Particularly in the United States, suing for circumcision malpractice is an uphill battle.
About 80% of US males are circumcised from birth, and though male infant circumcision rates have fallen in the past years, to about about 56% if
CDC numbers are to be believed, the practice is still quite prevalent, at about 1.3 million boys circumcised a year.
This means that male infant circumcision is viewed favorably by a considerable number of the population.
The country is exposed to a constant drizzle of news articles and "studies" saying that circumcising male infants is "beneficial," and that adverse effects of it are "negligible."
So we, as a nation, are predisposed to believe that circumcision is a benign, "harmless" procedure and that nothing could ever go wrong.
It's no surprise, then, that any adverse results that do present themselves are minimized, and those who are at fault for negligence or malpractice are often absolved, boys and men who have to live with the consequences of a circumcision gone wrong be damned.
Connecticut Mogen Clamp Case
A circumcision malpractice case is currently stirring up controversy on Facebook, where at least one user who posted the case on his timeline has been punished with a 30 day ban.
The case in question is
Mahoney v. Smith, a case in Connecticut where parents sued
Dr. Lori Storch Smith over malpractice for a circumcision performed at Norwalk Hospital on December 29, 2010.
During this procedure, Dr. Smith used a Mogen Clamp, and then realized that she had cut off approximately 30% of the glans of the baby's penis. The baby was subsequently transported to Yale-New Haven Hospital where he had the amputated portion reattached.
The trial began on April 15, 2015 – and the jury cleared the defendant. The verdict was appealed, and the Appellate Court
ruled against the plaintiffs on July 13, 2017.
Long story short, the jury was presented with evidence, and despite the fact that the child's circumcision resulted in 30% of his glans being amputated, decided that the Bay Street Pediatrics doctor should be cleared of medical negligence.
The Devil in the Details
The parents tried appealing the court decision but were unsuccessful.
They tried to argue that a video shown in court was unfairly allowed by the trial judge, which may have swayed or confused the jurors.
The video shows a Mogen procedure being completed successfully without any complications.
Furthermore, details that were never an issue or point of contention were addressed, namely that anesthesia and the right surgical tools to control bleeding were used. (The end result was 30% of the child's glans being severed, regardless of how much anesthesia or which tools were used.)
According to the appellate court, rather than confuse, the video likely illustrated for the jury the testimony given by the Mahoneys’ own expert witness, Dr. David Weiss, describing a circumcision using a Mogen clamp, an allegation that can't be true, given the fact that the child's circumcision was a botched surgery, not one completed successfully as shown in the video.
The problem lies in the technicality that the Mahoneys' counsel identified the video as acceptable evidence for presentation prior to the trial.
The Mahoneys are apparently at fault for not having requested to see the video before it as presented and rejected it as evidence.
According to Law360, "
The plaintiffs could have asked to watch the video prior to its introduction at trial, but did not do so; nor did they file a motion in limine seeking to preclude its admission into evidence, move for a continuance after it was marked for identification or recall Dr. Weiss to serve as a rebuttal witness concerning the video," the panel wrote in a nine-page opinion.
The Mahoneys tried to argue that use of the video violated the court rules regarding disclosure of expert testimony, but the panel rejected this argument saying the plaintiffs did not specifically make those claims in their motions to set aside the verdict for a new trial.
The jury, while deliberating, wanted to see the video again. However, this request was denied because the video itself was not part of the evidence, because it was not produced as evidence and was not a recording of the actual botched surgery. (Begging the question of why it was allowed to be shown in the first place.)
The jury then requested to hear again the declaration of the expert witness, the one that presented the video. They were told they could get a transcript but that would take about 2 days to just listen to the transcript again.
It must be asked, what was the purpose of showing a video where the procedure went how it was supposed to in the first place?
How was it significant enough to show it to the jury the first time, but suddenly not significant enough to request to see it a second?
