Iowa Law Review, Volume 85, Issue 4, Pages 1507-1568. May 2000.
Iowa Law Review, Volume 85, Issue 4, Pages 1507-1568. May 2000.
On October 16, 1998, three-week-old 
Dustin Evans, Jr. died in Cleveland, Ohio during anesthetized surgery necessary to repair his urethra, which had become blocked when his circumcision failed to heal.1 The boy's father is quoted as having said, you think,
2 It appears that no physician fully informed Dustin's parents that serious complications can occur with circumcision, and that such complications can lead to further surgical procedures. However, the entire medical establishment, as well as individual physicians and hospitals must share part of the blame for needless tragedies that occur, such as that which befell Dustin Evans. Circumcision, while being a widespread and long-standing surgery in American medical practice, has never been the subject of a comprehensive, prospective investigation into its complication rates.3what could go wrong with a circumcision?
Modern American medicine's reputation and esteem depend upon its adherence to scientific methodology and reasoning in making causal inferences. However, the initial practice of American medicine predated the ascendancy of microbial theories of certain diseases. Consequently, a procedure that may have come into use prior to a thorough examination of its scientific validity and may remain an inadequately proven procedure today. Routine infant male circumcision is one example.
Nineteenth century physicians used circumcision as a medical
cure for masturbation, which was thought to cause disease.4 Amazingly, as medicine became more scientific, circumcision was never thoroughly reevaluated. Instead, the medical community developed alternate causal hypotheses of disease related to the presence of the foreskin of the penis to clinically justify its removal by circumcision.5
The medical necessity of circumcision was successfully questioned in 1949. That year, an influential article published in the British Medical Journal reviewed the rationales regarding the benefits of circumcision and failed to attribute medical utility to any of them.6 The article examined the development of the foreskin and its physiological importance and also exposed the varieties and types of complications attendant to circumcision.7 When the British National Health Service discontinued coverage for circumcision in response to these findings, the surgery essentially disappeared from that country.8
Contrary to the events in the United Kingdom, the United States experienced an increase in circumcision rates after World War II.9 It was not until 1975 that the American Academy of Pediatrics Report of the Ad Hoc Task Force on Circumcision (1975 AAP Report), in a review of available research, reached a conclusion similar to that in Britain, stating that [t]here is no absolute medical indication for routine circumcision of the newborn.
10 The 1975 AAP report, published in the AAP's journal Pediatrics, also concluded that good personal hygiene could replace this surgery in maintaining the health of the male genital organs.11 However, because the 1975 AAP report deemed the surgery unnecessary but not harmful when balanced against surgical complications, physicians continued to circumcise.12
Fourteen years later, a new AAP Task Force on Circumcision (1989 AAP report) revised the organization's position, stating that new evidence has suggested possible medical benefits from newborn circumcision.
13 While retaining the now quite old--but still unproven justifications of reducing sexually transmitted diseases (STDs) and cancer, the new evidence
for a benefit from circumcision primarily consisted of studies asserting lower rates of urinary tract infections (UTIs) among circumcised infants.14 Unlike the AAP report, the 1989 version cited medical literature to support its conclusions.
However, on closer analysis, the 1989 AAP report's medical authority provides stronger support for the findings of the 1975 report. The 1989 AAP task force deemed almost all of the cited articles showing STD and UTI benefits from circumcision to be flawed, but found none of the cited articles with findings adverse to circumcision flawed.15 If the 1989 AAP task force chose to credit STD and UTI research that it knew to be methodologically flawed as it appears to have done, it would have breached scientific protocol. Methodological soundness is the preeminent consideration for those engaged in scientific investigation.16 It would be a failure to act in a scientifically responsible manner to give more credit to a larger number of flawed studies supporting the medical utility of circumcision than a smaller number of sound studies finding no medical utility from circumcision.
The AAP also drew questionable conclusions concerning infant pain during and after circumcision. The 1989 AAP report described the now acknowledged, but for many decades disputed, physiological pain responses as transient and disappear[ing] within 24 hours after surgery.
17 This statement ignored the increasing knowledge of infant perceptive abilities and warnings concerning the unknown long-term effects of perinatal pain.18
After a decade of continuing debate about circumcision, both inside and outside the medical field the AAP established another task force to review the controversial practice of routine neonatal circumcision. The new AAP task force issued a report in March of 1999 (1999 AAP report) that ultimately concluded, [e]xisting scientific evidence demonstrates potential medical benefits of newborn male circumcision; however, these data are not sufficient to recommend routine neonatal circumcision.
19 Though this statement was an improvement over the 1989 position, many of the research failings of the 1989 report recurred in the 1999 report.20 More importantly, the AAP equivocated in its duty to decide whether this surgery should be considered valid preventive medicine; instead, it left the decision to the cultural
desires of parents.21 In doing so, the AAP failed to realize that decades of asserted medical utility had created these prevailing cultural norms.
Another oddity of the medical practice of circumcision is that is is usually obstetricians, not pediatricians who perform circumcisions.22 This practice results in the anomalous situation of having physicians with experience in female reproductive anatomy performing unanesthetized surgery on a male reproductive organ. The American College of Obstetricians and Gynecologists ( ACOG) historically has deferred to the latest AAP circumcision task force position statement on the medical utility of circumcision.23 Although much of the negligence asserted against the AAP may also attach to ACOG for its deference to the AAP's position, a discussion of whether any liability is appropriate lies beyond the scope of this Note. In any case, ACOG's deference to the AAP's analysis and recommendations concerning circumcision is evidence of professional reliance, suggesting that the AAP should be subject to a duty of care.
This note examines the possibility of bringing a claim against a medical professional society or trade association, such as the AAP, for negligent promulgation of recommendations. Trade Association liability may be predicated on section 324A of the Restatement (Second) of Torts.24 Section 324 A allows for the imposition of liability upon a trade association for gratuitous services, such as a professional standard setting, if the association renders those services negligently.25
Trade association liability for issuing faulty guidelines was also addressed in 1996 by the New Jersey Supreme Court in the case of Snyder v. American Ass'n of Blood Banks.26 The plaintiff, a recipient of blood platelet transfusions performed in 1984 contracted AIDS.27 In order to address the liability of the American Association of Blood Banks (AABB), the court examined the role that the AABB played in the blood banking industry. The court found that [b]y words and conduct, the AABB invited blood banks, hosptials, and patients to rely on the AABB's recommended procedures.
28 The court held that the AABB owed a duty of care to individuals, like Snyder, because it was foreseeable that blood banks would follow the AABB's recommended procedures.29 The court also found that at the time of Snyder's transfusions, ample evidence existed that blood products could transmit AIDs, and therefore, the AABB was negligent.30
This Note will delineate how the Snyder decision and section 324A of the the Restatement can be used to extend tort liability to the AAP. However, much of the case against the AAP depends on a thorough understanding of the research findings available to the AAP and its choices in interpreting them. Therefore Parts I and II of this Note will address at length the medical rationales and issues surrounding circumcision at the time of the 1989 and 1999 AAP reports. Part III examines a number of legal theories by which the AAP could be held liable for its role in promoting circumcision as a viable medical practice. This Note concludes by recommending that the AAP face liability in order to force it to act in a scientifically responsible manner when investigating scientific evidence and issuing guidelines concerning the possible benefits and known harms of circumcision.
Following more than a decade of argument in the wake of an equivocal 1975 AAP task force statement, the 1989 Report re-examined the medical justifications for infant circumcision. Most of the utility claimed for circumcision was of a preventive nature. The maladies supposedly reduced or prevented by circumcision consisted of various STDs, cancers, UTIs, and abnormal conditions of the foreskin. Preventive surgery is not troubling if proven benefits of the procedure outweigh the costs and risks, as reflected through reliable complication rates. However, in the case of circumcision, the American medical profession has failed for half a century to institute a sufficiently comprehensive prospective research and evaluation program.
In adulthood, the foreskin is able to retract back from the glans down onto the shaft of the penis. Phimosis is the abnormal condition of a non-retractable foreskin, diagnosed from the occurrence of the hardening of opening of the foreskin or from prolonged adherence of the foreskin to the glans.31 Circumcision has long been recommended to parents as a preventive measure for phimosis.32
Edward Wallerstein, a former Communications Coordinator in the Department of Community Medicine at the Mount Sinai School of Medicine, in his book Circumcision: An American Health Fallacy, forcefully argued that circumcision as both a curative and preventive therapy for phimosis is unwarranted.33 He cited the groundbreaking 1949 study by the British researcher Douglas Gairdner, which demonstrated that foreskin retraction is a gradual process of development that can take years.34 Gairdner concluded that a diagnosis of phimosis cannot be properly applied to the infant.
35 Additionally, Wallerstein cited an eight-year study of 1,968 intact36 Danish boys that found 63% of the six to seven year-old boys did not have fully retractable foreskins.37 The study also found that by sixteen to seventeen years of age only 3% of these boys could not fully retract their foreskins.38 Out of the total of 1,968 boys, only three (.15%) eventually were circumcised to correct phimosis.39 In retrospect, the author of the study, Dr. Jakob Oster, was not convinced that circumcision was necessary even in the three cases where it had been performed.40
The 1975 AAP report stated neonatal phimosis is not a valid medical indication for circumcision.
41 The 1989 AAP report, without preventing any new information that clearly called for circumcision to prevent phimosis, simply warned that circumcision later in life may be a more complicated procedure.
42 The 1989 AAP task force was aware of Gairdner's article and findings because it cited him for his information concerning the progressive development of foreskin retractability.43 However, the 1989 AAP report does not mention Dr. Oster's findings or conclusions regarding phimosis.44 The logical inference from the AAP's omissions is that it is better to perform painful, unanesthestized surgery within the first several days of every infant boy's life than to circumcise a rare few later in life. The AAP task force did not weigh the incidence of foreskin condition, such as phimosis against the complication rates for neonatal circumcision. Likewise, the task force failed to examine any alternative therapies for phimosis. As a result, the 1989 AAP task force could not justifiably use the prevention of phimosis to support its alteration of the 1975 AAP statement.
Although the threat of phimosis might not be enough to convince parents to circumcise, the threat of cancer obviously ought to be more influential. The rationale of using circumcision to prevent cancer had been around since the 1930s, but the 1975 AAP report found no solid support for using circumcision to prevent cervical or prostate cancer and found that good hygiene was a preferable method for preventing penile cancer.45 However, the 1989 AAP report resurrected the rationales of using circumcision to prevent both penile and cervical cancer.
The 1989 AAP report omitted two well-designed studies that found no statistical effect between a husband's circumcision status and the incidence of cervical cancer in his wife.46 In addition, the 1989 AAP report did not review the international epidemiological evidence contained in Edward Wallerstein's book on circumcision, which eventually renders any link between male circumcision status and cervical cancer unsupported.47 The 1989 task force did observe that cervical cancer appears to be related to the age that a woman begins sexual relations and the number of sexual partners she has throughout life.48 The 1989 AAP task force, in making this observation did not give any citation. Thus readers of the 1989 AAP report were not alerted to sources of evidence unfavorable to theories linking a male partner's circumcision status to cervical cancer.
Aside from its omissions of pertinent evidence, the 1989 AAP report used language that appears to have been chosen to induce readers to make faulty inferences. Were it not for the misleading sentence construction in the summary section of the 1989 report which stated, [a]n increased incidence of cancer of the cervix has been found in sexual partners of uncircumcised men infected with the human papillomavirus,
49 the report would have clearly acknowledged a stronger linkage of cervical cancer to viral STDs. The sentence appears to have been constructed to draw attention to uncircumcised men
and to rhetorically conceal infected with the human papillomavirus.
Thus the summary section fails to reiterate better supported hypotheses that human papillomavirus and other viral STDs are causal agents of cervical cancer in women, irrespective of the circumcision status of their partners.50
The section of the 1989 report addressing cervical cancer contained further misleading language. The 1989 AAP report stated:
Human papillomavirus types 16 and 18 are the viruses most commonly associated with cancer of the cervix; Herpes simplex virus type 2 has also been linked with cervical cancer. Although human papillomavirus types 16 and 18 are also associated with cancer of the penis, evidence linking uncircumcised men to cervical cancer is inconclusive.51
The second sentence leads with a clause addressing the linkage between human papillomavirus infection and cancer of the penis, but the second part of this sentence substituted uncircumcised men
for men infected with the human papillomavirus, without supporting an equivalence for the two groups. Reliable evidence for a higher rate of viral infection due to lack of circumcision was not presented anywhere in the report's section on STDs.52 The section of the 1989 AAP report devoted to penile cancer did cite a Brazilian study that reported finding human papillomavirus in 31 of 53 cases of penile cancer.53 However, the penile cancer section of the report did not cite this study to support the proposition that viral STD infections are higher in intact men.54 The word although
which begins the sentence further conceals the rhetorical substitution. These rhetorical maneuvers appear to have been designed to divert attention from the inconclusive
55 linkage between cervical cancer and circumcision status, while subtly reinforcing a suspicion of linkage between foreskins and human papillomavirus, and, consequently, a male with a foreskin and cervical cancer in his partner.
Although the prevention of cervical cancer through the circumcision of male infants has always been questionable, the prevention of penile cancer has always been circumcision advocates strongest argument. The 1989 AAP report stated that penile cancer occurs
almost exclusively in uncircumcised men, and continued by stating that in five major reported series since 1932, not one man had been circumcised neonatally.
56 The report cites a 1975 article by researchers Elliot Leiter and Albert Lefkovits to support the contention that circumcision provides virtual immunity from penile cancer.57 However, the main purpose of the Leiter and Lefkovits article, which was labelled a case report
was to report penile cancer in a man circumcised neonatally and to cite other reported cases.58 It appears that the 1989 AAP task force in failing to enumerate the nine reported
cases that occurred in men circumcised neonatally, was uncritically parroting an industry opinion. Additionally, the task force appears not to have considered the possibility that there were only nine reported cases due to an industry-wide reporting bias. This failure to consider reporting bias as a possible confounding variable could result in readers erroneously concluding that circumcised men are immune to penile cancer.
