Circumcision and the American Academy of Pediatrics: Should Scientific Misconduct Result in Trade Association Liability?

Iowa Law Review, Volume 85, Issue 4: Pages 1507-1568, May 2000.

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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.

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