This post is about a large verdict in Georgia after an awful circumcision mishap caused a boy serious and permanent injuries. In this post, I talk about this tragic case and I also take a deep dive into the statute of limitations in Georgia in birth injury cases.
The Big Verdict
A jury in Clayton County, Georgia awarded a mother and her four-year-old son $31 million for a circumcision gone wrong. This incidence of malpractice took place at an OB/GYN and pediatric clinic. This is a big verdict for the most common surgical procedure in the country and one that is rarely the subject of a malpractice lawsuit.
What went wrong? A lot.
The Facts of the Case
A nurse-midwife performed the circumcision on the child 18 days after he was born in October 2013. The end of the penis got caught in the Mogen clamp and started bleeding heavily. This resulted in its amputation. An OB/GYN was called to stop the hemorrhaging from the child’s penis. The clinic’s owner was then called for assistance. They advised the doctor and midwife to contact the child’s pediatrician. The pediatrician advised that the mother should take her child home, and go to the emergency room if bleeding re-started. However, none of them considered the possibility of reattaching the amputated part. Instead, it was preserved in a saline solution and kept in a lab refrigerator at the clinic. To make matters worse, the medical staff had failed to notify the child’s mother that an amputation took place.
Shortly after taking her child home, the mother brought her son to an Atlanta-area hospital because the bleeding continued. She was referred to a pediatric urologist the following day. It was only then that she was notified of the amputation.
As a result of the errors made by medical staff, the child and his family have experienced significant financial and emotional hardships. The child has seen doctors in six different states and underwent five major surgeries throughout his life. These procedures were conducted to help the child do basic bodily functions such as urination. The family was left with medical expenses worth tens of thousands of dollars.
According to the plaintiff’s attorney, the piece that was cut off “could have been reattached.” Their expert witness, a pediatric urologist testified that he himself experienced two similar scenarios to the aforementioned one. However, he was able to reattach the part in both cases. Other expert witnesses also testified that a pediatric surgeon could have reattached the tissue within six to twelve hours after the amputation.
Witness testimony also revealed questionable practices that were committed by the medical staff. A medical assistant who prepared the child for his circumcision testified that no one told the child’s mother that a small part of her child’s penis was cut off. The Mogen clamp used in the botched procedure was neither examined nor removed from the supply. Instead, it was cleaned and put back into service. The severed tissue was also kept in a refrigerator for months. The lawsuit alleged that it was only discarded once the clinic knew there would be legal action taken against them.
The midwife’s deposition further revealed that that the amputation was not taken as seriously as it should have been. She said that the tissue in question was too small to reattach. The midwife described it as “no thicker than a credit card.” She also stated she did not have a reason for why the part was cut and referred to it as a “very small piece of tissue.” She felt that the only serious emergency that day was the excessive bleeding resulting from the amputation.
Addressing the jury, the plaintiff attorney focused on the future difficulties in life that the child may experience because of the malpractice. The attorney said that the child may find it difficult to find a partner once he gets older, which we hope will not be the case.
What Will That $31 Million Go?
The medical expenses were relatively low — $780,000 of the $31 million will be going into past and future medical expenses. Much of the remaining money will go to pain and suffering. It will also be used to provide counseling and support for the child to handle possible trauma throughout his life.
This child will be experiencing significant medical issues for the rest of his life. His mother mentioned that the first eighteen days of his life “were the only normal days” that he would ever have. The medical staff failed to take the appropriate procedures shortly after the grave error was made. This resulted in an emotionally devastated family and a child who will struggle with medical issues for the rest of his life. This settlement can help hold medical staff accountable for their actions, and to understand mistakes like this one more seriously.
Will the judge reduce this verdict? Is there insurance coverage to pay the verdict? Who knows? I report on these cases to show how juries respond to a set of facts. These facts clearly made a jury very angry.
Informed Consent Circumcision Cases
Circumcision is the most commonly performed medical procedure in the United States. Informed consent in circumcision cases can be lax. A written consent form is merely a piece of paper. Doctors need to go to the mother and father to discuss circumcision. They should be asked whether they want the baby circumcised. There is the possibility for complications and that needs to be discussed with the parents. Doctor and midwife can violate informed consent laws when they do not properly inform the parents of the risk.
Remember, as common as it is, circumcision is a cosmetic procedure and not medically necessary. The medical literature on the alleged “benefits” of circumcision is conflicting. In fact, in non-circumcising European countries, rates of sexually transmitted diseases, including HIV, are equal to or less than those found in the United States where for two or so generations the majority of men have been circumcised.
Georgia Birth Injury Statute of Limitations
O.C.G.A. § 9-3-71 states that an action for “medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent act or omission occurred… In no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful action or omission occurred.”
This code section creates a five-year statute of ultimate repose and abrogation However, O.C.G.A. §9-3-73(c) is an exception to this general rule of O.C.G.A. §9-3-71(b). (“Nothing contained in subsection (a) or (b) of this Code Section shall be construed to repeal Code §9-3-73, which shall be deemed to apply either to the applicable statutes of limitations or repose.”) Section 9-3-73(c) is a statute of repose, and provides, in part:
(c) Notwithstanding subsections (a) and (b) of this Code Section, in no event may an action for medical malpractice be brought by or on behalf of:
(2) A minor:
(A) After the tenth birthday of the minor if such minor was under the age of five years on the date on which the negligent or wrongful act or omission occurred.
What does this mean? It means that birth injury cases on behalf of the child must be filed before the child’s 10th birthday.
Keep in mind that in birth injury case parents have their own claim for medical bills and expenses in raising the child until the child is 18. The statute of limitations that applies to the parents is the regular two-year malpractice statute of limitations.