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Ben Glass
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Woman Can't Sue for Circumcision She is Not Happy With

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On Tuesday, February 5, the Minnesota Court of Appeals ruled that a mother who was unhappy with how her baby’s circumcision looked cannot sue a hospital in Fridley, Minnesota for medical malpractice.

Unity Hospital and Dr. Steven Berestka were sued by Dawn Nelson who claimed that Berestka removed “the most erogenous tissue” after the boy’s birth on January 1, 2000 without consulting either parent. She and David Nelson, her husband, were unhappy with the result.

However, in its decision, the Appeals Court noted that the mother had indicated that the baby should be circumcised on a prenatal form.

Zenas Baer, the mother and son’s attorney, said that he was disappointed with the ruling.
Baer said that according to federal regulations, before any surgery can take place, there has to be a signed informed consent form and argued that a check mark in a box on a form is beside the point. He said that the Nelsons plan to appeal.

Initially, Dawn Nelson filed suit against Berestka for alleged assault and battery and negligence. That claim reached a separate settlement. The claims filed against the hospital and Allina Health System, its parent company, went forward.

She claimed that Unity had a duty to verify that the doctor had obtained informed consent and in its informed consent policy, the hospital had been deceptive or misleading. A judge in Hennepin County dismissed the case and the appellate court affirmed his decision.

Comment from Virginia Medical Malpractice Attorney Ben Glass: its tough to win an “informed consent” case. The forms they use are pretty generic and many cases come down to “he said; she said.” These are usually losing cases.