A New Area of Liability for Physicians, Hospitals
Richard W. Morris LL.B., Ph.D
Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or slits the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem. So says the California Civil Code.
There are of course, situations in which consent eliminates criminality from acts which would otherwise constitute assault, battery, or even mayhem, such as a consent for a surgical procedure which is for the benefit of the patient.
Such consent by the individual, let alone the parent, would be invalid for the slitting of the tongue, nose, ear, or lip if such an act were not for the benefit of the patient. Certainly if the patient were not in a position to consent, the act would be mayhem at worst and battery at best. In any case, a crime.
Can you imagine a doctor’s defense to the charge of mayhem by cutting a slit in the nose of a newborn child saying that it would keep the nose cleaner? Or slicing the ear saying that Q-tips would fit better? No time would be lost in suing the doctor.
How, then, does the picture change when, a day or so after birth a doctor takes the six pound bundle of humanity into a dark room (where the baby’s screams cannot be heard by the parents), straps the little guy’s legs and arms apart in a spread eagle position on a torture board called circumstraint, uses no anesthetic, picks up a scalpel and begins the only out-and out act of torture performed by American physicians?
Let us review what is about to be unmercifully attacked. The penis terminates (on the end not attached to the body) in a conical fleshy formation called the glans. The skin covering the penis is prolonged forward in a loose fold. This covers the glans and has an inner lining of the character of a mucous membrane. The prolonged portion of skin with its lining is called the prepuce or foreskin. This is the target.
With the penis (pardon me for using the word; I mean to say dilly whacker) in one hand and a scalpel in the other, the torturer, masquerading as physician, slits vertically along the foreskin. The blade cuts ; the blood spurts. The victim’s cortisone level goes up in response to the pain. The pain is so intense that the sleep/wake patterns are altered for several days. But the torture has only begun. (The pain is that which you would feel from slitting the membrane which connects your tongue to the floor of your mouth.) The foreskin lies bleeding, cut in half.
The initial wound has been made to the previously healthy and uninjured foreskin. A circular cap is then placed tightly over the end of the penis, like a condom. This is to protect the glans so a mistake will not cut “too much” and allows a “clean” slice of the knife to remove the foreskin. The cap is removed with the foreskin, leaving only the mutilated stump. The mayhem is complete.
For the doctor it is quick, painless and profitable. And, until now, safe from malpractice claims. Only the victim’s crying, a little blood and the unstrapping of the victim from the rack remains to be done. But is the doctor still safe from suit? Or is the hospital ? Or even the parents who consented?