A Clayton County judge struck the defenses of a Riverdale medical practice and a doctor and nurse as a sanction for spoliation after determining that the severed tip of an infant’s penis—which had been stored in a refrigerator following an allegedly botched circumcision—was discarded after it became known that litigation was underway.
The order by State Court Judge Shalonda Jones-Parker said the destruction of the tissue, along with the clinic’s cleaning and returning to service a medical clamp used in the procedure, deprived the child’s mother of evidence vital to her case.
The judge’s ruling spared the clinic’s owner from discipline, saying that, while a jury might find she “acted to prevent plaintiff from knowing about the severed tissue,” there was no “adequate proof that she personally participated in this decision.”
A co-defendant pediatrician and her practice were not sanctioned.
Johnson said Life Cycle OB/GYN and Pediatrics staffers were on notice shortly after the circumcision that Willis was seeking legal counsel, and testimony from nurse-midwife defendant Melissa Jones “emphasized that they were expecting to get sued.”
“I sent a letter of representation within three weeks of [the procedure], and their insurance had already responded,” Johnson said. “All those things were certainly indicators that litigation was forthcoming.”
The defendants targeted by the order are represented by Hall Booth Smith partner Terrell “Chip” Benton and associate Erin Coia; Benton declined to comment.
The case involves a 2013 incident when Willis took her 18-day-old boy to Life Cycle for a circumcision that Jones—a certified nurse midwife—performed using a hinged metal device known as a Mogen clamp.
After the circumcision, the baby was bleeding profusely, according to court filings, and the midwife summoned Dr. Brian Register. According to plaintiff’s pleadings, Register advised using pressure and silver nitrate sticks to stop the bleeding.
After consulting with the clinic’s owner, Anne Sigouin, Register called Willis’ treating pediatrician, Abigail Kamishlian, and told her that the glans—the rounded tip of the penis—“had been severed during circumcision.”
The midwife told the mother a certain of bleeding was normal and that no emergency care was needed unless it continued. She advised the mother to take the baby to Kamishlian the next day.
The bleeding continued and that night Willis took the boy to Children’s Healthcare of Atlanta, where she “learned that a portion of the glans of her infant’s penis had been amputated and could not be restored,” the complaint said.
Jones, the midwife, had placed the severed tissue in a biohazard bag and put it a refrigerator, where it remained for a period of time between several weeks to two months before it was discarded.
According to a transcript, the owner, Sigouin, knew from a conversation with the mother shortly after the circumcision that litigation was likely to ensue.
Neither Willis nor her lawyers learned of the existence of the tissue until long after it was thrown out, their filings said.
Willis filed a medical malpractice suit against Life Cycle, Jones, Register and Sigouin, as well as Kamishlian and her practice, Daffodil Pediatric and Family Medical Services, in 2014. Among her claims was an assertion that the amputated tissue could have been reattached if emergency care had been sought promptly.
Earlier this year, the plaintiff moved for sanctions, arguing that the destruction of the tissue and failure to preserve the Mogen clamp constituted spoliation of evidence.
The defense argued that the tissue issue was a “red herring” involving a “small piece of glans tissue [that] was inadvertently removed.”
“No physician or other medical provider ever requested the tissue, notified these defendants that they needed the tissue, or inquired as to how the injury occurred or whether the tissue remained on site,” said a defense response to the sanctions motion. “However, despite the lack of tissue, plaintiff has obtained an expert who has purported to opine that re-attachment of the tissue would have been possible, even without seeing the tissue.”
As to the Mogen clamp, the defense said it was one of several identical devices cleaned, sterilized and returned to service as “in accordance with the office’s usual and customary method of cleaning and sterilizing medical equipment following circumcisions.”
In her June 6 order striking the defenses Life Cycle, Jones and Register, Jones-Parker wrote that, as health care providers, they had a duty to preserve both the clamp and the tissue.
After the circumcision, “the Life Cycle defendants were aware that the plaintiff was very upset regarding her baby’s penis to the extent that she had to be physically separated from defendant Jones,” Jones-Parker said.
“Based on the circumstances before and after the complications arose with the circumcision, Life Cycle defendants had constructive and actual notice of potential litigation and thus had the duty to preserve the severed tissue.”
While aware of the “extremity of striking answers,” Jones-Parker said Jones and Register “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.”
She said the clamp issue could be remedied by instructing the jury that the clinic had failed to preserve it.
Jones-Parker said the order “narrowly tailors” the sanctions by excluding the clinic’s owner, Sigouin.
Johnson said Jones-Parker wrote the order herself.
He said the boy, now 4, has undergone several surgeries in an effort to repair the damage from the circumcision, with more treatment being considered for the boy’s urethra.
Johnson said the boy’s medical bills totaled more than $70,000 so far.