The 1989 report, citing a 1980 estimate derived in a study by Mosze Kochen and Steven McCurdy, then stated that one in six hundred intact men will develop penile cancer in their lifetime.59 Kochen and McCurdy based their estimate on the assumption that all cases of penile cancer would occur in intact men.60 The 1989 AAP task force reported the estimate even though it was based on this assumption. In the very next paragraph, however, the task force, citing an article by Edward Wallerstein, admitted that countries which do not routinely circumcise have rates less than, equal to, and greater than the rate in the U.S.--whereas the majority of males are circumcised.61 It was not valid for the 1989 task force to report a one in six hundred lifetime risk for penile cancer among intact males when a major premise for the estimate, that only intact males get penile cancer, was clearly erroneous.
Additionally, Edward Wallerstein identified multiple incidences of faulty research design and wild hypothesizing in the search for a link between the retention of an intact foreskin, the presence of smegma, and the occurrence of penile cancer.62 It was irresponsible for the 1989 AAP task force, as reviewers of medical research, to have uncritically parroted a conclusion that neonatal circumcision provides virtual immunity from penile cancer in light of the pattern of researcher bias that Wallerstein exposed. The task force's underreporting of penile cancer cases in neonatally circumcised males, unfortunately, fit well into this historical pattern of bias on the part of the American medical profession.63
Whereas penile cancer made it onto the first page of the 1989 AAP report, cancer of the prostate was not even mentioned. The 1975 report mentioned it, but solely for the purpose of debunking any theory that prostate cancer occurs more frequently among intact men.64 As with theories linking circumcision with other cancers, Wallerstein demonstrated that findings connecting circumcision to prostate cancer were the result of badly designed and conducted research.65 By failing to present the fact of the discredited link between circumcision status and prostate cancer, the 1989 AAP task force, unlike its 1975 counterpart, did not alert the medical community to the full magnitude of the panacean claims for circumcision. Thus, a physician relying on the AAP's analysis was not put on guard in reviewing the claims for circumcision in the fight against cancer.
For many decades, circumcision advocates tried to use the prevention of cancer to justify circumcision. A new justification emerged in the 1980s--the prevention of urinary tract infections (UTIs) The 1989 AAP Task Force on Circumcision modified the 1975 statement, primarily using the reduction of urinary tract infections as its rationale, by stating in the introductory section, [n]ew evidence has suggested possible medical benefits from newborn circumcision. Preliminary data suggest the incidence of urinary tract infection in male infants may be reduced.
66 However, the section of the report devoted to UTIs ended with the admission that the UTI studies suggesting the utility of circumcision are retrospective and may have methodologic [sic] flaws,
and the study population may have been influenced by selection bias.
67 A 1990 article by Robert Thompson more thoroughly explained the methodological flaws in these UTI studies.68 He noted that these studies neither controlled for population variables among the boys' families nor accounted for differences in the health-care-providing behavior of physicians.
69
Notwithstanding the AAP's own worries over methodological flaws, the results of these UTI studies formed the impetus for the 1989 AAP review of circumcision.70 Once again, it appears that when the benefit of circumcision was the topic of investigation, the AAP task force was willing to overlook methodological flaws in research. The task force used the UTI findings to support their change in the position statement, even when such flaws consisted of failure to control subject variables, failure to control for physician biases, and the elimination of data that provided problems for the hypotheses.71
Additionally, the 1989 AAP task force readily adopted a theory championed by Thomas Wiswell--the main author of these problematic studies asserting UTI benefits from circumcision.--that the presence of a foreskin provides a site for bacterial colonization leading to UTIs.72 A hypothetical alternate explanation could be that some UTIs result from a lack of proper information on the care of the foreskin. Well meaning, but misinformed parents might have attempted to forcefully retract the foreskin's for cleaning underneath due to a lack of understanding of the foreskin's natural structural development. Forced retraction might have resulted in tissue irritation and avenues of entry for the germs that caused the UTIs. Neither Dr. Wiswell nor the AAP appear to have considered this possibility as an intervening causal variable in the results.
The AAP was aware of the forced retraction problem in 1989. In 1984 it had published a brochure called Care of the Uncircumcised Penis, largely to address the shocking lack of knowledge physicians displayed in surveys conducted in the early 1980s.73 The AAP brochure may have begun to educate physicians and parents to stop forcibly retracting children's foreskins and to stop unnecessarily cleaning under the foreskin with cotton swabs and antiseptics. However, the problem has not disappeared,74 and the AAP still suggests the daily use of soap under the foreskin once retraction has occurred.75 Anne Briggs, in Circumcision: What Every Parent Should Know, relates the story of Dr. William Mitchell, who was warned that smegma was a carcinogen, while attending medical school during the 1940s, and subsequently started washing under his foreskin with soap daily.76 It was only after changing from a daily rinse with water to this cleansing method that he developed his first foreskin infection.77 The ensueing series of infections and constant irritation unfortunately led him to choose circumcision as a cure.78 Dr. Paul M. Fleiss, in a 1997 article published in the magazine Mothering, recommends simply rinsing underneath the foreskin with water once it is retractable79--the method that kept Dr. Michell free of problems for 29 years.80 In view of its knowledge of the forced retraction problem, and the possibility that some cleaning behaviors themselves may be at fault, the AAP should have remained skeptical of Wiswell's causal hypothesis for UTIs.
Another non-cancer rationale for circumcision, but one which has been proposed since the nineteenth century, is the prevention of sexually transmitted diseases (STDs). Even though the 1989 AAP report retained a section addressing circumcision a possible preventive measure for STDs, the task force admitted that the [e]vidence regarding the relationship of circumcision to sexually transmitted diseases is conflicting.
81 Two studies that the report cited indicated that both gonorrhea and nonspecific urethritis occurred with greater frequency in intact men.82 However, in the next sentence of the report described both of these studies as inconclusive due to methodological problems.83 Other studies cited in the 1989 report, purporting to link intact penises to higher rates of viral STDs, such as human papillomaviruses and genital herpes are also listed as likely to have methodological flaws.84 In fact, every study that the task force cited for the proposition that circumcision lessens the risk of contracting STDs was also cited as methodologically troubled.85
The 1989 task force as also void of an analysis of the availability and cost effectiveness of alternate means of treatment and prevention of STDs. The analysis further lacked any comparison of medical utility between neonatal circumcision and alternate therapies. These two omissions served to undermine any implication that circumcision should be considered as prophylactic therapy for STDs. In view of the uncertainty in the data that purported to link circumcision status and numerous STDs, a responsible health organization should have reiterated the fact that avoiding sexual promiscuity and using condoms are the best methods of protection against STDs. The 1989 AAP report failed to do this.
The only methodologically non-problematic study cited in the STD section of the report found no difference in the incidence of gonorrhea between circumcised and intact groups and, in fact found a higher incidence of nonspecific urethritis in circumcised men.
86 Based on its own cited material, the 1989 task force could have scientifically concluded that avoiding circumcision confers a benefit against the risk of contracting STDs. In any case, similar to the situation for UTIs, the flawed studies, claiming circumcision reduced the risk of contracting an STD, failed to justify the 1989 task force's change in policy on circumcision.
Turning from a benefit examination of circumcision to a risk examination of circumcision, the 1989 AAP report continued the practice of ignoring sound evidence while crediting flawed evidence supporting the procedure. The report stated that [t]he most common complications are local infection and bleeding.
87 Though severe complications following circumcisions are rare, they should have been mentioned in the AAP's report when it mentioned three deaths that were openly attributed to circumcision complications in the last forty years.88 The report failed to warn that infections resulting from a circumcision can become quite serious and have impacts on other parts of the body. This has been documented in a four-year case study of four infants who were admitted to one Australian hospital for meningitis following their circumcisions and in a press release concerning the Alaskan lawsuit of Jacob Sweet.89 The AAP should have warned parents that infections from this type of surgery do not always remain local.
Aside from local infection and bleeding,
there is a striking range of complications that can result from circumcision. Rosemary Romberg, in her 1985 book, Circumcision: The Painful Dilemma, devoted over thirty pages to reviewing reports of various clinical conditions and surgical mishaps that can occur as a result of circumcision and can result in the loss of part or all of the penis.90 The 1989 report did not cite Romberg's book and failed to address the lengthy list of complications that she compiled from the medical literature.
At the very least, the 1989 report should have included what was mentioned in the Surgical Risks and Aftermaths
of the 1975 report, which informed parents and physicians that [t]he immediate hazards of circumcision include local infection which may progress to septicemia, significant hemorrhage, and mutilation.
91 The 1989 AAP report skipped directly from, the most common complications are local infection and bleeding to mentioning three reported deaths in the last forty years.
92 Thus, the AAP appeared to imply that there was no range of harmful effects between the two extremes.
Even though it postdated the 1989 AAP report on circumcision, the 1995 AAP Committee on Bioethics statement, entitled Informed Consent, Parental Permission, and Assent in Pediatric Practice, recommended that all known potential risks should be presented to parental decision makers:
[P]atients should have explanation, in understandable language, of the nature of the ailment or condition; the nature of the proposed diagnostic steps and/or treatment(s) and the probability of their success; the existence and nature of the risks involved; and the existence, potential risks of recommended alternative treatments (including the choice of no treatment)...[and] assurance... that the patient has the freedom to choose among the medical alternatives without coercion or manipulation.93
This policy statement appeared to underscore the duty to avoid manipulation
by omission, which was probably not different in 1989 just six years before. The 1975 AAP report explicitly stated that possible adverse outcomes should be discussed with parents well in advance of delivery, when the capacity for clear response is more likely.
94 The 1989 AAP task force should have been urging physicians to present parents with information concerning all possible adverse outcomes of the surgery, the uncertain nature of circumcision's benefits, and the benefits of remaining intact.
In addition to failing to include a discussion of the full variety of complications that can result from circumcision, the 1989 AAP report also understated the statistical rate of complications. The report stated: The exact incidence of post operative complications is unknown, but large series indicate that the rate is low, approximately 0.2 to 0.6%. The most common complications are local infection and bleeding.
95 The AAP task force was able to provide this low estimate of complications by screening the research with the requirement of a large series
study. It thereby avoided citation of an immediate complication rate of 4% on a smaller subject pool of 361 infants in Utah, published by researchers Thomas Metcalf et al. in 1983.96 The task force also neglected to report the phenomenena of late
complications circumcision--those that manifest themselves farther into the first year of the infant's life--which Metcalf et al. reported at the astonishing rate of 13%.98
Aside from omitting Metcalf's findings from its survey of published complication rates, the 1989 AAP report also misstated the results obtained by researchers William Gee and Julian Ansell in a 1976 retrospective study. The AAP apparently quoted a figure of 0.2% for really significant
complications from the article's discussion section and abstract, without examining the information provided in the main body of the article which gave an overall immediate complication rate of 2.0% for the subject pool of 5882 infants.99 Ignoring the 2.0% figure, the 1989 AAP report then implied that the 0.2% complication figure can be discounted further because it included the most common complications [which] are local infection and bleeding.
99 However the task force failed to acknowledge that Gee and Ansell had already removed what they considered minor infections and bleeding from their total complication rate of 2.0%, to arrive at the 0.2% figure.100 In compiling their data, Gee and Ansell noted that most complications were not indexed, and only by careful perusal of the nurses notes were they ferreted out.
101 Amazingly, Gee and Ansell's decision to focus on what they characterized as really significant
complications subsequently enabled the 1989 AAP task force to pare away many of the complications--complications that these two researchers had carefully ferreted out.
Aside from citing Gee and Ansell, in providing a complication range of 0.2-0.6%, the 1989 AAP report also cited two 1987 letters to the editor of Pediatrics.102 Thomas Wiswell, who had conducted the methodologically problematic UTI studies which had led to the task force's change of policy, estimated a complication rate of 0.3% from a review of 175,000 male births in Army hospitals over ten years.103 His findings were later reported, adter the 1989 AAP report was published, to be a complication rate of 0.19% of over 100,000 male infants from a six-year period.104 Similar to Gee and Ansell's discounting of an overall rate of 2.0% to arrive at a reported rate of 0.2%, Wiswell's low rate, reviewer Thompson noted, may have also been due to a restrictive filtering and defining of complications as only those complications specifically recorded as such
by medical persononnel.105 The upper end of the 1989 AAP report's complication range came from another letter to the editor in a 1987 issue of Pediatrics, submitted by a physician who reviewed the records of 4000 births in his hospital over at two year period.106
The 1989 AAP task force displayed an unscientific selection bias in giving more weight to two letters to the editor--those of Wiswell and Harkavy--over the scientifically designed and published research of Metcalf et al. and Gee & Ansell. Presumably, the raw data and operations deficitions for complications of the Metcalf et al. and Gee & Ansell research were available for peer review by the AAP task force, whereas the data that Wiswell and Harkavy provided in their letters to the editor was not. Additionally, unlike George Kaplan's 1983 review of published literature on circumcision, the 1989 AAP report completely ignored complication rates gathered from other countries such as Canada, the United Kingdom, and Australia.107 The standard of medical care in those countries has to be comparable to that in the United States. To avoid an appearance of selection bias, researchers findings from those countries should also have been included in the task force's investigation of physical complication rates.
