborn.
314. See AAP 1975 report, supra note 10, at 611 (1975) ("There is no absolute medical indication for routine circumcision of the newborn. . . . Therefore, circumcision of the male neonate cannot be considered an essential component of adequate total medical care.").
315. Dr. Schoen crafted this poem as follows:Edgar J. Schoen, Letter to the Editor, 141 AM. J. DISEASES CHILDREN 128 (1987).
Ode to the Circumcised Male
We have a new topic to heat up our passions -- the foreskin is currently top of the fashions.
If you're the new son of a Berkeley professor, your genital skin will be greater, not lesser.
For if you've been circ'ed or are Moslem or Jewish, you're out side the mode; you are old-ish not new-ish.
You have broken the latest society rules; you may never get into the finest of schools.
Noncircumcised males are the "genital chic"-- if your foreskin is gone, you are now up the creek.
It's a great work of art like the statue of Venus, if you're wearing a hat on the head of your penis.
When you gaze through a looking glass, don't rue that you suffered a rape of your phallus.
Just hope that one day you can say with a smile that your glans ain't passe; it will rise up in style. Id.
316. See id. (using labels and terms such as "Berkeley professor," "society rules," "genital chic"). Dr. Schoen seems ignorant of the fact that, considering the lack of a solid medical foundation for performing circumcision, if anything could be termed a fashion, it would be the alteration of infant male genitalia to suit the cultural (i.e. cosmetic) tastes of many American parents. He seems further ignorant of the fact that if there is now a cultural preference for circumcision among parents in the United States, it is largely the result of decades of erroneous assurances of medical justifications disseminated to the public by the medical profession. This is an error that his poem and his chairmanship of the 1989 task force have perpetuated.
317. See generally supra Part I (explaining how the 1989 AAP task force omitted findings and used sentence structure in an apparent effort to obscure results that questioned the utility of circumcision).
318. John D. Ayres, The Use and Abuse of Medical Practice Guidelines, 15 J. LEGAL MED. 421, 436 (1994).
319. Id. at 442.
320. Id. at 438.
321. Betsy A. Lehman, The Age-Old Question of Circumcision, BOSTON GLOBE, June 22, 1987, at 41 (quoting Dr. Wiswell).
322. See supra notes 201-06 and accompanying text (discussing ethical considerations in general and as applied to female genital mutilation).
323. See supra note 281 and accompanying text.
324. See Attorneys for the Rights of the Child (visited Jan. 27, 1999) <http://www.noharmm.org/arc.htm> (presenting the views of this organization).
325. See id. (presenting legal strategies for the organization and legal practitioners willing to take on circumcision medical malpractice cases against individual physicians and hospitals).; see also Chessler, supra note 202, at 573-75 (drawing similarities between the cultural justifications given for female genital alternations in other countries and those given for infant male circumcision in this country). The author then proposes constitutional and international human rights legal attacks upon physicians and hospitals for any alteration of any child's genitals and analyses the potential utility of each. Id. at 586-603.
326. See Llewellyn, supra note 74 (relating the story of the $65,000 award of total damages for the removal of a baby boy's foreskin without the consent of his parents).
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