Waiting for the Flood of Lawsuits
Can the Courts Fix Gender Medicine?
Gender medicine is out of control. Less than ten years ago, medical gender reassignment was reserved for adults after extensive psychological assessment. Reported cases of regret were very rare. Now hormones and surgeries are being provided at younger ages with less preliminary assessment.
The predictable result has been a rapid growth in detransition and regret. People who were offered hormones and surgery as a fix for their mental health problems in their teens are now entering their twenties with their mental health problems unresolved and facing lost fertility, diminished or absent sexual function and lifelong dependence on artificial hormones.
Talk is starting about a flood of lawsuits against gender clinics. Some lawyers are beginning to advertise for clients. In past, negligence lawsuits have played a role in improving safety standards and a few large damage awards may frighten gender clinics into cleaning up their act. If nothing else, they will risk losing their insurance coverage. However, there are significant obstacles to any legal solution. While some high profile malpractice claims receive media coverage medical negligence claims are exceptionally challenging and claims against gender clinics pose some special challenges.
It is difficult to write about medical malpractice in anything except very general terms, because in Canada and the United States the medical negligence is a provincial or state matter. There are more than 60 jurisdictions, each with their own laws. In Canada, most civil trials are heard by a single judge and damages are modest. In the United States, there is generally a right to a jury trial and a persuasive lawyer can recover very large damage awards. Other states have legislation that limits damages and makes liability harder to prove. In Canada, most civil cases are heard by a single judge and damage awards are capped.
This article considers how the courts might treat a malpractice claim related to gender transition. It does not refer to the law of any particular jurisdiction, but there are some principles of negligence law which are consistent in any legal system based on English common law.
Basis of Liability
There are two basic grounds on which a doctor can be sued for malpractice. The first is for negligence in the actual treatment such as ineptly performed surgery or failure to monitor adequately the effects of cross sex hormones. This type of malpractice is difficult to prove as it is necessary to show that the doctor actually made a mistake. A poor outcome is not, by itself, proof of negligence. Doctors do not guarantee a good result in every case. Adverse side effects, which can occur without negligence, will not give rise to a claim so long as they are adequately disclosed in the informed consent process.
However, the complaint of most detransitioners is not that their surgical or hormonal treatment was negligently performed. It is that it should not have been attempted in the first place. The treatment may have achieved the desired results at the physical level, by giving an increased resemblance to the desired sex, but fail to resolve the patient’s psychological problems. Recent studies of detransitioners by Lisa Littman and Elie Vandenbussche both found that failure of transition to resolve psychological distress was a significant reason for detransition.
The second basis for a medical malpractice claim is a failure to obtain informed consent for the treatment. All medical treatment requires informed consent and where the treatment involves life long irreversible consequences such as sterility, the legal and ethical obligation to see that the patient is properly informed is very high.
In order to give valid informed consent, a patient must understand the nature of the treatment, the possible risks and side effects and the risks and benefits of any alternative treatments. The complaint of many detransitioners is that they did not receive an adequate mental health assessment and that they were therefore consenting to medical transition in the false belief that it was the only way to resolve their mental distress.
There are three different standards of informed consent that may come into play. First, is the legal standard which doctors must comply with to avoid a lawsuit. Second, there is the ethical standard which doctors are expected to follow as part of their obligation to provide good patient care. Third is informed consent in contemporary gender medicine.
The basic legal requirement of informed consent is described by the Canadian Medical Protective Association as:
Outside of taking action to save life or limb in emergency situations, physicians may do nothing to or for a patient without valid consent. This principle is applicable to all medical and surgical treatment, and diagnostic investigations involving the patient.
Consent may be implied, oral or written. Consent to a simple examination can be implied from the patient’s cooperation. A more intrusive procedure like an internal examination may require express oral consent. Some jurisdictions require written consent for surgery as a matter of law and this is also the policy in all hospitals.
Whatever form consent takes, it must be voluntary, the patient must have capacity to consent and the patient must be fully informed.