In addition to the possibility of potentially devastating physical complications, circumcision has negative effects on behavior. Until the last couple of decades, the widespread belief was that an infant was either incapable of perceiving pain, or that, because such pain would not be remembered, it had no effect on behavior.108 The 1989 AAP task force, unable to avoid addressing this misconception concerning infant cognition, devoted a section of its report to infant pain.108 The 1989 authoritatively stated that infants can feel pain; it supported this conclusion with citation to the thorough 1987 review on infant pain authored by researchers Anand and Hickey in the New England Journal of Medicine.110
However the 1989 AAP report went on to state that while behavioral changes occurred, such as crying from surgical trauma, irritability, altered sleep and feeding patterns, and altered maternal-child social interaction, [t]hese behavioral changes were transient and disappear[ed] with in 24 hours after surgery.
111 There is a great difference between the statement that experimentally measured behaviors return to pre-operative levels and the report's summary section conclusion that [I]nfants respond[ed] to the procedure with transient behavioral and psychological changes.
112 In addressing the question of neonatal memory, the 1989 task force missed or ignored Anand and Hickey's warning:
In the long term, painful experiences in neonates could possibly lead to psychological sequelae, since several workers have shown that newborns may have a much greater capacity for memory than was previously thought… .long-term memory requires the functional integrity of the limbic system and disencphalon… these structures are well developed and functioning during the newborn period … [M]emory and learning depend on brain plasticity, which is known to be highest during the prenatal and neonatal periods. Apart from excellent studies in animals demonstrating the long-term effects of sensory experience in the neonatal period, evidence for memories of pain in human infants must, by necessity, be anecdotal. Early painful experiences may be stored in the phylogenically old procedural memory,
which is not accessible to conscious recall.113
This warning should have discouraged the task force from making any affirmative statements that circumcision has no enduring effects.
Indeed, during the 1980s, researchers had accumulated evidence of the remarkable abilities of infants to retain memory. In 1986, researchers Anthony DeCasper and Melanie Spence published the results of an experiment designed to to measure fetal and neonatal memory for speech sounds.114 They found that in utero subjects, who were read a target story twice daily by their mothers, would later as neonates respond perferentially to their target story as opposed to similar sounding stories, regardless of who recited it to them.115 By 1987 researchers had begun to see that the view that infants were incapable of experiencing memory or pain had more to do with the failings of researcher's study designs than it had to do with the failings of infants.116 the 1989 AAP task force should have at least investigated these studies and mentioned them in their report.
Additionally, at the time of the 1989 AAP report, information was available that neonatal pain experiences might have a deleterious effect on future behavior. For example, a 1985 issue of the Lancet contained an article that found a significantly higher percentage of adolescent suicides among subjects that had experienced respiratory distress at birth, compared to adolescents who experienced no problems at birth.117 A pattern of distressed behaviors, similar to those of of infants born at risk,
occurs during the trauma of circumcision.118 In another retrospective epidemiological study conducted in Sweden, researchers also found a significant correlation between the type of suicide method chosen by suicide victims and the type of complications they experienced at birth.119 Researchers of both studies dealing with adolescent suicide carefully pointed out the correlational, rather than causal, certainty of their findings.120
The lesson the 1989 AAP task force should have gleaned from these findings was that psychologists were only beginning to devise ways to measure infants' amazing ability for memory and its effects on later behavior. In view of these research findings, the 1989 task force either failed in its duty to investigate the state of knowledge on infant memory and perception or failed to report on its investigation. It also breached its duty of care to provide scientific guidance to physicians and parents, because it simply dismissed neonatal circumcision's behavioral effects as transient
and disappearing.
Returning to the physical issues surrounding the foreskin and circumcision, a logical scientific investigation should start with an inquiry into why nature created the foreskin. A short-lived paragraph in the 1984 AAP brochure Care of the Uncircumcised Penis described the protective functions of the foreskin and the adverse consequences of its loss after circumcision.121 That paragraph was deleted in subsequent printings of the brochure.122 The 1989 AAP report acknowledged, in its sections on local infections and STDs that certain clinical conditions are found more frequently in circumcised boys and men.123 It gave examples of meatitis, an inflammation of urinary opening, and nonspecific urethritis.124 However the AAP displayed a bias in favor of circumcision by altering its brochure for parents. The AAP also displayed bias in omitting the higher prevalence of meatitis and non-specific urethritis in circumcised men from its introductory and summary sections of the 1989 report, while supposed lesser rates of UTI and cancer.
The AAP task force did not inquire into nature's reasons for the foreskin, but some medical researchers are seeking to understand why the foreskin is more than just skin, continuing the efforts pioneered by the British researcher Douglas Gairdner in the late 1940s.125 In a 1997 article published in Mothering magazine, physician Paul M. Fleiss reviewed the accumulated knowledge about the specialized tissue of which the foreskin is made, and the functions it serves.126 A study in the British Journal of Urology noted that the presence of Meissner's corpuscles firmly separate prepucial [meaning of the foreskin] epithelium from true skin,
and that these specialized receptors are comparable with similar nerve-endings in the finger-tips and lips
127
Medical practitioners should have at least some knowledge of what it is they are surgically removing. However, for many years the AAP and the profession as a whole have viewed the prepuce as merely extra skin.128 To view the foreskin as a mistake of nature is analogous to attitudes formerly held concerning tonsils and adenoids.129 However, whereas the AAP has corrected the rush among physicians to surgically remove the tonsils,130 the AAP has failed to correct this same clinical mistake for the foreskin. The AAP should have inquired for what purpose nature created the foreskin before classifying it as a perilous mistake.
Any examination of the medical efficacy of circumcision should also have included some reference to cost-benefit analysis. The 1989 AAP report did not refer to or engage in, or call for any cost-benefit analysis. In response to the 1989 AAP report, physician Robert S. Thompson applied risk-benefit analysis to Thomas Wiswell's assertion that circumcision lessens the occurrence of UTIs.131 Thompson found that when accounting for Metcalf's 1% figure for late complications requiring surgical revision--which the AAP task force had failed to consider--Wiswell's UTI benefit would not outweigh the surgical risks, even accepting Wiswell's immediate complication rate at 0.2%.132 Two other economic cost-benefit analyses were published in 1991, but neither could find utility for routine circumcision in assessing essentially the same data that would have been before the 1989 task force.133
Prior to the issuance of the report from the 1989 task force, the AAP appears to have been aware of the necessity to justify circumcision, like any other preventive therapy, on a cost-benefit basis. This is demonstrated in the AAP's own publications. The AAP authored, in conjunction with ACOG, three book editions of Guidelines for Perinatal Care, in 1983, 1988, and 1992.134 Both the 1983 and 1988 editions maintained that there is no absolute medical indication for circumcision in the neonatal period
--thereby reflecting the findings of the 1975 task force.135 However, the 1988 edition mentioned the pending report from the AAP Task Force on Circumcision to be published the following year: the present policy...will be modified only if data conclusively demonstrates the value of the procedure.
136 Wiswell's methodologically problematic studies hardly qualified as data conclusively demonstrat[ing] the value of the procedure.
Nevertheless, the AAP, in the 1992 edition of Guidelines for Perinatal Care, adopted the view of circumcision's value reflected in the 1989 task force's report.137 Thus, the AAP as a whole, with respect to cost-benefit analysis, failed to scrutinize the 1989 task force report as it professed it would, and instead proceeded directly to disseminate its findings.
In the wake of the 1989 task force report and a decade of increasing controversy surrounding the medical practice of circumcision, the AAP issued the findings of a third Task Force on Circumcision on March 1, 1999.138 On the surface, the 1999 task force appeared to take a step toward opposing circumcision. It reported that the data was insufficient to endorse circumcision, and that the procedure is not essential to the child's current well-being.
139 The 1999 AAP report made no mention of cervical cancer. Thus, the AAP appears to have fully exonerated the foreskin for cervical cancer. Notwithstanding these improvements, the AAP devoted the overwhelming majority of the report, once again, to asserting that [e]xisting scientific evidence demonstrates potential medical benefits of newborn male circumcision.
140
Unlike the silence concerning cervical cancer, the 1999 AAP report, like its predecessor, links the risk of penile cancer to an intact foreskin. While evidence had accumulated since 1989 that clearly demonstrated that neonatally circumcised men were not immune to penile cancer, the 1999 report presented the strong association
and threefold risk
for developing penile cancer from foregoing neonatal circumcision as authoritative.141 The task force reported this elevated risk, notwithstanding its own admission that there have been few rigorous hypothesis testing investigations,
and it is difficult to estimate accurately the magnitude of this risk based on existing studies.
142
The 1989 presumption that neonatal circumcision provided virtual immunity from penile cancer was thoroughly refuted when a single 1993 study on subjects from the state of Washington and British Columbia found twenty-two cases of penile cancer among men circumcised at birth.143 This study, while surmising that circumcision status may play some role in the etiology of penile cancer concluded, at least some cases of cancer occur in circumcised men as well.
144 Some of these other conditions,
which all produced a higher risk for penile cancer than did lack of circumcision, included a history of genital warts, penile tear, penile rash, smoking and more than thirty sexual partners.145 Interestingly, in reporting the statistical effect of circumcision status, the authors only adjusted the results for the variables of age and penile tear, but not with the other concurrent variables.146 A statistical adjustment of the variable of circumcision status with the variables of the number of lifetime partners and a history of viral STDs was a necessity in order to assess fully the role of circumcision status, because the other variables were more strongly correlated with penile cancer. Still, due largely to these findings, the 1999 task force had to acknowledge that circumcised men get penile cancer, the the overall incidence of penile cancer is extremely low, and that other factors such as cigarette smoking, viral STDs, and sexual promiscuity are risk factors.147
Although the AAP report contained a sentence addressing the wide differences in penile cancer among countries where circumcision is not performed,148 the 1999 task force, like its counterpart in 1989, did not cite statistics gathered by the International Agency for Research on Cancer for the World Health Organization's publication, Cancer Incidence in Five Countries, vol. IV, from 1982, listed the non-circumcising Scandinavian countries reporting incidences of penile cancer equal to or less than the incidence in the United States.149 In volume VI, from 1992, this same publication listed the incidence of penile cancer in Israel and Japan--where Israel circumcises at birth while Japan does not--both with lower cancer rates than the United States.150 Because of this wide variation between nations, and the fact that the figures do not clearly group according to whether a country does or does not practice neonatal circumcision, it was untenable for the AAP to assert or imply that circumcision status was a casual variable for penile cancer. Genetic predispositions, exposure to causative agents, and cultural practices other than circumcision must account for susceptibility to penile cancer.
As with the long-standing suspected link between circumcision status and penile cancer, the possibility of a link between circumcision status was once again addressed in the 1999 AAP task force's report. The 1999 AAP report's section on STDs admitted that evidence for a possible relationship between STDs and circumcision is complex and conflicting.151 This complexity has increased since the 1989 report, because the 1999 task force had to address HIV, in addition to the other STDs.
Since 1989, circumcision advocates had added HIV to the list of STDs from which circumcision supposedly offered some protection. The 1999 AAP report focused on studies that asserted a prophylactic effect for circumcision against HIV, while ignoring evidence of methodological flaws in such studies.152 The report did not cite a thorough editorial review by researchers Isabelle de Vincenzi and Theiry Mertens, in the journal AIDS.153 This article noted that articles published on the geographical distribution of AIDS in Africa had used outdated data on circumcision from anthropological studies of rural areas written between 1930 and 1950.
154 This article detailed other methodological flaws in AIDS and circumcision studies such as a lack of distinction between susceptibility and infectivity, inadequote control for confounding variables, potential selection bias and misclassification of exposure, inappropriate choice of a comparison group, and publication bias.
155 De Vincenzi and Mertens further noted that the magnitude of the association, when present, varie[d] strongly between studies, and its crude measure [wa]s overestimated in some reports by the use of OR [odds ratio instead of RR [relative risk].
156 They found that this problem in the statistical measuring may have been misleading toward causality.
157 De Vincenzi and Mertens ultimately concluded that circumcision was not warranted as a measure to combat the spread of HIV.158
Returning to other STDs, the 1999 AAP report selectively reported only those findings suggesting circumcision's prophylactic effect. One example was the report's omission of the results reported in an article by researchers Laumann et al., which found a higher rate of chlamydia among circumcised men, while no higher STD rates occurred in intact men.159 Even though the 1999 AAP task force cited this article, it was only mentioned to support the general statement that the relationship of circumcision to STD in general is complex and conflicting.
160 Thus a reader of the report would be unaware that the Laumann article found that circumcision conferred no benefit against any STD, and may, in fact, have been a risk factor for contracting chlamydia. This was STD information that the 1999 task force should have included in its report.
While circumcision provides no clear benefits in protecting against the contraction of STDs, like the 1989 AAP report, the 1999 report found UTI prevention as the best reason to defend circumcision. However, by 1999, Wiswell's poorly designed studies were superceded by the less spectacular, but more reliable results of a 1998 article by a Canadian research team, which used a large prospective three-year research design.161 These Canadian researchers found that foregoing a neonatal circumcision produced a 3.7 relative risk of hospital intake for UTI over the first three years of a boy's life, which was much less than the 10.1 to 19.8 risk factor Wiswell had obtained in methodologically problematic retrospective studies.162
Moreover, unlike previous studies on circumcision and UTI, which addressed inpatient care, the Canadian researchers also examined physician billing records to estimate outpatient UTI treatment rates. Here, the heightened risk from not circumcising resulted in only a 1.73 relative risk for a UTI.163 The finding was that, for every circumcised infant admitted for UTI, there were 11 outpatient billings for UTI compared with five for the uncircumcised infants.
