Parents Can’t Recover Against Hospital for Unsatisfactory Circumcision

The AP reports that the Minnesota Court of Appeals rejected a negligence claim brought against a hospital by the parents of a young boy who were unhappy with the results of his circumcision.  From the opinion [PDF]:

Appellant is the mother of male child H.A.N.  Appellant and H.A.N.’s father have another son who was born before H.A.N.  Appellant and H.A.N.’s father agreed that it was up to the father to decide if their first son would be circumcised.  He chose to have their first son circumcised.  During a prenatal visit while appellant was pregnant with H.A.N., appellant completed a form regarding her circumcision preference.  The form asked, “If you have a boy, would you like him circumcised?”  Appellant circled a “Y” for yes, assuming that H.A.N.’s father would want the baby to be circumcised like their other son.

H.A.N. was born on January 21, 2000, at respondent Unity Hospital.  Unity Hospital is part of a group of hospitals run by respondent Allina Health System.  Dr. Berestka was the obstetrician on call at Unity Hospital after H.A.N.’s birth.  Dr. Berestka approached a nurse employed by Unity Hospital and asked if there were any circumcisions to be performed.  The nurse informed Dr. Berestka that there was one child to be circumcised and then prepared H.A.N. for the procedure.  Dr. Berestka did not consult with appellant or H.A.N.’s father before performing the circumcision.  After the circumcision, appellant and H.A.N.’s father were dissatisfied by the appearance of H.A.N.’s penis.  As a result, appellant sought advice from another physician, who subsequently performed a revision for cosmetic purposes.   

The physician involved, Dr. Berestka, settled the claim against him.  The hospital, after a complaint was filed by H.A.N.’s parents, was found to be in violation of informed consent guidelines.  But in the litigation, the hospital contended that the duty to obtain informed consent was on the physician.

The appellate court agreed, rejecting arguments that the hospital had a duty to “protect” the child against Berestka’s alleged failure to obtain consent.

The plaintiffs’ attorney is an interesting guy, and notes “circumcision law” as a part of his practice (“He contributes substantial amounts of time to ending the barbaric practice of routine infant male circumcision worldwide, insuring genital integrity for all citizens of the world.”).  The alt-weekly in the Twin Cities did a story about him a few years ago, terming him the defender of “all tomorrow’s foreskins.”

–BC