Voluntary consent means that the patient must not be subject to coercion from any source, including the doctors. Coercion may take the form of exaggerating risks of consent or refusing or not allowing the patient adequate time to weigh information and consider alternatives.
The CMPA also reminds doctors,
Even if the patient has already made the decision to undergo the procedure and has completed the required preparation, they are entitled to change their mind and to be given an opportunity to once again have a consent discussion about the risks and alternatives, to ask questions, and to confirm their choice prior to the procedure.
There has been more than one case of a patient having second thoughts about a gender affirming operation even when the surgeon is scrubbed and waiting.
The irresponsible use of suicide statistics in the transgender community is another form of coercion. Patients who genuinely believe that the only alternative to transition is suicide are not giving uncoerced consent. Unfortunately, instead of trying to calm these fears, too many professionals are willing to exploit them, particularly where it is necessary to persuade a skeptical parent of a minor.
Capacity to consent becomes a major issue when minors are involved. Most jurisdictions will allow minors to consent to medical treatment, even over parental objection, on the basis of the mature minor doctrine. The capacity of a minor to consent to medical treatment will depend on many factors including the seriousness of the risks of the proposed treatment. In the Bell v. Tavistock case the U.K High Court found that minors under 16 were not capable of consenting to treatments that would leave them sterile. The Court of Appeal reversed the judgment on the basis that this was not an issue that could be dealt with through an application for judicial review but it gave a strong warning to doctors that this is any issue that would be closely scrutinized in an action for medical negligence.
There are a lot of potential actions building up involving minors. This post from a group for parents of “transgender children” is by a parent whose child went into a panic just before the insertion of a puberty blocker implant. The parent did not want to delay the procedure so it could be done after the child was sedated. The package had already been opened and had to be inserted immediately. Their insurance would not cover the $43,000.00 cost of a new implant. She ended up bribing the child to go through the procedure that day.
The final requirement of informed consent is that the patient needs to be informed of the risks and benefits of the procedure and of any alternatives.
A basic informed consent document in gender medicine describes the expected effects as well as possible side-effects of the treatment. For example, this consent form for testosterone from TransCareBC lists various expected effects including deeper voice, growth of body hair, loss of scalp hair, dryness of genitals and decreased fertility as well as potential risks including diabetes, liver inflammation, sleep apnea and heart and circulation problems.
However, the risks of gender medicine go far beyond the medical side effects of a particular drug. Gender transition is often a cascading series of interventions where social transition leads to puberty suppression, cross sex hormones and surgery. A fully informed consent for any gender affirming care should consider the risks and benefits of the whole transition process which are social and psychological, as well as physical.
A full informed consent process should disclose that the quality of the evidence in support of medical transition is very low and that, in the case of childhood onset gender dysphoria, there is a strong possibility that it will desist by puberty without treatment.
The doctor should consider screening the patient for mental health issues which are often associated with gender dysphoria and discuss the possibility that the gender dysphoria may abate if these conditions are treated. Patients often have both conscious and unconscious motives for wanting to transition. Unless they have been enabled to explore their unconscious motives through therapy, they do not fully understand their condition and thus their consent is not fully informed.
In conventional medicine doctors will normally discuss the risks and benefits of any non-invasive therapies before proceeding with drug or surgical treatment. One would therefore expect patients with gender dysphoria to be offered the option of learning to deal with their distress through talk therapy before proceeding to riskier and more invasive treatment.
The issue of alternative treatments is where conventional informed consent and the informed consent model in gender medicine part company. The informed consent model of gender medicine rejects the view that gender dysphoria is a condition to be diagnosed and treated. Instead it considers the role of the doctor as assisting transgender patients in bringing their bodies in line with their internal sense of gender identity. The patient’s self declared sense of gender identity is conclusive. There is no need to discuss alternative treatments because this model does not admit that there are alternatives to medical transition. Any consideration of the underlying causes of gender dysphoria or suggestion that it might resolve without transition is condemned as “conversion therapy.”