164 The article noted the lack of any information that UTI severity differed between circumcised and intact boys.165
The almost negligible relative risk observed in outpatient records may indicate that physicians were biased toward hospitalizing intact baby boys, instead of circumcised boys, for UTIs. Further research on physician treatment decisions for UTIs in boys might reveal that the treatment recommendations for intact boys include circumcision. This surgery would probably involve general anesthesia,166 due to the boy's age, and possibly also due to the awakened physician sensitivity for reducing behavioral disturbance to the attachment between the now communicative child and his parents. In contrast, the option of circumcision was already performed on the neonatally circumcised boys, so physicians might have required a more serious UTI before recommending hospitalization. The possible confounding effect of physician bias was left out of the 1999 AAP report. Likewise, neither the Canadian article nor the 1999 AAP report considered inappropriate physician, or parental forced retraction of the foreskin as a possible causal variable for UTIs in intact boys.
Potential confounding variables that might have intervened in measuring circumcision's effect on UTI rates, recognized in the 1999 AAP report, were prematurity, lack of breastfeeding, and method of urine collection.167 The report conceded that one Italian case-control study demonstrated that breastfeeding had a threefold protective effect on the incidence of UTI in a sample of uncircumcised infants.
168 In the next sentence, the 1999 AAP report appeared to hide the significance of breastfeeding by stating that breastfeeding has not been evaluated systematically in studies assessing UTI and circumcision status.
169 Assuming the 3.7 relative risk for UTI in foregoing neonatal circumcision, as Dr. David Alwin observed, a circumcision is an unfavorable preventive strategy since the protective effect of breastfeeding is roughly equivalent to that of circumcision but poses no risk.170
Contrary to the relatively large amount of new material regarding the supposed benefits of neonatal circumcision between 1989 and 1999, there was little new material published concerning circumcisions. Unfortunately, twenty-four years after the first AAP task force report on circumcision and a decade after the 1989 report, the AAP still could not authoritatively cite a complication rate for circumcision. The task force once again provided an estimated complication rate of 0.2% to 0.6%, citing the figures obtained by Harkavy and Gee & Ansell.171 First, the AAP again avoided or missed the fact that the Gee and Ansell study had already discounted the occurrence of what were considered minor (but signficant beyond the normal tissue trauma to warrant intervention and recording) complications.172 Second, following the AAP report's lead, the 1999 AAP report ignored the 4% immediate complication rate and the 13% late complication rate, published in the 1993 Metcalf article.173 the task force failed to take seriously the phenomena of surgical corrections of circumcision such as that which led to Dustin Evan's Jr.'s death in October of 1998, terming them isolated case reports
and failing to list death as a possible outcome.174 Finally, the 1999 task force completely ignored a comprehensive 1993 review of estimates for circumcision's complication rates authored by British researcher's N. Williams and L. Kapila.175 If the AAP task force had found the study's conclusion that realistic figure [for the complication rate] is 2-10 percent
176 was flawed, it should have at least cited the study and provided reasons for not crediting it.
Interestingly, in stating that the data are not sufficient to recommend
circumcision as routine care, the 1999 report essentially concluded that the risks of circumcision outweigh the benefits.177 The report, therefore, essentially admitted that leaving a boy intact could not be proven to be a sufficient risk factor for UTIs, STDs and penile cancer warranting the intervention of circumcision. However, the task force provided no cost-benefit studies or figures to support this ultimate conclusion. The 1999 AAP report did not cite Robert S. Thompson's 1990 UTI/circumcision risk/benefit analysis,178 yet Thompson's article would appear to support the report's conclusion that the data on the benefits of circumcision were not sufficient to recommend routine neonatal circumcision.179 After expounding for almost the entire length of the report on the alleged benefits of circumcision, the AAP incongruously concluded that the data was insufficient to recommend the procedure. The AAP appeared to be inviting physicians to credit a lengthy and heavily cited recitation of alleged benefits and to find the task force's brief and final recommendation insufficient. Due to the lack of cited support for the report's ultimate conclusion, it seemingly encouraged physicians to continue the amputation of normal, healthy, functional foreskins. One possible motive that could explain this approach was a disingenuous attempt to shield the AAP from liability while still listing medical sources supporting circumcision. The 1999 AAP report will likely result in the perpetuation of the cultural
preference for circumcision among medical practitioners and parents.
Unlike the paucity of new material coming from the medical profession concerning circumcision's true physical complication rates, in the decade following the 1989 AAP talk force report, psychological investigators conducted numerous studies and published a great deal on infant abilities in memory, including memory of pain. For example, in 1998, researcher Charles Nelso electronically recorded brain activity in infants during memory experiments.180 He discussed his results and reviewed various studies conducted in the 1990s, most notably that of psychologist Carolyn Rovee-Collier, which demonstrated that three-month-old infants can remember a picture for weeks after a brief exposure.181 Nelson came to the conclusion that infants have covert
long-term memory. even if there no overt evidence of such memory.
182 Proposing that more work should be performed measuring brain activity in infants, he expressed the hope that we may be able to examine how early life experiences come to shape our brain and ultimately our behavior.
183 However, the 1999 AAP talk force, like its predecessors, neglected to devote any meaningful effort toward examining the research on long-term behavioral effects of painful experiences in infancy.
The 1999 task force's omission of psychological research was all the more shocking in light of the findings of a 1997 article, which it did cite.184 Researchers Anna Taddio et al., demonstrated that neonatal circumcision increased the pain exposure of infants to vaccination at four and six months.185 This result held even for those boys given Emla cream as a pain prevention measure during their neonatal circumcisions.186 This article soundly proved that neonatal circumcision does have long-term behavioral aspects. Despite the results of this study and the task force's admission that even the most effective pain measure, the subcutaneous ring block, also failed to fully eliminate operative pain, the report concluded, analgesia is safe and effective in reducing the procedural pain.
187 Although the 1999 task force no longer claimed, like the 1989 task force, that behavioral effects are short-term and transitory, the 1999 task force's dismissive treatment of Taddio's findings was irresponsible.188 In light of these results, the 1999 task force should have instituted a literature search into long-term psychological effects of infant pain. This should have lead them to the findings of Jacobsen et al.,189 concerning choice of suicide method and its relation to perinatal pain.
Another moderation of the 1989 AAP position, but one that also failed to fully relate the evidence, was the 1999 taskforce's abandonment of circumcision as the treatment of choice for phimosis. The report stated, [m]edical therapy has been successful [i.e. medication] has been successful in resolving both secondary phimosis and paraphimosis, but surgical intervention is sometimes indicated.'190 An
article electronically published by the AAP itself, compared the phimosis treatments of topical steroids, prepucial plasty [surgery which does not amputate the foreskin], and circumcision for cost effectiveness.191 This article found topical steroid treatment to be the most cost effective and circumcision to be least cost effective.192 However, this article was not cited in the 1999 AAP report, nor did the report mention the non-circumcision surgical alternatives examined in this article.
The 1999 task force also unprofessionally dismissed the growing body of evidence that foreskin tissue has characteristics beyond that of regular skin. The report presented the research of J.R. Taylor as merely suggesting the presence of specialized sensory cells on the inner foreskin.193 The 1999 AAP task force report distinguished the foreskin from outer penile skin only because it did not characterize the foreskin simply as skin
.
However, although the 1999 AAP task force report in Pediatrics did not label the foreskin simply skin,
the AAP continues to refer to it simply as skin
in the information it provides to specifically to parents. At the AAP web-site, the online brochure Circumcision: Information for Parents omits any mention of the specialized tissues and structures that constitute the foreskin. The online brochure simply calls the foreskin, skin that covers the end of the penis.
194
This online brochure suffers from other mischaracterizations as well. The brochure presents a ten-fold UTI risk factor, reflecting the results of Wiswell's retrospective studies, rather than the more methodologically sound 3.7 relative risk figure.195 The online brochure downplays complications as rare and usually minor,
196 with no mention of the possibility of serious complications. The brochure neither presents complication rates, nor does it provide any explanation for the profession's lack of knowledge about such rates.
Additionally, in its section labeled Reasons Parents May Choose Not to Circumcise, the brochure overlooks the growing number of parents and professionals that consider infant male circumcision a human rights issue.197 This section also incorrectly characterizes the statement that the foreskin is necessary to protect the tip of the penis, as a belief.
198 However, the AAP disseminated a similar position as fact in the 1980s199 Likewise the word belief
in the heading appears to be strategically placed by the AAP so as to cast doubt on and downplay statistically proven informaton which relates to the increased risk for meatitis and meatal stenosis after circumcision.200 Additionally, the 1999 AAP online brochure erroneously claims that available pain measures are effective,
implying that they can eliminate the pain of circumcision. Additionally, the online brochure fails to advise parents that long-term behavioral effects have been demonstrated, the extent of which are unknown.
The 1999 AAP online brochure ends with a section on female circumcision. The brochure lists some of the cultural reasons why some immigrant parents from Africa desire the range of female genital alterations.201 It fails to mention that many medical practitioners, as well as parents form these cultures, assert unproven rationales of health and cleanliness--similar to rationales which are presented in this country in support of male circumcision.202
The AAP Committee on Bioethics published a 1998 position statement entitled Female Genital Mutilation (FGM) in which the AAP specifically encourage[d] its members to ... decline performing all medically unnecessary procedures to alter female genitalia.
203 There are varying degrees of FGM. However, the AAP noted that the rough equivalent to male circumcision, removing only the clitoral hood, as well as simply a ceremonial incising of any part of the female genitalia, would likely be held as violation of United States criminal law.204
This encouragement to practitioners was in congruence with the approach of another AAP Committee on Bioethics article on informed consent and parental permission in pediatric care ... .205 Similarly, the authors of Caring for Gravely Ill Children, also published in Pediatrics, were quite aware that professionals must maintain an independent obligation to protect the child's interests,
not those of the parents.206 Encouragement to place the best interests of the child over the cultural wishes of parents was justly present for any type of FGM, yet such encouragement to avoid surgery was utterly lacking from the now admittedly medically unnecessary alteration of male genitalia. The AAP apparently considered awareness of ethical conflicts, particularly regarding an awareness of to whom the physician owes a duty (the child, i.e., the patient, not to the parents), as pertinent in the case of an immigrant cultural practice such as female circumcision. This consideration appears to be considered by the AAP as immaterial in the case of our own culture's practice of not-medically-necessary infant male circumcision.
Ironically, what may have ultimately induced the grudging change in the AAP's policy on circumcision may not have been a sense of professional responsibility, but a growing sense of international professional isolation. The 1999 AAP task force cited position statements of Canadian and Australian medical organizations in 1996, which found no medical rationale for the support of routine infant male circumcision.207 The Fetus and Newborn Committee of the Canadian Paediatric Society examined and cited, existing cost-benefit analyses for circumcision in relation to UTI and penile cancer.208 Even with the inflated and flawed UTI risk information available in 1996, the Society recommended simply and clearly in the abstract of their report that [c]ircumcision of newborns should not be routinely be performed.
209
With an understanding of the scientific data available to the 1989 and 1999 AAP task forces on circumcision, analysis can now turn to the legal argument that the AAP breached a duty of care and should now be held liable for that breach. Tort law allows courts to examine the sufficiency of industry-wide practices and standards.210 This applies to the technical field of medicine.211 Some medical organizations have grudgingly acknowledged that a customary practice is not dispositive and can become obsolete.212 Part III(A) will engage in a theoretical examination of medical trade association liability. Parts III(B), III(C), III(D), and III(E) advance legal foundations on which to assess liability against the AAP for its negligent promulgation of obsolete standards to physicians and obsolete advice to parents concerning circumcision. Part III(F) presents evidence upon which a court could ascribe a self-serving motive, beyond mere negligence to the AAP's position on circumcision. Part III(G) discusses how some medical and legal professionals are organizing to oppose the medical practice of circumcision.
Professor Troyen A. Brennan of Brigham and Women's Hospital, notes, [p]ractice guidelines are standardized specifications for managing particular clinical problems and are intended to improved the outcomes of medical care by increasing adherence to standards of care.
213 He continues that [t]hey are also meant to make medicine more cost-effective by eliminating unnecessary procedures.
214 When a hospital, physician, or patient relies on practice guidelines issued by a medical trade association, does the patient harmed by treatment in accordance with the guidelines have a cause of action against the issuer of the guidelines if there was negligence in their creation?
Professor Arnold J. Rosoff formulated three possible theories for medical society liability.215 First is a theory of negligence while analyzing or translating experimental or review data.216 Second is using data that the developer knew, or should have known, were inaccurate or insufficient.
217 His last theory of medical society liability is for failing to keep its guidelines continually updated and [to] replace obsolete standards as technology and knowledge move forward.
218 On this last basis, Rosoff notes that courts appear more likely to enforce revision in response to new knowledge, as opposed to new devices, because no monetary outlay would be necessary.219 the previous parts of this note, Part I (Circumcision and Medical Practice under the 1989 AAP Report) and Part II (The 1999 AAP Report), should have sufficiently raised, if not answered, a question of fact concerning the AAP's failure in each of these three areas.
When a plaintiff suffers from complications due to a circumcision, the AAP could be named as a codefendant along with the hospital and physician. This could be done under the rubric of negligence as applied to the following factors: (1) in establishing the standard of care; (2) for endorsing the uncertain medical benefits of this procedure; and (3) for neglecting to note and explain the known and possible adverse effects. Alternatively, the suit could stem from a lack of informed consent.
However, Brennan envisioned four practical obstacles for plaintiffs seeking to impose liability on medical associations that issue guidelines, such as the AAP. First, courts tend to restrict the duty of care to the treating physician.220 Second, courts might be concerned that imposing liability could dissuade potential guideline issuers from promoting the general health of the public.221 Third, courts might balk at imposing liability for a guideline which is arguably only a review article
that may have failed to consider all aspects of a particular question.
