$1,200,000 Recovery - Medical Malpractice/Informed Consent - failure to advise parents of three year old that mohel rather than physician would be performing circumcision - severance of head of penis.

This was a medical malpractice action in which the plaintiff parents of a three-year-old Jewish Russian Immigrant contended that the initial defendant, a Mohel, who is a non-physician trained in performing circumcisions, negligently severed the head of the penis during the procedure which was performed at the defendant out-patient facility. The plaintiff contended that the defendant urologist, who was listed as the operating surgeon on the consent form, and the defendant outpatient facility at which the procedure was performed, failed to obtain the informed consent of the parents whom, the plaintiff contended, were advised that the procedure would be performed by the urologist. The plaintiff also contended that the defendant urologist negligently opted to administer a local anesthetic into the penis which the plaintiff contended was unnecessary because of the use of a general anesthetic and that the local cause a normal risk of swelling which complicated the work then performed by the Mohel. The Mohel was uninsured andjfiled for bankruptcy.

The plaintiffs contended that after emigrating to this country, they desired that their son undergo the circumcision which was generally not performed in the then Soviet Union. The parents contacted a religious organization who referred the parents to the defendant out-patient facility. The defendants contended that this organization had arranged the surgery, had advised the parents that the urologist would perform the circumcision and the urologist named this organization as a third-party defendant. The plaintiff maintained that the defendant outpatient facility's nurse had provided the consent form which listed the urologist and that this nurse's signature was on the form reflecting that she had obtained the signed consent form of the parents.

The plaintiffs expert urologist testified that the severance would not occur in the absence of negligence. The expert further contended that in view of the fact that the procedure was not performed on a newborn baby, it was much more complicated and should have been performed by a physician rather than a Mohel. THe expert further contended that the urologist deviated in administering the local anesthetic agent Lydocaine. The expert contended that the local was unnecessary because of the use of the local was appropriate because of anticipated post-surgical pain. The defendant further denied that any swelling occurred. The plaintiff maintained that the defendants could not offer any explanation as to the manner in which such an injury could occurin the absence of negligence.

The evidence disclosed that after the severance, the defendant urologist attempted to reattach the penis. The plaintiff was then transferred to the non-party Bellevue hospital by ambulance. The evidence disclosed that during the course of the next several week period, approximately 80% of the head necrosed. The plaintiff contended that although future cosmetic surgery may be available, he will permanently suffer a very significant cosmetic deficit. The plaintiff further maintained that sexual sensation will be drastically reduced. The plaintiff's expert clinical psychologist maintained that it is very likely that the injury will cause a significant psychological reaction and the plaintiff contended that the combination of diminished sensation and psychological reaction will probably result in difficulties with impotency. The defendant denied that the sexual sensation will be significantly diminished and further contended that outlooks for cosmetic surgery are significantly better than claimed. The evidence disclosed that the infant plaintiff can urinate normally.

The case settled after approximately one month of trial for $1,200,000 with the out-patient facility contributing $500,000, the urologist $550,000 and the third party defendant $150,000.

Experts:

Plaintiff's expert general surgeon: Richard Bassin from Queens. Plaintiff's expert urologist: Jack Mydlo from Brooklyn. Plaintiff's clinical psychologist: Barry Protter from Bronx, N. Y.

Reference

Bronx County, N. Y. Pltf: Nozik. Index No. 20875/90; Judge Gerald Esposito, 11-22-95.

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