Circumcision without parental consent

we live in ohio. our son was circumcised in fall of 2002 against our wishes. the procedure took place not only without our consent, but with specific parental instructions not to perform the surgery. we were told by the physician after she had performed the surgery. what legal action should we explore?

[ellencee]

OK; where to begin...
You have raised a question that for the time being is in a gray area of malpractice and other aspects of law. In this gray area is the issue that parents do not have the legal right to authorize a circumcision on behalf of the child; therefore, I suppose it is arguable that neither do you have the right to deny the child the opportunity to have the circumcision done during his neonatal age and cause him to undergo greater suffering should he have the circumcision later in life.

I can see it now, in a few years, sons will sue their parents for making them endure circumcision at the age of 20 or 30. In the present, it is some parents who are trying to sue for 'wrongful circumcision' when the procedure is performed without parental consent.

If I understood all that I read on this topic (and I did a net search for circumcision without parental permission), various members of the legal profession are trying to come up with some charge against physicians who have performed circumcisions without parental consent. These charges include criminal battery and child abuse. So far it seems that to charge the physcian for performing without consent is to give reason to charge the parents who give permission with the same crimes of battery and abuse.

From what I read, your option is to report the physician to the state's medical board for disciplinary measures, unless your son's penis was damaged in some way and to an extent that would warrant the expense of a medmal suit.

I suppose the American male will soon be uncircumcized unless he chooses or needs to have the procedure when he is an adult. What joy it must bring to all circumcized males who read this; they will be spared the agony of a mature penis' circumcision.

I did find one article that I believe proves what we women have suspected throughout the ages. The male brain is truly located in the penis. I base this finding of proof on the medmal case brought by a man whose lawsuit is described in an article titled, 'Man sues doctor over circumcision that resulted in brain damage.'

I'm sorry you and your husband are upset by your son's wrongful circumcision, but I thank you for asking so that I could research an answer for you.

Best wishes,
EC

[I AM ALWAYS LIABLE]

My response:

Ellencee - - WHAT?

Where did you get THAT information?

What we have here is an "assault & battery", and damages for "lack of informed consent." The parents have this "right" to allow, or disallow, any medically unnecessary procedure they choose for their child. The choice in NOT for the doctor to make.

Let me give you an example from California - -

The Supreme Court has interpreted "professional negligence" more broadly: "(A)n action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider." [Central Pathology Service Med. Clinic, Inc. v. Sup.Ct. (Hull) (1992) 3 Cal.4th 181, 187, 10 Cal.Rptr.2d 208, 212 (emphasis added)]

Battery requires:
-- an act committed by defendant with the intent to touch plaintiff (or put plaintiff in apprehension of a harmful or offensive touching);
-- not consented to by plaintiff;
-- coupled with an actual harmful or offensive touching that causes injury, damage or harm to plaintiff.

Lack of consent to the particular contact is an essential element of battery. [Rains v. Sup.Ct. (Center Fndn.) (1984) 150 Cal.App.3d 933, 938, 198 Cal.Rptr. 249, 252-253]

The intent necessary to constitute battery is not an intent to cause harm, but an intent to do the act that causes the harm. [See Barouh v. Haberman, supra, 26 Cal.App.4th at 44, 31 Cal.Rptr.2d at 261]

So, since this procedure WAS NOT "directly related" to child birth; e.g., cutting the umbilicus is "directly related", then what the doctor did was cause an assault and battery which is compensable with actual and punitive damages.

Why do you think hospitals have "consent forms" signed?

The parents are "in loco parentes" - - not the doctor. The infant's penis WAS damaged; i.e., the kid didn't come out of the "shoe" like he is today. That's battery, my dear - - no matter how you "slice" it.

IAAL

[ellencee]

IAAL
I stated I got the information from doing a net search for the poster's question.

I read numerous articles from various sources, some were medical on the legal aspects and some were legal sources.

I didn't say it wasn't battery. I didn't say the physician could make the choice.

The legal community is the one in disagreement on informed consent for circumcision since it is an elective procedure and that some jurisdictions are arguing that no one but the infant can make that decision and the infant can't make the decision because infants are considered to be incompetent. I read that California allows parents to make informed consent decisions on behalf of their children, regardless of the procedure. Not all jurisdictions hold the same to be true. The legal community is the one trying to sort out the implications of battery if the doctor makes the decision and if it is then battery if the parents make the decision.

I should have stated that I was answering the question of whether or not this is malpractice and stated that the medical community has not decided that it is malpractice but that it is wrongful circumcision and falls under professional disciplinary policies and not under malpractice.

Gee whiz, IAAL; how come you usually only comment on my posts to criticize me? We could have been friends! (I started to put sob, sob--but I didn't want you to take it personally instead of recognizing it as crying!)

I was surprised at what I read doing a search, as well. I had no idea this was such a topic of legal / medical debate now. There are several articles on this -- here are just two of many, many.
I would be livid if a surgeon had performed this circumcision on my newborn son without my consent and against my wishes, and I would seek any and every relief I could (if I could!).

Definitely -- get a lawyer to help you.


[url]http://www.cirp.org/library/legal/[/url]

[url]http://www.noharmm.org/knowrights.htm[/url]



hmmbrdzz

[stephenk]

are you sure the circurmcision was not performed for any medical reason?

When I delivered my son 11 yrs. ago, the dr. made me sign a consent form to do this procudure. Without the consent, they could not do the procudure. This took place the day before we left the hospital. They gave us 24hrs. to make the decision.
Katy

[I AM ALWAYS LIABLE]

Originally posted by katyann6593
When I delivered my son 11 yrs. ago, the dr. made me sign a consent form to do this procudure. Without the consent, they could not do the procudure. This took place the day before we left the hospital. They gave us 24hrs. to make the decision.
Katy

My response:

Thank you for sharing, Katy.

That wasn't the issue, but thanks for sharing.

IAAL

[HomeGuru]

[quote]Originally posted by I AM ALWAYS LIABLE
[b]My response:

The infant's penis WAS damaged. That's battery, my dear - - no matter how you "slice" it.

IAAL

**A: OUCH!

Let me take a wild and crazy guess . The parents' were billed for the circumcision. And who said crime doesn't pay!

We were asked for consent to perform the circumcision. We stated we did not want the procedure, so they threw away the consent form. Also, we did not want the procedure done because the baby's father and brother did not have it done. Someday we will face the "Why am I different from my father and brother question." Because of this, I am now having a difficult time leaving the baby. He is six months old now and we have not left him for any reason. This has been a traumatic experience and we are reminded of it every day when we change his diaper or give him a bath.

[ellencee]

If you have accurately portrayed yours and your husband's reaction to the circumcision, please seek professional counseling at once. The mental health of your infant is dependent on his parents' ability to function as normal, healthy adults.

The wrongful circumcision has nothing to do with your or your husband's reaction to the circumcision and no physician or hospital is responsible for your problems.

[I AM ALWAYS LIABLE]

[quote]Originally posted by 4mom4
[b]


Also, we did not want the procedure done because the baby's father and brother did not have it done.

MY RESPONSE: Sounds like a family tradition is in the making! And, by the way . . . How do you know about the brother?



Because of this, I am now having a difficult time leaving the baby. He is six months old now and we have not left him for any reason.

MY RESPONSE: That's one of the most ridiculous things I've ever read. Get a babysitter!

IAAL

[HomeGuru]

Writer, next time have a baby girl instead. Good grief!

Are you kidding? That's exactly what an attorney on your behalf would be looking for. Your baby had a circumcision without your consent and against your wishes. He'll want you sitting in the therapist's office for the next year or more. Call some malpractice law firms.



hmmbrdzz