222 Fourth, if the guideline issuer is a governmental entity, the Federal Tort Claims Act probably precludes liability.223
A ground-breaking decision, which assessed tort liability upon a medical trade association for negligently disseminated guidelines, despite the obstacles envisioned by Brennan, was Snyder v. American Ass'n of Blood Banks,224 handed down by the New Jersey Supreme Court in 1996. In August of 1984, the plaintiff, William Snyder, contracted AIDS from a blood transfusion with contaminated blood.225 At the time of the transfusion, there was no test that could detect HIV in donated blood.226 However, a surrogate testing procedure for hepatitis B contamination of blood showed promise for identifying blood donors who had contracted AIDS and potentially could transmit it through their blood.227 Unfortunately, the American Association of Blood Banks (AABB) rejected adoption of the surrogate testing.228
The New Jersey Supreme Court, in Snyder, examined and ruled against each of the four obstacles to liability discussed in Brennan's article when the AABB raised them as defenses. The court framed Brennan's first obstacle, the treating physician defense, as the argument that the AABB had no immediate connection with either the donor or with Snyder.
229 Citing prior New Jersey case law, the court formulated the rule to say:
The determination of the existence of a duty ultimately is a question of fairness and policy … . [I]mportant are the nature of risk posed by the defendant's conduct, the relationship of the parties, and the impact on the public of the imposition of a duty of care … . The absence of a contractual or special relationship is not dispostive.230
The court noted that, [b]y words and conduct, the AABB invited blood banks, hospitals, and patients to rely on the AABB's recommended procedures,
and thus the absence of a contractual relationship was not dispositive.231. The treating physician defense did not help the AABB escape a duty of care to patients who were treated by hospitals and physicians, because these patients were receiving blood products pursuant to standards promulgated by the AABB. The AABB knew that these standards were widely followed by hospitals and physicians.232
It is possible to apply the Snyder court's reasoning, concerning the treating physician defense, to the 1992 edition of AAP Guidelines for Perinatal Care, which reflects the 1989 AAP task force report's policy on circumcision, as will as to the 1989 report itself. Contained in each edition of the guidelines is the disclaimer: The guidelines should not be viewed as a body of rigid rules. They are general and intended to be adapted to many different situations, taking into account the needs and resources particular to the locality, the institution, or type of practice.
233 Notwithstanding this disclaimer, if a plaintiff can show direct reliance on these AAP publications, or that hospital administrators and physicians relied on such information provided by the AAP--as the dominant source of analysis and research in the fields--then the AAP should be held liable for negligently crafting recommendations.234
Kimberly J. Todd, in her article in the University of Toledo Law Review, noted that the evolving use, by plaintiff patients and defendant physicians, of practice guidelines as evidence of the standard of care should alert a medical society to the foreseeability of harm if those guidelines prove faulty.235 Todd noted three medical malpractice cases involving individual physicians and hospitals where AAP guidelines were used as either exculpatory or inculpatory evidence of the standard of care.236 Thus, by the AAP having at least constructive knowledge of hospital and physician reliance, the lack of privity of contract between a parent who chooses to circumcise and the AAP can be overcome.
The Snyder opinion also confronted Brennan's second obstacle to extending liability: the possible reluctance of medical organizations to issue guidelines out of fear of future liability.237 As it was stated in the Snyder opinion, extraneous concerns should not have diverted the AABB from its paramount responsibility to protect the safety of the blood supply.
238 It went on to state:
Recognition of that responsibility should have led the AABB to consider more carefully the risks to recipients from the transfusion of infected blood. When balanced against the devastating risks from a disease such as AIDS, the imposition of a duty of care on the AABB does not, in our opinion, offend the public policy favoring open debate on controversial issues.239
Thus, the court concluded that the balancing of various factors inherent in its test concerning liability would not chill open debate in scientific circles, but would instead spur responsible scientific consideration of effects on the public.240
The paramount responsibility of the AAP is promoting the health of children. As the AAP's own mission explains the organization's purpose, it is to obtain optimal physical, mental, and social health and wellbeing for all infants, children, adolescents and young adults.
241 The AAP's mission is not to satisfy the extraneous concerns of parental or physician choices in esthetics, religion, cultural attitudes, social pressures, and tradition.
242 The AAP should inform the public of its failure to find clear medical benefits from this surgery, while fully disclosing the risk of adverse outcomes known to occur. In sum it should discontinue the classification of this surgery as acceptable medical care for infant boys.
Returning to the obstacles Brennan's article raised concerning trade association liability, the Snyder opinion also addressed Brennan's third impediment: that of expressing an opinion on a medical uncertainty.243 The court ruled that [t]he foreseeability, not the conclusiveness, of harm suffices to give rise to a duty of care.
244 The court then found that the evidence supported the factual finding that the AABB knew or should have known that AIDS could be transmitted by blood, and therefore there was a foreseeable risk that a recipient of a blood transfusion could contract the disease from donated blood.245
An analysis of the foreseeability of harm from the AAP's failure to disavow circumcision, therefore requires a focus on the issue of complications. While the sampling methods and operational definitions in existing studies of complication rates are problematic, these methodological problems do not affect the fact that circumcision indisputably poses some risk of harm. The scientific disputes over these studies involve the numerical magnitude of the rates, not the existence of complications. Likewise, in analyzing complications, knowledge of the extent of the types of harm is expanding as researchers discover more about the structural and functional characteristics of the foreskin. Thus, as time passes and knowledge accumulates, it becomes more and more foreseeable to the AAP that circumcision can cause great harm.
Conversely, the existence--not just the magnitude--of the possible benefits from circumcision is in dispute. In examining the benefits, the 1989 AAP's report's crediting of five methodologically unsound studies--which asserted a causal link between lack of circumcision and STD rates--over one methodologically sound study finding no relationship--or possibly an inverse relationship--is negligent scientific analysis.246 A large number of studies on circumcision exist. However, it was and is the AAP's responsibility to base recommendations on methodologically sound material among those studies because that is how science works. The dilemma of scientifically data on circumcision was much simpler for the AAP to resolve, than was the dilemma of evaluating the many unknowns residing in the newly emerging research into whether AIDS was transmitted through blood, which the AABB had to resolve. Therefore a court should more readily impose liability in a potential suit versus the AAP, due to the many years of research and the established scientific methods for evaluating the findings.
The AABB in Snyder also raised Brennan's fourth obstacle, a possible qualified immunity defense.247 The court dismissed this defense, however, noting that the AABB did not contract with a government agency, and that mere mention of AABB standards and inspections by a governmental agency could not create qualified immunity.248 Finally, the court addressed a related defense of charitable immunity. The court found that the AABB could not meet the state statutory requirement of being organized exclusively for charitable purposes
because the organization promoted the interests of its dues paying members.249
Like the AABB, it is unlikely that the AAP could successfully claim charitable immunity. The AAP has a standing committee on medical liability with responsibilities that include monitoring federal and state legislation concerning medical liability and developing legislative strategies to change current state laws through the development and dissemination of model bills.250 This would appear to promote the business interests of its dues-paying members. In Snyder, Justice Pollock wrote, [o]ur opinion does not visit liability on the AABB because it was on the wrong side of a scientific debate… .
251 He further stated, concerning professional associations involved involved in public health care, [t]he association's commitment to public health should not immunize them from liability for the negligent discharge of their obligations. Nor should the associations enjoy immunity when they [1] stubbornly reject persuasive evidence, [2] unreasonably prolong the debate, and [3] fail to inform their constituents of threats to the public health.
252 The 1989 and 1999 AAP task forces engaged in all three of these practices to some extent. The task forces failed to cite many methodologically sound studies adverse to the practice of circumcision, debated the efficacy of circumcision for decades, and failed to inform parents of the full range of complications. Thus, the AAP sh7ould not enjoy charitable immunity. Analogizing from Snyder, the AAP should be held liable for the negligent promulgation of standards for the profession.
Under similar facts, the Supreme Court for New York County, in Weigand v. University Hospital of New York University Medical Center,253 followed the reasoning of Snyder in imposing a duty of care on the AABB.254 However, the plaintiff in Weigand also alleged a failure to advise about alternative sources of blood and a failure to warn of the risk of transmission of HIV through blood.255 The court dismissed these informed consent causes of action against the AABB, and held that informed consent duties concerning the safety of the blood supply resided only with the hospital and physicians.256 In this case, the treating physician defense was successful against causes of action based on informed consent.
It is possible to distinguish the facts surrounding AABB in Weigand from the facts surrounding the AAP in potential circumcision liability cases. The AAP publishes and sells a brochure, specifically for parents, entitled, Circumcision: Pros and Cons.257 The AAP must realize some economic benefit through the sale of this brochure and others, even though the AAP is a non-profit organization.. Additionally, the AAP has knowingly introduced its information directly into the decision making process of parents by making it directly and indirectly available to parents, either online or in doctor's offices. Thus the AAP has created a professional advisory relationship between itself and parents on medical matters and should be held accountable if its recommendations are both formulated in a scientifically irresponsible manner and produce harmful results.
Therefore, under the reasoning of Snyder and Weigand, the AAP should be held liable for failure to obtain informed consent for every infant who undergoes a circumcision and whose parents can show that they would have made a different decision had the AAP provided full and accurate information on complications as well as the benefits of leaving a child intact. The loss of a healthy foreskin is an injury that can produce a damage award.258 A judgment and award for damages is even more appropriate where a child suffers complications, and parents can show that the particular complications were omitted from the AAP materials on which they relied.
The holding of the Snyder case reflected reasoning contained in section 324A of the Restatement (Second) of Torts. The language of section 324A, Liability to Third Persons for Negligent Performance of Undertaking, is as follows:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.259
The first issue under a section 324A analysis is whether a duty of care exists. That the information provided to the other party be necessary
to protect the third party, presents problems of interpretation.
Ralph Wellington and Vance Camisa, in an article in the Wayne Law Review, examined decisions involving trade association liability and product safety standards and found that courts could read the necessity requirements liberally.260 Wellington and Camisa cited a California case which found that since a trade association had specifically
undertaken a duty when the association tested a member company's perlite ores for dangerous toxic substances, … it was 'reasonable for [the trade association] to believe that [all of] its members [would] rely on the tests.'261 These authors also cited a United States district court case applying Pennsylvania law which found contractual permission, rather than obligation, in inspect a workplace as sufficient to impose a duty of care upon a trade association., once it had negligently performed an inspection.262 Although the AAP has no obligation to pediatricians to review the state of knowledge on issues in pediatric care, it has gratuitously undertaken a mission to do so. It would be reasonable for a court to find that AAP information on circumcision may become necessary for the protection of patients when an individual pediatrician is unable or does not throughly investigate all the available medical literature on this surgery and instead relies on an AAP investigation.
Kimberly J. Todd examined the issue of a liberal duty of care and cited an Alabama case that excluded a trade association's lack of control of its industry from the analysis.263 The court found that even though the voluntary standards represented the prevailing opinion of members of the association, the association recognized that the safety of third parties was the reason for making the standards.164. Thus, the association was charged with foreseeability of harm to those third parties once the problem was analyzed and the standards were adopted without reasonable care.265
Indeed, trade associations are already aware of exposure to liability for negligently promulgated standards disseminated to its members. In addressing tort liability, the Association Law Handbook, published by the American Society of Association Executives, warns:
Even when it does not seem that the association intended to be responsible for advice given by others or endorsements of the products and services of others, the association could be found to have assumed the responsibility, such as through helping to determine what advice would be given or through testing the products or services endorsed.266
It would be absurd for the AAP to deny that it undertook a duty of care to parents and a duty necessary for the health of infants when it chose to investigate circumcision and disseminated its findings directly to parents as an authoritative professional opinion.
Once a court acknowledges a duty of care, plaintiff must still demonstrate proximate cause in order to prevail. Subsections (a), (b), and (c) of section 324A of the Restatement of Torts set forth the methods for demonstrating causation. For purposes of examining the AAP's conduct, subsection (b) is inapplicable because Comment d and its illustrations appear to require an explicit contract between the principal parties for the performance of a duty owed to the third party.267 Therefore, a potential plantiff, in a case against the AAP, would have to demonstrate proximate cause under subsections (a) or (c).
Subsection (a) requires that the failure in the duty of care increases the risk of harm.268 The AAP's change in position from the 1975 report to the 1989 report could sufficiently show an increase in the risk of harm. Without scientifically adequate bases for the change in recommendation concerning circumcision, the AAP increased the risk by influencing readers to elect an unnecessary surgical risk. Wellington and Camisa found a court which applied the subsection (a) causality test when the court denied summary judgment, finding that the [trade association] drew its conclusion without reasonable care, thus increasing the risk of harm to the plaintiff through its recommendations.
269 Therefore, the AAP's conduct could meet a test for causation of harm under subsection (a) of section 324A.
The last method of establishing causation through the use of section 324A is by demonstrating subsection (c)'s requirement of reliance.270 If a hospital, physician, or patient can prove reliance upon the recommendation of a medical society and can show that this reliance resulted in injury, then the plaintiff could establish causation. Wellington and Camisa note that it may be difficult for an employee to demonstrate reliance because the employee may not be aware of the trade association whose member supplies products to his employer.
271 Likewise, an infant patient and his parents may often be unaware whether a hospital and its physicians relied on analysis supplied by the AAP. Therefore, this should be a question presented to the defendant during recovery.
However, parents may very well base their decision on information obtained directly from the AAP. The AAP, by virtue of the fact that it sells its Circumcision: Pros and Cons brochure in bundles of 100 costing twenty-five to thirty dollars, effectively creates a situation where physicians, hospitals, and individuals can buy the brochures and distribute them directly to parents.272 Thus the third parties--the parents--are made aware of the recommendations of the trade association--the AAP. The AAP has survey data that show that only 74.1% of pediatricians discuss circumcision with parents.273 A sizable percentage of parents may be making a decision on whether to circumcise without direct input from a physician and perhaps based only on the information contained in brochures supplied by the AAP. Oddly, in the AAP's survey, it did not ask pediatricians whether they relied on AAP advice, provided it to parents, or knew whether parents had made their decisions based on AAP materials. By virtue of the fact that the AAP is a medical
organization made up of pediatricians, parents could be justified in treating these brochures as medical advice.
