In its decision released on July 18, 2017, a Connecticut Appellate Court affirmed the defense verdict in a Connecticut medical malpractice case in which the plaintiffs alleged that their son was injured when the defendant pediatrician negligently performed a circumcision procedure on him, thereby resulting in the amputation of a portion of the glans (the head) of the child’s penis.

The parents alleged in their Connecticut medical malpractice lawsuit that on December 29, 2010, the defendant pediatrician performed a circumcision on their son, using a device known as a Mogen clamp to perform the procedure. The Mogen clamp is designed to clamp, and therefore isolate, the patient’s foreskin above the glans, after which the foreskin is excised using a scalpel.

The parents alleged that the defendant pediatrician applied the Mogen clamp and excised what she thought was solely the child’s foreskin. After observing that the procedure produced an unusually large amount of blood, she opened the excised foreskin and observed, in her words, a “small piece” of glans. The child, along with the amputated portion of the glans, were transported to another hospital for treatment by a pediatric urologist. That same day, the pediatric urologist successfully reattached the amputated portion of the glans.

During the subsequent medical malpractice trial, the defense desired to play before the jury a two-and-a-half minute video that depicted an unidentified individual performing the entirety of a Mogen circumcision on a newborn, including the application of local anesthesia to the patient’s penis, as well as the use of hemostats (clamps typically used to control bleeding) to assist in applying the Mogen clamp to the patient’s foreskin.

Over the objection of the plaintiffs, the trial judge allowed the video as demonstrative evidence. The defendant’s expert narrated the events depicted in the video while it was played before the jury. The video was not admitted as a full exhibit and the jury did not have access to it during its deliberations.

After the jury returned its defense verdict, the plaintiffs filed a motion to set aside the verdict and for a new trial on the basis of the trial court’s decision to permit the showing of the video. The trial judge denied the plaintiffs’ motion, and the plaintiffs appealed.

One of the plaintiffs’ arguments on appeal was that the trial court improperly denied their post-verdict motion in light of the fact that it did not instruct the jury that the video was for demonstrative purposes only. The Connecticut Appellate court agreed with the trial judge’s observation that the video was not an attempt to reenact the activities of the defendant pediatrician at the time of the circumcision and primarily portrayed to the jury how a circumcision is performed utilizing a Mogen clamp. The Connecticut appellate court stated that the purpose of the video would have been readily apparent to the jury, and therefore rejected the plaintiff’s argument.

The Connecticut appellate court held that the plaintiffs’ other arguments of errors committed by the trial court had not been properly preserved for consideration on appeal, including their arguments (1) that the defendant’s use of the video violated expert disclosure rules under Practice Book § 13-4 and the continuing duty to disclose under Practice Book § 13-5 because the video and related testimony from the defendant’s expert were not disclosed pursuant to those provisions, and (2) that the video, and defendant’s expert’s testimony concerning it, were irrelevant and cumulative.

The Connecticut appellate court did, however, address the plaintiffs’ argument that the video and the defendant’s expert’s narrative testimony were unduly confusing and prejudicial, finding that the plaintiffs’ argument that the portions of the video showing the patient receiving anesthesia and the physician applying hemostats to the patient’s foreskin were confusing to the jury because those aspects of the procedure were not at issue in the trial was without merit because it is not apparent how those parts of the video would confuse the jury (if anything, the Connecticut appellate court stated, the video likely clarified the earlier direct testimony of the plaintiffs’ expert witness).

Source Mahoney v. Smith, AC 38220

If your child may be the victim of a botched circumcision in Connecticut or elsewhere in the United States, you should promptly seek the legal advice of a Connecticut medical malpractice attorney, or a malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent your child in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to be connected with Connecticut medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you.

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