My Son Was Injured in a Botched Circumcision. Now What?
Published in medical malpractice on April 14, 2017.
For all parents, the decision to circumcise is personal. The American Academy of Pediatrics, after a thorough review of scientific literature, announced in 2012 that the benefits of the procedure outweigh the risks. However, the benefits of circumcising aren’t great enough to encourage universal circumcision. Parents are encouraged to make the decision based on their ethical, cultural, and religious beliefs.
The procedure of circumcision is routine, and has a low complication rate. Unfortunately, there is always a chance of injury with any medical procedure. If your son was injured during his circumcision, do you have a case?
The Case for Negligence
Like all legal questions, there is no clear-cut answer to this question. Depending on the nature and circumstances surrounding your son’s injury, you may have a case. The success of these types of cases hinges on proving someone committed medical malpractice. You may choose to file a suit against the doctor, hospital, or practitioner who performed the circumcision if the following apply:
- A doctor/patient relationship existed. In other words, you and a medical provider agreed to get your son a circumcision. You couldn’t, for example, sue a mohel (Jewish person who performs circumcisions) for a botched circumcision. They are not required to be licensed medical professionals, and cannot be held accountable for medical malpractice. You may be able to pursue a claim for clergy malpractice, but the courts are wary to hear these types of cases for fear of interfering with religious freedom.
- The doctor was negligent. Each doctor is bound by law to adhere to a standard of care, which is defined as what a reasonable doctor would do in the same circumstances. Your doctor doesn’t need to perform to the best of his or her abilities; they just need to be competent. A violation of the duty of care provides the framework for negligence.
- The negligence directly led to your son’s injuries. Since many medical malpractice cases involve people who are already sick or injured, this can be the most difficult aspect to prove, but may be easier in cases involving circumcision.
- The injuries led to specific damages. In the case of a circumcision, children may require ongoing therapy and treatment. This would be an example of economic damages that a provider may be liable for, as well as the pain and suffering associated with the recovery.
You may also have a case if a medical professional performed what is referred to as a “wrongful circumcision.” In other words, they circumcised your son without your valid and informed consent. Since newborns are unable to lawfully consent to anything, the decision rests with the parent. If you feel the procedure was performed without your valid or informed consent, talk to a personal injury attorney about your options. In general, we define “valid and informed consent” as being aware of the risks and benefits associated with a procedure before deciding.
What if Only One Parent Consented?
Circumcision usually requires the consent of both parents. For this reason, a medical provider usually won’t perform one unless they have the consent of both parties. If one partner doesn’t provide their consent, this provides a strong legal framework for a medical malpractice lawsuit. If one parent wants a procedure, but the other doesn’t, a parent is within their rights to seek a court injunction to stop it.
Statute of Limitations
There is a time limit for filing a personal injury suit for a botched circumcision. Since the case involves a minor, the clock begins to run at age 18. Parents (or grown children) have 2 years from the 18th birthday in which to file a personal injury suit. If you think you have legal grounds for a suit, it’s in your best interest to consult an attorney as soon as possible.