Iowa Law Review, Volume 85, Issue 4: Pages 1507-1568, May 2000.
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.
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).
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.").
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