Note:
The law has progressed since this article was written in 1971. Damage awards for "wrongful circumcision" are not uncommon today.
Journal of the American Medical Association, Volume 218, Issue 1: Pages 149-150, 4 October 1971.
Circumcision of newborn boys is, of course, an extremely common procedure. It is undoubtly done hundreds of times a day in American hospitals. Considering the number of instances in which it is done, the number of actions alleging negligence in its performance, either with babies or adult men, is so small as to be considered almost non-existent. There are however, a few decisions on various aspects of the problem.
Two decisions deal with decisions in which infant boys were circumcised without parental consent.
In Noe vs Kaiser Foundation Hospitals (435 P 2d 306, Ore 1967), the baby was not supposed to be circumcised at all. When his mother was admitted to the hospital for delivery, she gave instructions that if the baby were a boy, he was not to be circumcised. This information was placed on her chart. A resident delivered her without reading the record and circumcised the baby. The resident later denied to the mother that she had either delivered the baby or circumcised him, but the facts were easy to establish. There was no claim by the parents that the circumcision was done negligently or improperly. The parents sued and asked for punitive damages. Punitive damages are those awarded over and above "actual damages," and are expressly designed to punish the defendant. They are extremely unusually in any sort of professional liability suits. Although the appeals court in this case agreed that the parents were entitled to recover nominal actual damages, it refused to allow recovery of punitive damages as a matter of law. It was held that gross negligence must be present to allow punitive damages in a professional liability action. The court said that the determinative factor is the present or lack of an aggravated disregard of the professional duties and standards for the medical treatment of patients. It was found that such a flagrant disregard, as opposed to an honest mistake had not occurred in this case.
Note:
The law has progressed since this article was written in 1971. Damage awards for "wrongful circumcision" are not uncommon today.
In Kalina vs General Hospital of Syracuse (220 NYS 2d 733, NY 1961, aff'd, 233 NYS 2d 808, 1962), the baby was supposed to be circumcised by a mohel in accordance with Jewish ritual at the age of eight days. By mistake he was circumcised by a physician when he was four days old. Again, there was no allegation that the circumision was performed in a negligent manner. The parents, however sought damages for their mental anguish. The baby was not a party plaintiff, through a guardian or otherwise. The court denied recovery. It was held that the parents did not have a legally protected right. It pointed out that damages for mental anguish are recoverable only by the party who has been assaulted--in this case the infant. It should be noted that in some few jurisdictions in this counry, mental anguish damages have been recovered by parents for damage done to minor children, and it is at least arguable that a different conclusion could have been reached in this situation had it occurred in a state other than New York.
All the other decisions involving negligence dealt with situations in which negligence in the manner in which the operation was performed was alleged.
Lippard vs Johnson (1 SE 2d 889, NC 1939), for example, involved circumcision of an adult patient. A local anesthetic was used, which the physician told the patient was procaine hydrochloride (Novacain). A blister appeared at the site of the injection and an infection resulted. The patient's condition was finally cured when he consulted a specialist. The patient sued and alleged that the procaine must have been contaminated. The court found that he had not presented any evidence of negligence on the part of the physician and did not allege any way in which the physician had failed to use his best judgment. The court further found that it was just as likely that the patient had an allergy to procaine as it was that the substance used was contaminated. A nonsuit in favor of the physician resulted.
In Johnson vs Colp (300 NW 791, Minn 1941), an infant boy developed a large scar at the site of the circumcision. It required surgical removal. In holding that the plaintiff had no cause of action, the court noted that the physician is not required to insure a good result when he treats a patient. He must merely conform to the standards of due care expected of him. The court held that the child's mother had produced on evidence of the standard of care for the procedure in the geographical area in which she lived. She also did not produce any evidence to show that the defendant had ben unskillful when he treated her son. It was also noted that the physician had told her to bring the baby back for a checkup and that she admittedly failed to do so.
On the other hand, in McNabb vs Mason (264 NE 2d 623, Ind 1970) the court held that the patient did state a cause for action which would allow him to take the matter to the jury for its determination of the facts. The case had been filed more than five years before the decision, during which time the patient changed attorneys several times, obtained continuances, and asked for two changes of venue. During this period, the patient himself died of cancer and his widow became the plaintiff. The complaint stated that the patient had consulted the physician about a circumcision. At the time it was supposed to be performed, the physician cut his urethra and excised two large sections of his penis. In a second operation the patient alleged that further excisions were performed, again instead of a circumcision. The physician maintained that the patient had consulted him about an inflammation and that surgery was performed to determine its cause. At that time he found a condition which appeared to him to be precancerous and he excised two small segments for biopsy. The second procedure, electrocautery, was designed to remove warts. The urologist who had been consulted about the case by the physician admitted that the specimens showed no malignancy (although the patient had died of cancer by the time the decision was reached) and that he would have preferred to remove the warts surgically, not be electrocautery. The trial court granted the physician's motion for summary judgment. The appeals court reversed. It held that the matter should be brought to trial because a genuine issue of fact existed as to the purpose of the first surgery and the skill which had been exercised during it regardless of the delays and difficulties caused by the patient in bringing this matter to court.
The general rule appears that expert testimony must be presented on behalf of the patient in these cases. (Johnson vs Colp; Lippard vs Johnson; Bates vs Newman, 264 P 2d 197, Cal 1953). However in one decision, the court held that the doctrine of res ipsa locquitur could be applied. In Valentine vs Kaiser Foundation Hospitals (15 Cal Rptr 26, Cal 1961), an infant boy was the patient. He was circumcised a few days after birth. A black spot appeared on his penis and his parents alleged that it was there before he was dismissed from the hospital and should have been noticed by hospital personnel. A severe infection occurred and the child was brought back to the hospital, where consultations were finally held with specialists. Eventually he lost his glans penis. The trial court held that there was ample evidence to allow the jury to assume that the child was infected before he was released from the hospital. Since this type of accident does not, according to the appeals court decision, occur without negligence, it approved of allowing the lower court to apply the doctrine of res ipsa loquitur. It should be noted, however, that decision does not appear to have been followed in any other cases involving circumcision since it was decided ten years ago. Furthermore, the basic concept of res ipsa loquitur applied in the decision, that the rarity of the occurrence is an indication that negligence existed somewhere, was specifically disapproved in the decision of Silverson vs Weber (372 P 2d 97, Cal 1962), although that casse did not deal with the same subject matter.
As can be seen, a lawsuit arising from a circumcision is extremely unlikely, statistically. Such a simple procedure is, of course, not likely to produce great complications. The usual requirements of standards of skill and care and knowledge, however, do apply to this, as to any other surgery. It should be noted, however, that if parents of a newborn boy do not want him circumcised, make this fact known to the obstetrician or the hospital, and the procedure is carried out by mistake or failure to read the patient's records, a suit for assault on behalf of the baby may well succeed. Damages, however, would be comparitively minimal unless the parents could prove negligence in the manner in which the procedure was carried out. In a few states which have very liberal decisions on allowing damages for mental anguish, it is at least possible that the parents would also have a cause for action for mental anguish, although no decisions on the subject can be found in those states. Care, therefore, should be taken to note in the mother's hospital records that she has not, in fact, consented to the procedure. --ANGELA RODDEY HOLDER, JD
Prepared for the AMA Office of the General Counsel. Reprint requests to the Office of the General Counsel, American Medical Association, 535 N Dearborn St, Chicago 60610
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