Circumcision is a medical procedure performed on males, primarily on babies. It consists of surgically removing the skin covering the tip of the penis. Circumcision is an ancient practice that has its origin in religious rites. Today, many parents have their sons circumcised for religious or other reasons.
The use of circumcision for medical or health reasons is an issue that continues to be debated. The American Academy of Pediatrics (AAP) found the following health benefits of newborn male circumcision:
- Prevention of urinary tract infections
- Prevention of penile cancer
- Prevention of the transmission of some sexually transmitted infections, including HIV).
The AAP believes that the benefits outweigh the risks but are insufficient to recommend universal newborn circumcision.
The procedure is routine in America and has a fairly low complication rate (2-6 per 1,000); however, injuries occur. It is imperative to educate yourself about the procedure’s risks and benefits before deciding about your son.
Injuries resulting from a botched circumcision could be:
- Early complications such as bleeding, pain, inadequate skin removal, and infection. These injuries tend to be minor and quite treatable. If the child has a blood coagulation disorder, however, bleeding can be extensive and sometimes even fatal
- Late complications include cysts, suture problems, inadequate skin removal resulting in redundant foreskin, penile adhesions, and more. These can be treated on an outpatient basis
- Permanent complications include disfigurement and potential loss of the entire penis
Sadly, when a circumcision goes wrong, it often goes terribly wrong. While it can impact the infant or adult male physically for the rest of their lives, it can also impact their emotional and mental health.
My Son was Injured During a Botched Circumcision. Do I Have a Claim?
Whether or not you have a case for a botched circumcision depends on the circumstances of the injury. The legal theory for suing for a messed up circumcision is personal injury or medical malpractice (medical malpractice law is a subgenre of personal injury law).
Personal injury claims are based on an injury to a person’s body or mind caused by the defendant’s negligence. Botched circumcisions can qualify for a personal injury lawsuit if the procedure results in injury or disfigurement.
Negligence refers to an individual’s failure to use reasonable care, which results in injury or damage to another person. There are four things that the plaintiff must prove in a negligence action:
- Duty of care to the plaintiff – This element is clear in a circumcision case: the doctor owed the plaintiff the duty to carry out the work carefully
- Breach – This means the plaintiff must show that the defendant breached the duty of care. This is where you explain to the court what the doctor did wrong. That can be very hard since you may not have been present at the circumcision, and you don’t know what was done wrong. Case law has developed a doctrine called “res ipsa loquitur,” Latin for “the thing speaks for itself.” Res ipsa loquitur arises when it is common knowledge that the kind of harm that occurred does not happen unless the doctor did something wrong
- Causation – The doctor’s negligence must have been the cause of the injury to the child
- Damages – The plaintiff must have suffered some kind of loss. This is obvious in a botched circumcision case. Botched circumcisions can result in long-term physical and psychological damage. Children who have undergone a botched procedure could need continued medical treatment, such as cosmetic surgery and mental health therapy. Both future and present medical costs would be considered when calculating the damages
One way to establish these facts is to show that the defendant’s medical service falls short of the “accepted standard of care.” The standard of care test is basically what a reasonable healthcare provider in your community would do in similar circumstances.
Some examples of causes for circumcision problems are:
- Using defective tools during the procedure
- Failing to perform the procedure with adequate supervision
- Lack of care post surgery
You can file a suit against the doctor, the hospital, or the clinic. If the cause of the problem was a defective tool, you can also sue the manufacturer for the equipment used in the procedure.
My Son Underwent a Wrongful Circumcision. Do I Have a Claim?
A wrongful circumcision occurs when the child’s parents do not wish to have them circumcised, but the hospital staff or the doctor proceeds without parental consent.
To perform a circumcision, medical staff must obtain valid and informed consent from the parents before the procedure occurs.
Valid and informed consent means the person making the decision:
- Has the right to do so
- Was informed of both the benefits and the risks of the procedure
- Was not coerced into making a decision
If the procedure was not medically necessary and was an elective procedure that was done wrongfully, performing a circumcision on a baby when consent was not given may be considered legal battery and medical malpractice. An elective procedure performed without valid and informed consent is an illegal procedure. Each jurisdiction’s laws and the specific circumstances of the case will influence the outcome of the case.
There is a statute of limitations for personal injury lawsuits. This means a lawsuit must be filed within a certain time following the negligent act. The amount of time allowed varies from state to state. The statute has not yet elapsed if your child is still a minor (under eighteen).
Can I Sue a Mohel for a Botched or Wrongful Circumcision?
A Mohel, or a person who performs the Jewish rite of circumcision, is not a medical professional and cannot be sued for medical malpractice. There is no law requiring that Mohels be medical professionals in order to perform circumcisions.
Given the infringement on religious freedoms implications, judges are wary of hearing personal injury cases against Mohels. Judges consider personal injury claims against Mohels as a form of clergy malpractice, which is uncommon in the United States.
Although uncommon, a lawsuit against a Mohel would not necessarily fail. If the Mohel was negligent in the performance of the circumcision, that is not a religious issue – that is personal injury.
What If One Parent does not Consent to Circumcision? Can I Sue My Parents for Forcing the Circumcision On Me?
Medical professionals must obtain the consent of both parents before carrying out the procedure. If they do not, it counts as medical malpractice. The opposing parent can get a court injunction to stop the doctor from operating.
The law treats the parents’ decisions as the child’s decision until the child is old enough to speak for themselves. Therefore, it is very difficult for a person to sue their parents for decisions made for them when they cannot decide themselves.
Do I Need an Attorney for a Botched or Wrongful Circumcision Lawsuit?
If your child was circumcised wrongfully, or the circumcision was botched, it is essential to consult a knowledgeable and skilled personal injury attorney. You should do this immediately and not agree to any settlement before consulting with an attorney.
Personal injury and medical malpractice cases are very serious and complex issues, and you will benefit from experienced representation.