So if your blogger read the appellation correctly, the court discouraged the jury from re-hearing this testimony. In my opinion, this is necessarily the result of judges who are already circumcised themselves, and/or have circumcised children, working with a jury whose members are likely to be circumcised/parents of circumcised children themselves, both of whom already want believe circumcision is benign and could never go wrong, and want to see this case dismissed, so that they can go back to believing circumcision is "harmless" and "good."
In the end, a child's glans was partially amputated, and the jury believed the doctor wasn't negligent and performed the circumcision "properly" because that's what they saw in a video.
And it's the parents' fault for not requesting to see the video before it was presented.
The details can be read
here.
It Doesn't Matter
A Mogen clamp; the circumcision clamp used in this case
We can go on and on quibbling about the details in this case, how the judges, jury, lawyers handled it etc., but that is beating around the bush.
The fact is
a mogen clamp was used in 2010, when it was already clear that there is potential for injury even in the best case.
I have already written numerous posts on this before, but the Mogen Clamp is notorious for glans amputations.
Common Mogen Problem: The circumciser is blind to the
conditionof the child's glans. Some or all of the glans is pulled up
along with the foreskin, resulting in partial or full glans amputations.
Back in August, 2000, the FDA issued a warning regarding the potential for injury employing the use of the Mogen and Gomco clamps, after 105 reports of injuries between July 1996 and January 2000.
On July of 2010, six months before this botched procedure, an
Atlanta Lawyer won a $10.8 million lawsuit for the family of a baby whose glans was amputated during a Mogen clamp circumcision.
Mogen Circumcision Instruments of New York was already $7 million in default on another lawsuit, and was thus forced out of business.
Another baby, born on March of 2010 (9 months before this botched circumcision) also had the glans of his penis removed during a Mogen clamp circumcision. His parents
filed a lawsuit on April of 2015.
The FDA warning was later archived, but remained accessible on their website for some time.
(Incidentally, your blogger tried accessing that warning today, but it is nowhere to be seen. The failed search even offers to search the FDA archive, but this is also a dead end. Fortunately, a copy of the warning can be found archived on the
CIRP webpage.)
AAP Silent
In 2012, the American Academy of Pediatrics issued their policy statement on circumcision, in which they make the self-contradictory statement that “
the benefits outweigh the risks”, but that “
the benefits are not enough to recommend circumcision.”
Dr. Andrew Freedman from the task force said that “
there are modest benefits and modest risks."
In their statement, the AAP tries to minimize the risks and complications of male infant circumcision, including the most catastrophic risks, which include partial or full ablation of the penis, hemorrhage and even death. Reported incidences of adverse effects of circumcision are dismissed as
"case reports" because of the lack of statistics.
The AAP admits in their 2012 statement that "
the true incidence of complications after newborn circumcision is unknown."
The AAP policy statement on circumcision is turning 5 years next month.
Will they reaffirm it?
Will they present a new one?
Are they even trying to document the actual number of catastrophic injuries?
The fact is, physicians and hospitals are not required to report adverse outcomes of circumcision procedures.
It's also a fact that the AAP is first and foremost a trade union, whose primary interest is the welfare of their members, a great deal of who profit from the business of male infant circumcision.
Something tells me they're not interested in conducting investigations that could prove devastating to their members.
The bottom line is that male infant circumcision is elective, cosmetic non medical surgery whose risks and complications are no longer deniable.
Are parents being warned of these risks?
But more importantly, can doctors get away with reaping profit performing non-medical surgery on healthy, non-consenting individuals?
Were it the amputation or extraction of any other part of the body, the medical fraud would be undeniable.
Why is it that doctors who perform male infant circumcision get a free pass?
Related News Articles:
Schmidt Law - Mogen Clamp Circumcision Lawsuit Filed for Penis Amputation
AJC - Atlanta lawyer wins $11 million lawsuit for family in botched circumcision
WCPO Cincinnati - Cincinnati protesters demand end to circumcisions at Good Samaritan Hospital