Although the brochure ostensibly presents the issue of whether to circumcise as a decision for parents to make after consulting with their physicians, certain inaccuracies and omissions appear to be designed to induce parents to choose the surgery without bothering to ask their pediatrician. The first line begins, Circumcision is one of the oldest known surgical procedures in medicine.
274 This statement implies that the practice of this surgery is normal, well-established, and therefore not worthy of concern. This statement also inaccurately implies that Muslims and Jews practiced circumcision in antiquity for medical reasons. Both implications are false.275
Next, while the AAP admits circumcision to be far less common worldwide,
276 the AAP fails to mention that only a minority of males worldwide are circumcised.277 The brochure warns parents that if they choose not to circumcise they may need to explain their choice to their son later.278 However, considering the growing number of medical practitioners and parents choosing and advocating against this surgery, the same warning to parents that they will have to explain to their sons why they did not choose to circumcise.279 The AAP's warning to parents that they will have to explain to their sons why they did not choose to circumcise is an inappropriate scare tactic designed to induce parents to make a decision without learning of the considerable medical debate surrounding circumcision.
Under the section of the brochure concerning reasons to circumcise, research studies
in support of the practice are mentioned.280 However, in the section dealing with reasons not to circumcise, the AAP neglects to mention that there are research studies that do not support and even warn against the procedure, for physical, mental health, and ethical reasons.281 By its failure to list further sources of information (pro and con) about this procedure, the brochure gives the impression that the AAP position is representative of the views of all medical professionals, which is not the case.282 For all of these reasons, the brochure invites parents to rely on it alone as the only necessary information they need to make an informed choice whether to circumcise their sons or not.
Therefore, under section 324A of the Restatement (Second) of Torts, the AAP, gratuitously or for consideration, renders research services directly to parents and physicians necessary for the protection of infant boys. The AAP's failure to follow fundamental scientific procedure--placing experimental methodology first in evaluating the significance of results, as well as taking care to find all pertinent material--constitutes a failure to exercise reasonable care. This failure to exercise reasonable care results in an increase in the risk of harm to infant boys, because infants can suffer harm from circumcision due to the reliance parents upon the AAP.
Recently, a California Court of Appeal, on facts similar to those in the Snyder case, chose not to assess liability on the AABB.283 In N.N.V. v. American Ass'n of Blood Banks, (N.N.V.
), an infant born on September 23, 1984 underwent surgery to correct a congenital heart defect two and a half months later.284 It was afterwards discovered that the blood used for N.N.V.'s surgery was HIV positive.285 The appellate court upheld summary judgment for the AABB, holding that the AABB owed no duty to N.N.V. to adopt particular standards.
286 It further noted that even if a duty of care existed, the plaintiff had failed to raise any triable issues of fact showing that the AABB acted unreasonably in rejecting recommendations given the scientific and medical knowledge available at the time.287 In examining the duty of care, the court used the rule that in a particular case, public policy and other considerations may lead a court to conclude no duty of [of reasonable care] toward the plaintiff existed.
288 These other considerations consisted of:
(1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of he connection between the defendants conduct and the injury suffered, (4) the moral blame attached to the defendant's conduct and the injury suffered, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care … (7) and the availability, cost, and prevalence of insurance for the risk involved.289
Considerations 1 and 3 through 6 are pertinent for examining the argument that the AAP has, and has breached, a duty of care with regard to its recommendations for circumcision. This part of this Note will demonstrate that even assuming N.N.V. was correctly decided and Snyder incorrectly decided concerning the existence and performance of a duty of care by the AABB to recipients of blood products in the early 1980s, the facts surrounding the AAP and circumcision are distinguishable.
The N.N.V. court noted that while it may have been foreseeable to the AABB that AIDS could be transmitted through blood and blood banks would follow its recommendations, the claim against the AABB necessitated a showing that the AABB was negligent in not recommending three procedures to screen the blood supply.290 These procedures were direct questioning of blood donors' sexual preference, directed donations for patient-selected donors, and surrogate testing of blood for the presence of hepatitis B antibodies.291 The court quickly disposed of the claims that the AABB should have recommended direct questioning and directed donations, noting the lack of any studies in 1984 which supported either of these methods of screening the blood supply.292
However, as the Snyder and N.N.V. opinions outlined in their reviews of the research history, there was growing evidence throughout 1983 and 1984 that AIDS was transmitted through blood products and some blood banks had begun surrogate testing.293 The Snyder opinion also focused on recommendations by the AIDS Task Force of the Centers for Disease Control at meetings with the AABB that surrogate testing be adopted, and on AABB internal memos essentially admitting that that AIDS transmitted during blood transfusions.294 Although the Snyder court found the evidence sufficient to make the likelihood of harm foreseeable to the AABB, the N.N.V. court found the evidence unclear as to the foreseeability of harm.295
With circumcision and the AAP, the foreseeability of harm to infants is known, because complications do occur. More importantly however, both the 1989 and 1999 AAP task forces chose to ignore and/or to downplay evidence of the loss of specialized tissue in the foreskin and the occurrence and evidence of long-term behavior effects. Many studies were available to the AAP at the time of each report, and a potential plaintiff could raise a triable issue of fact as to why the AAP either ignored or downplayed the findings.
The N.N.V. court ruled that the plaintiff had presented no evidence that either direct questioning of the donor, or surrogate testing of his blood, would have presented the donor from donating blood used for N.N.V. surgery.296 Nor did the plaintiff present evidence that all of the family or friends who might have been potential directed donors were free from HIV.297 Thus the court ruled that N.N.V. had failed to establish the third requirement of the test for imposing a duty of care, that of a close connection between the AABB's refusal to adopt methods suggested by the CDC's AIDS Task Force and N.N.V.'s contraction of AIDS.298
In a potential case against the AAP for negligence in its recommendations concerning circumcision, unlike with blood donation, there would be no range of choices. The choice involved would be either to circumcise or not to circumcise. This would approximate a choice to transfuse or not to transfuse. A proper analogy, from the identity of the blood donor in the N.N.V. transfusion case, to a potential case involving circumcision, would be to a choice among devices for accomplishing circumcision. Nether the 1989 nor 1999 AAP task forces have expressed much concern about meaningful differences among these devices.299 Thus the plaintiff would merely have to show that the parents would have avoided the harm by choosing not to circumcise.
As to the fourth requirement, that of moral blameworthiness, the N.N.V. court noted that AIDS was a very new issue under scientific investigation, and that N.N.V. did not establish what
300 Thus, the court ruled that no moral blame should be placed on the AABB.301 With circumcision and the AAP, however, the controversy is not new and there is plenty of known medical science which the AAP apparently did ignore. Thus, a court could easily attach moral blame to the AAP's actions.known medical science
the AABB was ignoring.
The court in N.N.V. dismissed the fifth and the sixth considerations, the policy of preventing future harm and the burden on the defendant, with the argument that the AABB could not be penalized for choosing he wrong side in a freshly emerging scientific debate.302 The court further lamented the situation where the standard of care should ever be evaluated by the ad hoc judgments of a lay judge or lay jury or lay jurors aided by hindsight.
303 However, the court failed to recognize that the plaintiff was probably not seeking a determination that the AABB chose the wrong side in a scientific debate, but that the AABB allowed the unscientific motivations of cost and supply of blood to inflame its choice.304 As the United States Supreme Court opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. observed concerning the admissibility of scientific evidence, [t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
305 Additionally, contrary to the rule cited by the N.N.V. court, there is a strong legal tradition of allowing expert testimony to challenge the prevailing standard of care.306 It is proper for a fact finder to hear expert testimony on the scientific method, view the available scientific evidence, and then to decide whether the standard-setting defendant, in its establishment of the standard of care, acted with scientific or unscientific motivations. The N.N.V. court recognized this principle in its mooted examination of the breach of a standard of care.307 The court would have held the AABB in breach if it had failed to use the knowledge, skill, and care ordinarily exercised by members of the relevant community.
308
In a potential case against the AAP for its position on circumcision, the claim would not be based upon the assertion that the AAP made the wrong choice is a scientific debate. The claim would be that in establishing a standard of care and in issuing guidelines--the AAP failed to follow well established principles of scientific analysis. The AAP glossed over methodological problems and flaws in the UTI and STD research upon which it relied. It ignored research findings concerning complications, STDs, and cancer that contradicted its positions, instead of explaining why these findings should not receive credit. It misstated findings on complication rates such that they would support its position. Additionally, the AAP failed to pursue trails of evidence about behavioral effects of circumcision, physical characteristics of the foreskin, and possible monetary and vindictive motivations that may have influenced the proponents of circumcision upon whom the AAP relied.309
The opinion of Justice Amos in N.N.V., while concuring in not finding the AABB in breach of a duty of care, dissented from the majority,s refusal to hold the AABB to a standard of care.310 He observed that under the majority's refusal to apply a standard of care upon the AABB, the hypothetical result could occur whereby the AABB would not have been required to recommend the ELISA test for the presence of the AIDS virus in blood once it had become available.311 Justice Amos also noted that, without the imposition of a duty of care upon the AABB, monetary considerations of the members of the AABB
would likely influence the decision making process and may pose an obstacle to change or reconsideration of standards.312 Thus, one of the three judges on the appellate panel found it proper to impose a duty of care on the standard setting and guideline issuing activities of a medical trade association. In a potential case against the AAP, a court should similarly impose a duty of care upon the AAP as a guideline issuing trade association. Under the considerations used in the N.N.V. case, it should also find the AAP in breach of that duty of care for failing to analyze circumcision is a scientifically proper manner.
This Note has argued that the 1989 and 1999 AAP's task forces's disregard for scientific protocol in analyzing the available data, led to negligent performance of a duty of care. This section, however, will analyze a potential intentional and fraudulent misrepresentation claim against the AAP, based upon the work of the 1989 task forces on circumcision. In 1983 Hugh C. Thompson, the chair the the 1975 task force, authored an editorial relating the deep and emotional division within the 1975 AAP task force.313 The forthcoming admission by the chair of the 1975 Task Force that there were deep divisions of opinion due to the information available at the time displayed an appropriate attitude toward the publishing of scientific findings. When the available information did not support a conclusion, it was appropriate to say that no conclusion was possible.314
In contrast, the bias of the chair of the 1989 task force, Edgar J. Schoen, was revealed in a 1987 letter to the editor of a medical journal.315 The letter contained a sarcastic poem that also appeared to impart veiled personal attacks on opponents of routine neonatal circumcision.316 This bias helps to explain all the misleading statements that appeared to induce faulty inferences in the reader.317
Also pertinent to an evaluation of the conduct of the 1989 AAP task force, is a law review article examining the role of medical guidelines which observed, [p]hysician specialists may realize economic gains when particular guidelines are promulgated.
318 The author, John D. Ayres, also warned, [p]atient selection bias and institutional and personal financial gains introduce 'subtle biases into the conduct, analysis, or reporting of research results that may escape even careful peer review.'
319 Consequently, the author recommended, [c]omplete disclosure of economic interests is parameter development must be included within the body of the guideline. Medical specialty societies, insurers, physicians, or any party that participates in guideline formation should acknowledge any economic self-interests inherent in the procedures that might be incorporated into a guideline.
320
There is evidence--on which to build a case--that the AAP, as a representative of pediatricians who collectively stand to gain, had a monetary stake in promoting the continuation of circumcision. A 1987 article, quoted Dr. Thomas Wiswell--the author of the late 1980s articles reporting lower UTI rates among circumcised baby boys as saying, I have some good friends who are obstetricians outside the military, and they look at a foreskin and almost see a $125 price tag on it.. Each one is that much money. Heck, if you do 10 a week, that's over $1,000 a week, and they don't take that much time.
321 Both obstetricians and pediatricians perform circumcisions and therefore stood to gain economically from the continued practice.
A reasonably prudent medical society, with the health interests of infant boys as a main concern, should have taken notice of this statement by Dr. Wiswell. It should then have been hesitant to base its change of position on his research especially once it recognized methodological problems in the research. Circumcision, a medical procedure without any evidence of a benefit to health, should have been classified as experimental. Once proponents of the procedure displayed an acute awareness of monetary reward, the AAP could have further downgraded circumcision to a purely cosmetic--and possibly harmful--procedure, with all the ethical permutations this would have toward parental consent.322
The AAP's choice in ignoring the obvious and vociferous bias of Dr. Schoen, and further choice in placing him as chair of the 1989 task force, is evidence that the AAP was more interested in buttressing the continued practice of circumcision than in objectively evaluating scientific evidence. Then, to base a change in policy on the new evidence
of Dr. Wiswell, when he seemed well aware of an industry monetary incentive to promote circumcision, and when the AAP task force had recognized methodological problems with his UTI studies, reinforces suspicion that the AAP let non-medical motives determine its recommendations. Finally, for the AAP to not disclose the monetary incentives that existed to promote the procedure is irresponsible and as is being argued here, possibly deceptive.
Some doctors and nurses have begun to organize and voice their opposition to the legitimacy of circumcision as a medical practice.323 Additionally, there is now an organization of lawyers committed to challenging the legality of circumcision.324 These professionals have challenged all infant circumcisions, medical or otherwise, on the basis of constitutional, criminal, and international human rights laws, and have offered their services to plaintiffs in civil cases against individual physicians and hospitals.325 This Note has proposed, however, that it has specifically been the AAP that has violated a duty of care by decades of erroneously and falsely touting medical benefits and lack of risks involved with circumcision.
