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Perspectives & Information on Legal Issues Surrounding Circumcision |
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Because I work as the General Counsel for an international physicians’ group, Doctors Opposing Circumcision, I get regular calls and emails from men aggrieved by their childhood circumcisions, whether botched or typical. They wonder what their legal rights might be. I offer below some general observations that may be of some help, though the news, I fear, is not all that comforting. Legal scholars have long observed that male infant circumcision (MC) lacks consent of the patient and provides dubious and controversial net medical benefits, at substantial risk. As the always questionable medical justifications have grown weaker, (except for recent HIV AIDS claims, which see later herein), The protections for the child have expanded, and the internet has made that skimpy ‘evidence’ more available for all to assess. There is a growing realization that the circumcised child might be able to sue for what happened to him. The interesting issue is: sue whom? and on what theory? CHILDREN AS PROPERTY We start from the legal premise that only 150 years ago children were considered mere chattels of parents, who could do pretty much what they liked short of infanticide. Vestiges of that era linger in laws that protect parents from a charge of assault for ‘necessary physical chastisement’ like spanking or caning. (Which has been challenged unsuccessfully in England and New Zealand, and at least one U.S. town, with minimal progress, though outlawed in Scandinavian countries, for instance. The law is a lumbering creature, and rarely leads the charge, of course, more’s the pity.) Circumcision is really a sui generis situation in Anglo-American law, a case all on its own, and fraught with contradictions, paradoxes, even instantly summoning issues of religious freedom vs. children’s rights. (Oddly, since religious circumcisions are barely 0.3% of the problem, but these are always the tail that wags this dog, in North America anyway). Because these largely interlocking cultural complications are not easily parsed out, I list here some legal sub-issues for the sake of simplicity. Very good volumes have been written on this subject* and I do not pretend to be an expert, legal or medical, though I have given it much thought: BOTCHED CIRCUMCISIONS—Typically medical malpractice law covers these, and the only real question is: Did the circumcision fall outside the standard of care? (Typically not the core question—should it have ever been attempted in the first instance?) In other words, was the technique used the usual one and can the plaintiff prove the poor result was the fault of the physician or the mohel? (Yes, mohels get sued and they may carry malpractice insurance, or the synagogue does.) EX—if failure to use anesthesia is common in that jurisdiction, and the Court uses a local standard of care, then a doctor may not be negligent who withholds it regardless of the growing international evidence of permanent psychological harm. (The observant reader will realize how much power this gives doctors to cover for each other, region by region, despite international science.) Botches are garden-variety lawsuits (though very expensive and complicated), with expert medical witnesses on both sides needed and critics of circumcision thin on the ground, proponents as common as dirt. Though suits for a botched MC would seem slam-dunks, they suffer from the fact that the parents may not even know their son was botched, or if they suspect so, are too embarrassed to do anything about it. And of course, doctors are typically unwilling to testify against their colleagues, whom they may rely on for referrals, so witnesses for the child are rare, (and brave, and typically– expensive). Anecdotal evidence shows doctors actively discourage the parents from bringing suit, (as traumatic for the child; how cautious and kindly of them!) until the statute of limitations runs, which see below. STATUTES OF LIMITATION AND REPOSE Then there is the fact that some jurisdictions have not only interposed short Statutes of Limitation, (1-3 years is common), but have also instituted *Statutes of Repose*, ultimate end-limits which forbid suit even in the face of provable fraud and dishonesty. Many U.S. states have found these an unconstitutional restraint on the rights of the child, and have allowed the 18 year-old to sue for a childhood injury the parents ignored (or helped to cause). But in other jurisdictions, the ultimate end limit comes at 6, 7, 8, or 10 years of age, effectively locking the 18 year-old adult out of any legal redress. What 7 or 10 year-old is alert enough to seek a lawyer on his own before the Statute of Repose runs? SOR’s were created with the specific intention of protecting the physician from aging claims / old, unreliable witnesses, and are very difficult to surmount. They are paternalistic as well as pre-emptive—founded on the optimistic supposition that parents will zealously pursue the rights of their child while he is still a toddler. But where parents have sought circumcision, (for whatever misguided motives), are those same parents likely to pursue the rights of the child the physician injured? The answer is uniformly melancholy. And where the results and follow-up care, well or ill, are covered by insurance, who cares about the many trips to the doctor, the repair surgery, the nuisance, and the money, when it’s for a mere child? Thus most lawsuits for botched circumcisions are never filed, and the adult male is stuck with the result his parents invited, and the physician insulated by law from any responsibility. The cynics among you may observe—with such a legal situation, the 26 year-old intern or resident who is practicing on a 2-day old boy has little to fear. (It has been said that most North American males have *beta genitals*, that is whatever the over-tired, ill-supervised, youthful medical resident or intern left behind as his or her hasty homework.) Whatever he or she does, unless the result is manifestly atrocious (glans or entire penis lost by eschemia (loss of blood supply) or an infection like Fournier’ gangrene requiring skin grafts), the end result will never become a successful lawsuit in any jurisdiction. If the child looks even vaguely like other circumcised children, no lawsuit is affordable, or possible, full stop, no matter the damage to sexual function. Only two U.S. states—Michigan and Maryland– allow adult suit for loss of sexual function at childhood, and cases successfully using those laws are effectively non-existent. TYPICAL CIRCUMCISION, NO BOTCH CLAIMED—SUING THE DOCTOR So then we come to the more tempting scenario—the 18 year-old adult who realizes how badly injured he was by circumcision and seeks legal counsel. Well—good luck. In North America both lawyers are likely to be circumcised, as will be the judge and 70% of the male jurors, as this is a class phenomenon. No one wants to think they have been diminished by circumcision, so how much sympathy