While supporters of the informed consent / affirmative model claim that it does not allow for hormones on demand, that is often what it amounts to in practice. Too many patients are learning too late that their sense of gender identity was based on underlying psychological distress and they should have been offered talk therapy rather than hormones and surgery.
The key question for the courts will be whether patients who signed a consent to hormone treatment or surgery can later claim that this was not a valid informed consent on the basis that they did not receive an adequate psychological assessment.
The answer to this question will depend on many factors, including the age of the patient, the extent of the informed consent process, the terms of the document and the local laws.
Different jurisdictions may give different legal weight to a consent form. At one end of the scale, a form signed by an adult may be treated as a binding contract which releases the doctor from liability for any adverse consequences which were disclosed in the form. If the terms of the form were broad enough to cover possible regret due to inadequate psychological assessment, that would be the end of the matter.
On the other hand, a signed consent form may simply be treated as some evidence of consent. The court would still look at all of the evidence to decide whether consent was genuinely informed. On this view, consent would not be sufficient to protect the doctor from liability for failure to screen the patient for mental health conditions since the patient’s lack of understanding of the nature or his or her distress would mean that the consent was not truly informed.
Consent by minors raises different issues. Even in jurisdictions where a minor has the capacity to consent to medical treatment, a minor may still not have the capacity to release the doctor from liability for negligence in obtaining the consent. Courts will therefore be more likely to go behind the written informed consent document and consider the reality of consent.
Another question is what the consequences of an inadequate informed consent. One possibility is that the consent will be treated as void and the doctor will be liable for all the consequences of the treatment as if it had been performed without consent. In other cases, where the complaint is the failure of the doctor to disclose the risk of some side effect, the court may consider whether the patient would have consented to the treatment if side effect had been disclosed. The doctor may escape liability if the court is satisfied that the plaintiff would have consented in any case.
The interdisciplinary nature of gender medicine complicates the issue of assigning responsibility for obtaining informed consent. Policy documents such as the Endocrine Society Guidelines recommend that treatment should be based on a diagnosis from a mental health professional with training in diagnosis and treatment of all psychiatric conditions. Surgeons or endocrinologists who rely on a referral letter from a psychiatrist or clinical psychologist could reasonably argue that they do not have to go behind the letter and any liability for regret rests with the mental health professional who failed to conduct an adequate assessment.
However, in many cases doctors are well aware that referrals are being made after only a cursory assessment which falls well below the WPATH or Endocrine Society guidelines. In these cases, they may be held to a higher standard.
Standards of Care
The law of professional negligence requires that a professional meet the standards of a reasonable professional of comparable qualifications. The courts rely on the opinion of experts to determine the standard of care and experts, in turn, will refer to peer reviewed publications and the official positions of professional organizations. This creates a problem for plaintiffs.
Doctors who practice gender affirming care can cite an impressive array of material. It is only when you look closer that the flaws appear. A footnote by footnote analysis of a document like the American Academy of Pediatrics policy on transgender children will show that the key recommendations are made without supporting evidence. Close scrutiny of published studies on puberty blockers and hormones may show that the data does not support the researchers’ conclusions.
However, the law of negligence does not require individual doctors to conduct this kind of detailed scrutiny of the medical literature before treating a patient. The practice of medicine depends on trust. Doctors and the courts need to be able to trust that the medical profession as a whole is able to establish a consensus on standards of care which is based on sound science and clinical experience.
However, even with if the courts accepts documents such as the WPATH Standard of Care and the Endocrine Society guidelines as the legal standard of care, there is a possibility of a successful claim. Both the WPATH and Endocrine Society guidelines continue to recommend a thorough psychological assessment and many clinics are ignoring this requirement.
Finding experts to testify for the plaintiff in a medical negligence case is difficult at the best of times. Doctors are reluctant to give evidence against other doctors. However, in gender medicine it is doubly difficult. A credible expert witness should combine strong academic credentials with practical experience in subject at hand. In gender medicine, that combination is hard to find.
