TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, February 7, 2008

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."


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Tracked on Sep 14, 2009 7:36:00 AM


It's *illegal* to cut off a baby girl's prepuce, regardless of the parents' wishes.

Why don't boys get the same protection? Whose body is it?

Posted by: Mark Lyndon | Feb 7, 2008 8:30:38 AM

10 Ways Male Circumcision Hurts Women:

Posted by: BrooklynBeckham | Feb 7, 2008 9:14:51 PM

Technically, its illegal for doctors to preform cosmetic PREPUCECTOMY on healthy newborn genitals too. The current laws protecting girls from circumcision make no exemption to cultural, cosmetic, hygienic, religion, or medically unnecessary reasons. She also must wait to the age of 18 before undergoing the operation herself. The 14th Amendment of the United States Constitution states that, “…everyone has the same protection under law and shall not be deprived of that equal protection.” It is clear that fully protecting girls from any form of genital cutting but not boys is unconstitutional. Intact genitals are the birth right of both genders, not just females. If a man decides on his own that he wants to undergo circumcision after being informed, then he is entitled to make that decision. There is a danger if boys are not allowed the same protection lawmakers and politicians may find the laws protecting girls from circumcision unconstitutional and allow parents to liberally circumcise their girls for any reason as well. Doctors get a way with mutilating normal genitalia,(in the American culture) aka male circumcision because they don't properly inform parents. Oftentimes they purposefully deceive parents because they don't want to loose $20k-$30,000 dollars per year alone in just circumcisions. Until men stand up for their bodies and protect the integrity of every American infant and male child, they'll continue to branded and maimed as if it were a crime to be born male. Hey, if women fought and won their right to vote, men should be able to fight and win to keep their WHOLE bodies intact! It doesn't mean women like myself don't care, we do! Everyday we're doing what we can to end this atrocity. Its every bit of an issue for women as it is for men.

Posted by: Chava | Feb 7, 2008 10:04:27 PM

interesting story. yes, circumcision has indeed become a controversial topic lately. at, they have a debate on neonatal circumcision. it's between vetted experts and advocates. check it out if you're interested in the topic.

Posted by: edmond | Aug 7, 2008 12:52:26 PM

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