will the aggrieved / circumcised male be able to muster even from his own attorney no matter the evidence? Therein lies the quandary. In 2004, a much watched New York case of this sort—Wm. Stowell v Good Samaritan Hospital, was settled for mid five figures. Unfortunately it was not the purely ethical case many of us wanted, but had a hint of failure of consent– the mother being incapacitated by drugs when she signed the consent form. Nevertheless it was a brave effort on behalf of both the teenaged plaintiff, (who, heroically pursued the case himself at his own cost), and the attorney who risked personal sanction to do so (see later herein). SUING ONES PARENTS It has been suggested, even by a district court judge (See Flatt v Kantak, a North Dakota case), that the child might be able to sue his own parents. This presents both historical and practical problems. Historically in the law, a child was unable to sue his parents because of intra-family tort immunity. The law assumed that it would be divisive to allow a remedy that might cause a family to fly apart. Though this doctrine has largely disappeared, remnants and prejudices linger. Such suits—‘divorcing’ one’s parents for neglect, wriggling free of a custodial parent now incarcerated– are viewed cautiously in the law. Where there lingers a suggestion that the parents ‘did their best at the time,’ suing ones parents for circumcision is a dubious and unwelcome strategy that juries are unlikely to reward. Moreover, even the most generous jurisdiction only allows the adult-child to do so during a narrow window—for a year or so after age 18. As it happens that is the precise time when a male child most needs the parent’s cooperation, in order to acquire tertiary education or transition to emancipation at a minimum. Thus the parents, probably embarrassed, have leverage to quash any such attempt, and the young adult has the least leverage or resources to proceed. WHY LAWYERS WILL HESITATE TO TAKE SUCH A CASE: Then there are the disincentives for the lawyer. In jurisdictions like England where the plaintiff must pay the lawyer by the hour, it is very likely that the male cannot afford to retain any lawyer at all, end of story. In North America where contingent fees (based on result) are permitted, the young man of 18 with an obvious botch will still find difficulty getting a lawyer to take his case. If the botch is that bad, likely it was adjudicated when the young man was young, probably at bargain basement rates, and cannot be tried again, regardless of who got the money (usually, the parents). If the botch is the sort that parents might overlook but that bedevils the male, the case is beset by the simple problem that it is very unlikely that a physician can be found who will support that medical malpractice has occurred long ago—if the defendant physician is even still around. Many a botched circumcision is classified by doctors as "Well that happens, and there is not much we can do about it." In other words, the botch has to be pretty bad to attract any sympathy. Painfully taut erections, skin tags and bridges, irregular scars, pitted glans, recurrent urethritis, curved penis, dead-ended varicose veins, minimal erogenous tissue, sexual dysfunction and a dozen other common results, are in the popular view, all to be expected. One California case holds these are the natural results of circumcision, not worthy of compensation, certainly not from the physician, who was only doing as requested by the parents. The other popular conception holds that plaintiff’s trial lawyers will take any case that walks in the door, but that is far from the truth. Medical malpractice cases have very high start-up expenses, require willing medical experts, and must overcome the public’s perception that doctors are near-deified, highly ethical providers of a valuable service who could hardly do wrong, and would certainly not intend to do so. Then there are the personal sanctions for bringing a frivolous case. In all U.S. states, the lawyer who files a frivolous lawsuit is subject to personal risk from what’s called Rule 11 sanctions. This allows the defense to charge the plaintiff’s lawyer both the cost of defense and the cost of summoning expert witnesses if the judge believes the case is not viable. Not only do these costs include the defense attorneys’ fees of US$200-$400 an hour, (always inflated) but the expert medical witness fees of US$500 to $1000 an hour (always inflated). Thus even a simple case risks the entire (uninsurable) net worth of the attorney, for a very meagre (in the case of a circumcision) proven damages. Imagine how tempting it is for a circumcised judge with three circumcised sons to impose this sanction, if only to quiet his own conscience! HIV /AIDS Recently several studies in Africa have suggested that male circumcision may be a solution to the transmission of HIV / AIDS at least the male to female vector anyway, and indeed AIDS is a deadly scourge. The Cochrane Review in London, a sort-of Underwriters Laboratory of medical research, says the jury is still out. But an August 2005 study which claimed a prophylactic effect for male circumcision received a lot of positive publicity world-wide. Such studies of course are usually conducted by those who were circumcision advocates to begin with, and who interpret the evidence to suit the study. No such study discusses or considers the value to the male of his own erogenous tissue, not does any consider the dubious bioethics of amputating healthy tissue to protect an unknown other in the future-maybe. In circumcising cultures like the US, Canada, and Australia, such research finds easy print. (One study, which you will NOT see in the headlines, shows that female circumcision, amputating similar mucoid tissue, has a similar prophylactic effect. Do not expect a randomized trial on this theory any time soon, or 72 point headlines.) Nevertheless, such studies make world headlines and serve to prop up the existing notion that circumcision is no worse than benign, and may be good public health policy. Claims that circumcision dampens the male’s sexual sensation, if believed, will likely be weighed in the public’s mind very lightly against the larger utility of ridding the world of AIDS. Such a perception, once planted, is likely to stall or slow bioethical progress and trample the rights of infants. It may even make impossible a suit against a doctor for an unconsented circumcision (as a technical assault) that merits money damages for the injured male. CONCLUSION Thus after four years studying this issue intensely, and in the present environment, I am not optimistic that a North American jury would award any but token damages to a male with a typical circumcision, or even a mangeable botch. Like East African females, our elders seem largely stuck with the myths and fantasies of their culture, we were unprotected by our badly advised parents, and subject to the rankly dishonest but very effective marketing campaign Anglophone physicians have devoted to vilifying normal male genitalia for the past 140 years. John Geisheker, J.D., LL.M. |