It should also be noted that a jury can award meaningful damages for the removal of an infant's foreskin without the consent of the parents. David J. Llewellyn, an Atlanta attorney, wrote an article relating the facts and outcome of this 1992 lawsuit brought against the Jackson Hospital and Clinic in Montgomery, Alabama.326. Following a trial for the performance of the circumcision without the consent of the mother, a jury awarded $10,000 in past damages and $55,000 in future damages.327 Obviously, this jury was persuaded by the expert testimony presented that the pain suffered was compensable, and that the foreskin had value as a part of the child's body in his present and future life. This is helpful for any future action against the AAP involving a claim of lack of informed consent. Parents that can show that they would not have chosen to circumcise their son, had they known the full extent of complications and the functional value of the foreskin, should have a valid informed consent claim if they or their physician relied upon AAP materials.
The AAP, as a medical trade association, has an ethical and, as was argued here, a legal responsibility to provide accurate and truthful advice to the parents and physicians concerning circumcision and the health of baby boys. The 1989 report of the AAP Task Force on Circumcision was not an accurate and truthful accounting of the state of scientific knowledge concerning the medical efficacy of circumcision. The 1999 Task Force on Circumcision policy statement also has flaws and may likewise be culpable for failing to adhere to the generally accepted scientific and professional preference for valuing methodology in assessing the soundness of existing information. The responsible course of action for the AAP would be to admit that the evidence does not now support, and never has supported the continued routine performing of circumcision on infant males. The AAP should alert pediatricians and obstetricians that, collectively, they have been engaging in an irresponsible and century-long experimental effort to blame the foreskin for whatever illness can possibly be subscribed to it and to recommend the amputation of this body tissue as the necessary prophylactic. It is time for the AAP to stop perpetrating a history of flawed justifications for circumcision and to begin working to halt the practice. Like the AAP position taken for alterations on the genitals of female minors, the AAP and ACOG should officially encourage their members to inform parents that they will not perform painful and medically unnecessary procedures that alter normal, healthy, and functional genitalia.
In the alternative, assuming that the AAP, ACOG, and individual physicians can reasonably hypothesize beneficial utility that a century of research has failed to prove, circumcision should be reclassified as experimental and/or cosmetic surgery and thus be subject to all the laws governing such therapies. Parents who still choose this surgery for ther baby boys should do so only after a much more rigorous informed consent process. All infants who then undergo this surgery should be made part of nationwide prospective research studies into the complication rates and health results, pro and con, that this surgery holds for men. In any future brochures or publications on the subject, the AAP and ACOG should fully disclose the medical profession's succession of erroneous rationalizations used to justify circumcision for more than a century. Additionally, the AAP should disclose alternative sources of information, so that it does not convey to parents the false impression that there are no medical professionals who oppose, or who have opposed, routine circumcision of infants.
If the preceding actions are not undertaken voluntarily, the AAP and ACOG should be named as co-defendants in legal actions involving circumcisions that have resulted in serous injury or death. In addition to damages, claimants should seek injunctive relief to enforce upon these medical trade associations the responsible action called for under existing or new law reflecting the duties required under Section 324A of the Restatement (Second) of Torts. In all jurisdictions, courts and legislatures should be urged to adopt law embodying the reasoning of the New Jersey Supreme Court in the Snyder case. Whether or not serious injury occurred during a circumcision, parents who feel they were misled by information supplied by the AAP and physicians should explore causes of action based on lack of informed consent, negligent misrepresentation, and possibly even fraudulent misrepresentation.
Medical societies, like other trade associations, should not be insulated from judicial review for practices that they both recommend and engage in. Judicial scrutiny for the proper use of scientific method is a necessary safeguard for a public that consumers recommended or available medical services. This scrutiny must be applied in judging the motivations for, and processes of, decision making in standard setting medical organizations--such as the AAP--when they are engaged in publishing authoritative guidelines. As has been demonstrated above with regard to the AAP's analysis of circumcision, a professional medical organization may not always follow scientific methods, nor consider all the important variables, both of which can perpetuate an unnecessary or harmful standard of care within a specialty.
The AAP has failed to classify circumcision as experimental or cosmetic and to inform parents of the full and true nature of this procedure. If the AAP can in good faith, still permit routine circumcision to be called medical practice, it must call for, or itself fund and promote, thorough prospective studies of circumcision and obtain reliable information about this surgery. A tragedy, such as that which befell little Dustin Evans, Jr., should not fail to be ascribed to complication statistics for circumcision, through being classified as a rare consequence of anesthesia. Dustin Evans, Jr.'s death must be classified as a complication of circumcision. Absent responsible action, with the continued routine practice of this surgery, the AAP and ACOG may well find themselves named as codefendants--either by plaintiffs or by defendant physicians and hospitals--in every action brought for a botched or nonconsensual circumcision. Additionally, Attorneys for the Rights of the Child, and the groups of medical personnel opposed to circumcision, will undoubtedly continue to explore every legal avenue to put a halt to this unnecessary and harmful surgery.
As author Anne Briggs observed in her book Circumcision: What every parent should know, the vast majority of the men in both developed and undeveloped countries of the world are uncircumcised.
328 The American public should question why there is no outcry in these areas of the world for the supposedly proven heath advantages of the surgery. In 1980 Edward Wallerstein pointed out, Today circumcision is a solution in search of a problem.
329 This statement unfortunately still rings true twenty years later. The AAP, through a failure to follow scientific protocol, should not perpetuate harm on baby boys and their parents, in order to cover up past harm.
Anesthesia Complications Killed Baby: Three-Week-Old Boy Dies at Local Hospital (visited Nov. 2, 1998) ;The exact incidence of postoperative complications is unknown....).
sexual excess,which was thought to cause many diseases, including syphilis and other sexually transmitted diseases, as well as various abnormal mental and physical conditions).
not convincing,and that even if it might someday become convincing, proper hygiene could accomplish the same level of protection without the surgical risks).
quer[y] 18 American teaching hospitals,out of an approximate total of 7000 American hospitals, and construct a
not very reliableestimate of the overall circumcision rate. Id. at 28.
would offer all the advantages of routine circumcision without the attendant surgical risk).
To real scientists a finding of fact is only as good as the methods used to find it... Well designed methods permit observations that lead to valid, useful, informative answers to the questions that had been framed by the researcher... .Methodology--the logic of research design, measures, and procedures--is the engine that generates knowledge that is scientific... . While for lawyers and judges credibility is the key to figuring out which witnesses are speaking truth and which are not, for scientists the way to figure out which one of several contradictory studies is most likely correct is to scrutinize the methodology.
~ (emphasis added).
Apart from excellent studies in animals demonstrating the long-term effects of sensory experiences in the neonatal period, evidence for memories of pain in human infants must, by necessity be anecdotal. [C]urrent knowledge suggests that humane considerations should apply as forcefully to the care of neonates and young nonverbale infants as they do to children and adults is similar painful and stressful situations.
~ Id. at 1326.
See also Anthony DeCasper & Melanie J. Spence. Prenatal Maternal Speech Influences Newborns' Perception of Speech Sounds, 9 INFANT BEHAV. & DEV. 133 (1986) ([P]renatal auditory experience can influence post natal auditory preferences.
); Bertil Jacobson et al., Perinatal Origins of Adult Self-destructive Behavior, 76 ACTA PSYCHIATRICA SCANDINAVICA 364, 370 (1987) (finding that among 412 deaths due to suicide, alcoholism, and drug abuse, the chosen method of self-destructive behavior was statistically correlated to a similar type of trauma at birth). The authors explained:
The striking resemblance between conditions at birth and eventual adult behavioral disorders makes it necessary to consider the former as possible causative factors...[Salk et al.] suggest that the increasing rates of suicides in the United States are due to a decline in infant mortality rates... [because] infants who survived adverse perinatal conditions would be more vulnerable to environmental conditions eliciting suicide. Our results may suggest a somewhat different interpretation... .[I]t seems more likely that varying obstetric procedures cause iatrogenic [i.e., medically caused] injuries leading to eventual self-destructive tendencies.
~ Id. at 370; Lee Salk et al., Relationship of Maternal and Perinatal Conditions to Eventual Adolescent Suicide, LANCET, March 16, 1985, at 624, 627 (The findings of this study provide evidence that perinatal experience influences the risk of suicide in adolescence.
).
In the case of circumcision, in which there are potential benefits and risks, yet the procedure is not essential... .[i]t is legitimate for parents to take into account cultural, religious and ethnic traditions.).
intactwill be used throughout this note to refer to
uncircumcisedindividuals, because it more accurately reflects the fact that having a foreskin is the natural and, therefore, truly
normalcondition for men. The term
uncircumcisedcarries with it an implication that to be circumcised is natural and normal.
No significant differences were found in the circumcision status of marital partners of cases and controls.).
[t]he strongest predisposing factors in cervical cancer are a history of intercourse at an early age and multiple sexual partners. The disease is virtually unknown in nuns and virgins.), with WALLERSTEIN, supra note 1, at 99 (stating with attribution to sources critical of a circumcision correlation to cervical cancer, that
[n]uns rarely develop the disease, while prostitutes usually have a very high incidence rate.).
[f]actors other than circumcision are important in the etiology of penile cancer.).
[t]hat circumcision in infancy virtually guarantees immunity from penile carcinoma is a well known fact.Id. at 1520.
We should like to report a sixth case of carcinoma of the penis in a Jewish male circumcised eight days after birth.).
We assumed that virtually all of the reported cancers occurred in uncircumcised males. We therefore adjusted the rates for the estimated fraction of the population that was uncircumcised in each age group.)
We assumed that virtually all the reported cancers occurred in uncircumcised males. We therefore adjusted the rates for the estimated fraction of the population that was uncircumcised in each age group.).
[c]ancer of the penis does not occur in Jews circumcised at infancy. There is no case on records.) Leiter & Lefkovits, supra note 57, at 1520-21 (1975) (same). Both the 1989 AAP report and Leiter and Lefkovits cite to Wolbarst's statement, even after Leiter and Lefkovits reported six such cases.
There is presently no convincing scientific evidence to substantiate the assertion that circumcision reduced the eventual incidence of cancer of the prostate.).
Corrobarative Evidence for the Decreased Incidence of Urinary Tract Infections in Circumcised Male Infants, 78 PEDIATRICS 96 (1986); Thomas E. Wiswell et al. Declining Frequency of Circumcision: Implications for Changes in the Absolute Incidence and Male to Female Sex Ratio of Urinary Tract Infections in Early Infancy, 79 PEDIATRICS 388 (1987)).[s]ince the 1975 report …[p]reliminary data suggest the incidence of urinary tract infection in male infants may be reduced [by neonatal circumcision]); see also Robert S. Thompson, supra note 68, at 189 (claiming that
[l]argely because of these [UTI studies'] data, the [AAP] convened a task force on circumcisionto revise the statement of the 1975 task force)
to control for differences in the health-care-providing behavior of physicians,and the dropping of data which did not fit into the researchers' hypotheses).
NOCIRC ANNUAL REPORT 
1,8 Spring 1999). According to NOCIRC, an informal survey of pediatricians at the 1999 AAP national convention revealed that 22% did not know the proper care of the foreskin. Id. See also David J. Llewellyn, Legal Remedies for Penile Torts, THE COMPLEAT MOTHER, Winter 1995, at 13 (relating how that author's wife had to pull her son away from a pediatrician who was attempting to forcibly retract a boy's foreskin); Amanda Schneider, My Son Clayton (visited March 4, 1999) external cleaning with soap and water is all that is required … retracting the foreskin and cleaning beneatth it during his bath or shower.).
The best way to care for a child's penis is to leave it alone. After puberty, males can gently rinse their glans and foreskin with warm water.). This information mirros the common knowledge among women that a daily scrubbing with soap in the recesses of the female genitalia can be counter-productive.
Meatal Ulceration--urine burns that occur around the meatus because the foreskin is no longer there to protect it);id. at 204 (
Meatal Stricture--the narrowing of the meatus resulting from recurrent meatal ulceration); id. at 206 (
Hemorrhage--bleeding that can be minor or severe); id. at 208 (
Infection--which can be minor or severe); id. at 211 (
Concealed Penis-- a rare occurrence where the penile shaft retreats into the body requiring further surgery to correct); id. at 214 (
Urethral Fistula--an abnormal hole on the urethra which is not the meatus); id. at 217 (
Urinary Retention--blockage of urine flow usually the result of an overtight bandage); id. at 219 (
Excessive Skin Loss--resulting from the excision too much foreskin); id. at 221 (
Skin Bridge--a condition which results from the circumcision wound healing and adhering onto the glans); id. at 223 (
Laceration of Penile or Scrotal Skin); id. at 223 (
Preputial Cysts)--a fluid-filled sack on what remains of the foreskin); id. at 223 (
Vomiting and Apnea--trouble breathing); id. at 226 (
Keloid Formation--thick red scar tissue); id. at 226 (
Lymphedema--swelling of lymph vessels); id. at 228 (
Loss of Penis--in two cases the remedy chosen was penile reconstruction, in two other cases gender reassignment was chosen) (emphasis added).
[f]oreskin adhesions.
[p]oor hygiene,
[m]eatitis,and
[s]urgical revision,for a total of 13% of a subject pool of 230). The complication category of
poor hygieneis problematic. It appears to be simply parental dissatisfaction with the eventual appearance and the irrational fear of smegma. Id. at 578. Even subtracting this category from the complications list would leave a complication rate of 10%. See id. at 577 tbl.3 (substracting the 3% for
poor hygienefrom the table yields 10%).
[o]nly 14 complications (0.2%) are considered really significant--one life-threatening hemorrhage, four systemic infections, eight circumcisions of infants with hypospadias, and one complete denudation of the penile shaft.Gee & Ansell at 827. Complications included in the results which totaled 1.8%, but which were not accounted for in this
really significantlist included : hemorrhage at four to seventy-two hours after surgery requiring medical intervention; infection requiring care, and in four cases antibiotics; dehiscence;
[c]omplete separation of the penile skin from the mucous membranewhich had to be repaired with fine chromic gut; partial denudation (excessive loss) of penile skin in two cases which were left to heal up on their own; edema (swelling) and cyanosis (bluing from lack of oxygenated blood), resulting from incorrectly performed Plastibell circumcisions; urinary retention; and
superficiallaceration of the glans. Gee & Ansell at 825-26.
