A Georgia judge has struck the defenses of some of the defendants in a Georgia medical malpractice case in which the plaintiff alleges that the defendants negligently performed a circumcision on her 18-day-old son, because the defendants failed to preserve crutial evidence despite being on notice that the plaintiff intended to sue for medical malpractice.
The plaintiff brought her infant son to the defendant pediatric clinic for a circumcision procedure in 2013, where a certified nurse midwife used a hinged medical device known as a Mogen clamp to perform the circumcision. Immediately after the procedure, the infant was bleeding profusely. The certified nurse midwife consulted with a physician who advised applying pressure and using silver nitrate sticks to stop the bleeding. The physician then consulted with the owner of the pediatric clinic after which he called the infant’s pediatrician and advised the pediatrician that the infant’s glans had been severed during the circumcision procedure.
The certified nurse midwife did not tell the mother that she had severed the infant’s glans but rather told the mother that some bleeding was to be expected and that the infant did not require emergency treatment. The certified nurse midwife instructed the mother to bring her son to the infant’s pediatrician the following day.
Because the bleeding did not stop, the mother brought her son for emergency treatment that evening, where she was told for the first time that a portion of her son’s glans had been removed during the circumcision.
Unbeknownst to the plaintiff, the certified nurse midwife had preserved the tissue from the infant’s circumcision, placing it in a biohazard bag and placing the bag in a refrigerator, where it remained for a period of between several weeks and two months before it was discarded despite being on notice of a likely medical malpractice claim that would be filed regarding the circumcision procedure.
The plaintiff’s botched circumcision medical malpractice lawsuit alleged that the amputated tissue could have been successfully reattached had prompt and appropriate treatment been provided by the defendants.
The plaintiff’s Georgia medical malpractice lawyer moved for sanctions against the defendants, arguing that by discarding the preserved tissue, the defendants were guilty of spoliation of evidence. The plaintiff also argued that failure to preserve the Mogen clamp immediately after the procedure also constituted spoliation of evidence (the Mogen clamp had been cleaned, sterilized, and returned to service after the botched circumcision).
On June 6, 2018, a judge ordered that the defenses raised by some of the defendants be struck because they had a duty to preserve the tissue, stating in her order that the defendants “had constructive and actual notice of potential litigation and thus had a duty to preseve the severed tissue.” The judge’s order stated that the defendants “deliberately acted to keep the plaintiff from seeing the severed tissue sliced from the penis of her 18-day-old infant initially by failing to inform her altogether and then by destroying the tissue upon learning of the pending lawsuit against them and their employer.”
The plaintiff has incurred medical bills in excess of $70,000 for her son’s medical treatment that has included several surgeries to repair the damage. He may require further treatment in the future for harm to his urethra.
If your child may be the victim of a botched circumcision in Georgia or in another U.S. state, you should promptly seek the legal advice of a Georgia medical malpractice attorney, or a malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you and your child in a medical malpractice case, if appropriate.
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