Risks for Circumcision During the First Month of Life Compared with Those for Uncircumcised Boys, 83 PEDIATRICS 1011 (1989) (reporting a complication rate of 0.19% for 100,000 infants)).the stringency of the criteria and recording practices of physicians involved).
notifiable complications)).
a widespread belief in the medical community that the human neonate or fetus may not be capable of perceiving pain).
The pursuit of such questions requires versitility and ingenuity in methodology, to say nothing of fortuity in opportunity.).
vagal toneas measured by comparing heart period with breaths per minute (see id. at 498-99 n. 2) during circumcision and finding the patterns comparable to those exhibited by
medically compromised infants).
self-destructive behavior has many roots. Here perinatal factors only are considered.) Salk et al., supra note 18, at 627 (noting
[m]any babies survive adverse perinatal conditions, and therefore we do not suggest a direct relationship between perinatal adversity and eventual suicide).
The glans at birth is delicate and easily irritated by urine and feces. The foreskin shields the glans; with circumcision, this protection is lost. In such cases [i.e., when circumcision is performed], the glans and especially the urinary opening can become irritated or infected, causing ulcers, meatitis, (inflammation of the meatus) and meatal stenosis (a narrowing of the urinary opening). Such problems virtually never occur in uncircumcised penises. The foreskin protects the glans throughout life.
~ Id.
[m]eatitis is more common in circumcised boys.And in the section doveted to STDs, admitting
higher incidence of nonspecific urethritis in circumcised men).
[I]s often observed that the prepuce is a vestigal structure devoid of function. However, it seems to be no accident that during the years when the child is incontinent the glans is completely clothed by the prepuce, for, deprived of this protection, the glans becomes susceptible to injury… . Meatal ulcer is almost entirely confined to circumcised male infants.
~ Gairdner, supra note 6, at 1434.
is the fold of skin covering the glans.).
having tonsils and adenoids removed was quite popular,but late observing that now physicians know
[b]oth the tonsils and adenoids make antibodies to help fight infections).
Nowadays, doctors know more about when this surgery is really needed and when it should not be done... . These days, the American Academy of Pediatrics considers surgery absolutely necessary only under the following conditions [of abnormal breathing, swallowing and speech].) The AAP's challenge to the old established practice on this other
non-essentialbut functional, normal, and healthy tissue should likewise have influenced the 1989 circumcision task force approach.
there is no absolute medical indication for circumcision in the neonatal period), with AAP GUIDELINES 1983 supra note 134, at 87 (
There is no absolute indication for the routine circumcision of the newborn.), with AAP 1975, supra note 10, at 611 (There is no absolute medical indication for routine circumcision of the newborn.).
Circumcision may also result in a reduced incidence of urinary tract infection, although prospectively collected data in this regard are lacking.) The AAP 1992 guidelines classify circumcision as an elective procedure. Id. UTI prevention is the only benefit mentioned in the paragraph on circumcision contained in the guidelines. Yet this uncertain benefit, reported by the 1989 task force, supra notes 66-72 and accompanying text, somehow qualified as the
conclusivelydemonstrated value that the 1988 guidelines professed to require of the 1989 task force report in order to change the AAP and ACOG's policy.
letter from two Vice Presidents of the American Cancer Society. See Fathermag.com, Letter from the American Cancer Society (visited Mar. 9, 2000) Portraying routine circumcision as an effective means of prevention distracts the public from the task of avoiding behaviors proven to contribute to penile and cervical cancer; especially cigarette smoking, and unprotected sexual relations with multiple partners. Perpetuating the mistaken belief that circumcision prevents cancer is inappropriate.
~ Id.
In addition, there is a substantial body of evidence that links noncircumcision in men with risk of HIV infection.) (citations omitted).
[a]s the safety, expected benefits, feasibility and acceptability of mass circumcision are all questionable ... [neither circumcision non controlled studies would be defendable options before there is stronger evidence from observational studies in different settings that show a lack of male circumcision may be a genuinely independent risk factor for the transmission of HIV).
The Urinary Tract Infection Myth Revealed (visited Apr. 30, 1999) really significantcomplications).
isolated case reports). Dustin Evans Jr.'s problem surely would have to be classified as a complication: at least urinary retention or a major surgical problem, not to mention his death. See supra notes 1-2 and accompanying notes 1-2 and accompanying text (relating Dustin Evans, Jr.'s story).
Cost-effective treatment of Phimosis, 102 PEDIATRICS 966, abstract e43 (1998) (abstracting the results of a study on treatments for phimosis); see also Robert S. Van Howe, Cost-effective treatment of Phimosis (visited Mar. 9, 2000) Cost-effective treatment of Phimosis (visited Mar.9, 2000) 75% savings compared with circumcision).
suggests that there may be a concentration of specialized sensory cells is specific rigid area of the foreskin but not in the skin of the penile shaft). This statement misapprehends Taylor's clearly stated results. See Taylor et al., supra note 127 and accompanying text (finding that the presence of nerve endings similar to those in the finger-tips
firmly separate the foreskin from true skin).
Circumcision: Information for Parents (visited July 25, 1999) online brochure, supra note 194.circumcised infant boys had a significantly higher risk of penile problems such as meatitis)), with AAP 1999
online brochure, supra note 194 (putting a spin on the statements that circumcision increases the risk of meatitis and meatal stenosis by leading with the word belief).
online brochure, supra note 194 (closing with a paragraph on female circumcision). http://www.aap.org/policy/re9749.htmlFemale Genital Mutilation, 102 PEDIATRICS 153 (1998). 18 U.S.C.A. § 116 (1998)). The text of § 116 is as follows:
Caring for Gravely Ill Children, 94 PEDIATRICS 433, 433 (1994). The author further stated, [T]he authority society gives parents to control their children's lives is not absolute. Because children are no longer considered the property of their parents, and society recognizes that children may have interests independent of their families, limits to parental authority are justified when necessary to protect a child's well-being.Id. at 434 (citation omitted).
Canadian Paediatric Society). Neonatal Circumcision Revisited, 154 CANADIAN MED. ASS'N J. 769, 775-76 (1996) (devoting two pages of the report to cost-benefit analysis and citing numerous cost-benefit analyses including those of Ganiats et al., supra note 133, and Robert S. Thompson, supra note 68). Neonatal Circumcision Revisited, 154 CANADIAN MED. ASS'N J. 769, 769 (1996).There are, no doubt cases where courts seem to make the general practice of the calling the standard of proper diligence, we have indeed given currency to the notion ourselves. Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
~ The T. J. Hooper, 60 F 2.d 737, 740 (2d Cir. 1932) (emphasis added). There may also come a time when an entire industry has lagged in not abandoning a practice or device.
The standard of care applicable to physicians in this state can not be conclusively established either by a reflection of what the majority of practitioners do or by a sum of the customs which those practitioners follow. It must instead be established by a determination of what is reasonable to expect of a professional given the state of medical knowledge at the time of the treatment in issue… . In most situations physicians like other professionals, will revise their customary practices so that the care they offer reflects a due regard for advances in the profession. An emphasis on reasonable rather than customary practices, however, insures that custom will not shelter physicians who fail to adopt advances in their respective fields and who consequently fail to conform to the standard of care which both the profession and its patients have a right to expect.
~ Id. at 272.
Plaintiffs can always, if appropriate, present evidence regarding the).state of medical scienceto show that a professional custom is obsolete or unreasonable.
doubtful that courts would find individual physicians paralyzed or rendered powerless by guidelines issued by medical or research institutions). However, this argument does not address a physician's possibly reasonable reliance on the analysis of his professional organization.
[e]xtending the duty to care to those third parties would chill their interest in an activity that benefits the general welfare,and that
product standard setting groups, can have duties to care,but,
there is usually some direct relationship between the third party and the product, as for instance when the third party inspects a specific product which later causes injury).
AABB [had] sought and cultivated … responsibility for the safety of blood and blood products,which induced treating physicians to rely on AABB standards).
The courts' decision to practice parameters indicates a belief that the medical societies which develop the parameters have a high level of influence over their members… . [A]ny medical society places itself in a position in which others rely heavily on its standards (to ensure the safety of their treatment ) should have a duty to act with due care when producing those standards.
~ Id. (citations omitted).
would chill [the medical associations'] interest in an activity that benefits the general welfare.). However, such activities can hardly benefit the general welfare if they are not conducted under the usual scientific protocols for evaluating data.
Committee on Medical Liability (visited Jan. 27, 1999) a special relationship between the parties, frequently involving an existing or potential economic benefit to the defendant).
[T]he fact that the standards promulgated by a trade association are based on a voluntary consensus of its members, does not, as a matter of law, absolve the trade association of a duty to recognize reasonable care when it undertakes to promulgate standards for the needs of the consumer.
The [trade association's] standards explicitly mentioned that they were for the needs of the consumer
and that safety was one of the primary considerations for which they were formulated. This, the court reasoned, made it foreseeable to [the trade association] that injury to consumers could result from its failure to act with reasonable care, thus creating a duty.
~ Id. (quoting King v. Nat'l Spa and Pool Inst., Inc., 570 So.2d 612 (Ala. 1990) (other citations omitted)).
a managing agent who … agrees with [the owner to maintain a building] …) Illustrations 2 and 3 to Comment d both involve employer-employee contracts.
Periodic Survey #37: Attitudes and Experiences Regarding Counseling on Circumcision (visited Jan. 23. 2000) medicalcircumcisions).
Doctors Opposing Circumcision (visited Jan. 29, 1999) R. N. Conscientious Objectors to Infant Circumcision: A Model for Nurse Empowerment (visited Jan. 27. 1999) National Organization of Circumcision Information Resource Centers (visited Jan. 27, 1999) N.N.V. v. Am. Ass'n of Blood Banks, 89 Cal Rptr. 2d 885, 892-93 (Cal. App. 4th 1999) (relating the facts surrounding N.N.V.'s surgery and use of HIV contaminated donor blood), with Snyder v. Am. Ass'n of Blood Banks, 676 A.2d 1036, 1038 (relating the facts surrounding Snyder's surgery and use of HIV contaminated donor blood).ridiculousand
alarming. Id. at 1045. The court's opinion also took note of internal AABB memos authored by Dr. Joseph Bove, chairman of the AABB Committee on Transfusion Transmitted Disease, one of which warned that
additional transfusion related cases will surface.Id. at 1046.
ample evidence supported the conclusion that blood transmitted the AIDS virus) with N.N.V. v. Am Ass'n of Blood Banks, 89 Cal. Rpter. 2d 885, 910 (Cal App. 4th 1999) (finding that conflicting evidence did not make it reasonably foreseeable to the AABB that surrogate testing of blood would have lessened the transmission of AIDS).
Clamp techniques (e.g., Gomco or Mogen clamps) or a Plastibell give equally good results.); id. (citing also to Gee & Ansell, supra note 98, at 827, for a lack of meaningful difference in complication rates between the two devices); see also RITTER, supra note 275, at § 2-4 (focusing on the harm of circumcision regardless of the device used).
We conclude the AABB conduct in recommending against direct questioning, directed donations and surrogate testing warrants no moral blame.).
Rather than institute measures to protect patients, … the AABB elected to pursue a course of action to merely diminish the perception of the danger of AIDS, and reduce questioning about the safety of the blood supply.).
509 U.S. 579, 595 n.11 (1993) (finding FED. R. EVID. 702 applicable to established as well as novel scientific techniques).[A]n expert is not permitted to) But see supra notes 210-12 and accompanying text (allowing challenges to the standard of care of an entire profession).second guess an entire professionas to what the standard of care should have been.
The ad hoc committee was sharply divided in its opinions, and the resulting statement was compromise that stated there was no absolute medical indication for routine circumcision of the newborn.
The words absolute and routine were meant to convey a different impression from the conclusion of the [1971] AAP Committee on the Fetus and the Newborn.
~ Id.
There is no absolute medical indication for routine circumcision of the newborn… . Therefore, circumcision of the male neonate cannot be considered an essential component of adequate total medical care.).
Ode to the Circumcised Male
We have a new topic to heat up our passions
– the foreskin is currently top of the fashions.
If you're the new son of a Berkeley professor,
your genital skin will be greater, not lesser.
For if you've been circ'ed or are Moslem or Jewish,
you're out side the mode; you are old-ish not new-ish.
You have broken the latest society rules;
you may never get into the finest of schools.
Noncircumcised males are the genital chic
-- if your foreskin is gone, you are now up the creek.
It's a great work of art like the statue of Venus,
if you're wearing a hat on the head of your penis.
When you gaze through a looking glass,
don't rue that you suffered a rape of your phallus.
Just hope that one day you can say with a smile
that your glans ain't passe; it will rise up in style.
~ Id. Edgar J. Schoen, Letter to the Editor, 141 AM. J. DISEASES CHILDREN 128 (1987).
Berkeley professor,
society rules,
genital chic). Dr. Schoen seems ignorant of the fact that, considering the lack of a solid medical foundation for performing circumcision, if anything could be termed a fashion, it would be the alteration of infant male genitalia to suit the cultural (i.e. cosmetic) tastes of many American parents. He seems further ignorant of the fact that if there is now a cultural preference for circumcision among parents in the United States, it is largely the result of decades of erroneous assurances of medical justifications disseminated to the public by the medical profession. This is an error that his poem and his chairmanship of the 1989 task force have perpetuated.
* Law Student, University of Iowa College of Law Class of 2000. I would like to thank my parents for their support and encouragement during the writing of this Note.
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