Over the last ten years or so, activist pressure has created a situation where, in order to work with gender dysphoric patients you need to be an uncritical supporter of the affirmative model of care. Conversion therapy laws make doing anything other than affirmative care risky. This means that many professionals who are critical of the affirmative model do not have recent clinical experience in treating patients with gender dysphoria.
Any professionals who do come forward as witnesses are likely to come under personal and professional attack. A group of LGBTQ organization has called on Case Western Reserve University, University Hospitals and the Ohio State Medical Board to cut ties with Dr. Stephen Levine, who has provided evidence in a number of key court cases involving gender medicine. Nothing much is likely to come of this letter, as Dr. Levine is nearing retirement, after a long and distinguished career, but it sends a message to younger professionals.
This situation will improve as a community of professionals develops to meet the needs of the growing numbers of detransitioners and patients experience regret. In the United Kingdom, change began in 2019 when the resignation of a group of staff from the Tavistock Clinic started a reconsideration of gender medicine. Canada and the United States are probably 4 or 5 years behind.
Most jurisdictions have a statute of limitations which imposes a time limit for bringing actions for negligence. A two year period is typical. This is a problem because many detransitioners report that they did not begin to feel regret until five years or more after their treatment began. Fortunately, there are a number of ways in which a limitation period can be extended.
In the case of minors, the limitation period generally does not being to run until they reach the age of majority. A twelve year old injured by puberty blockers would therefore have until age twenty to bring a claim.
Many jurisdictions have a discoverability doctrine which holds that a limitation period does not commence until the plaintiff is aware of all of the facts that give rise to the right of action. Therefore if a patient who develops an adverse side effect from a treatment several years later, the limitation period would begin to run only when the patient learned that the side effect was a result of the treatment.
A third possibility is that there is a continuing cause of action. If a patient goes to a doctor for hormone injections on an ongoing basis and the doctor simply renews the prescription without monitoring its effects on the patient’s mental and physical health, it could be argued that the limitation period restarts after each appointment.
Once liability is established, the court assesses damages. While there are some states where damages in malpractice claims can be in the millions of dollars, the damages in a gender related claim are likely to be much lower.
Damages fall into two categories. Economic damages compensate for losses which have a determinable monetary value such as loss of income and costs of medical care. Economic damages can be in the millions of dollars where the plaintiff suffers a catastrophic injury, is unable to work and needs round the clock care. However, in most gender related claims the plaintiff will still be able to work and will not require ongoing care beyond hormone replacement.
Non-economic damages compensate for losses which have no fixed monetary value such as pain and suffering and loss of bodily function. Where non-economic damages are assessed by a jury, as they are in most of the US., they can be in the millions. However, in many states have adopted “tort reform” laws which put a cap on non-economic damages. For example, California has a cap of only $250,000.00. Canada has never needed tort reform. Jury trials are rare and judges are limited in the damages they can award. In 1978 the Supreme Court of Canada set a cap of $100,000 on non-economic damages which is now around $375,000, adjusted for inflation.
Relatively low potential damages will affect lawyers fees. Most personal injury lawyers work on a contingency fee basis where the fee is a percentage of the damages recovered. If there is no recovery, the lawyer does not get paid. Medical negligence cases of any type are complex and the outcome is always uncertain. Without the incentive of a high fee if the case is won, many lawyers will be reluctant to take on gender related claims.
Lawsuits are coming, but lawsuits alone are not going to lead to real reform. In the right case, with the right plaintiff, a good lawyer, the right jury and a state where the law favours the plaintiff, there will be some very large damage awards. But these cases may have little impact in a neighbouring state where the laws are slightly different.
The current state of gender medicine has often been compared with the history of lobotomy. The courts did not play a significant role in ending the lobotomy scandal. Patients did sue, but the decline of lobotomy was the result of multiple factors including changes in the political climate, death or retirement of many of its practitioners and the development of new drugs to treat mental illness.
The opioid crisis is a more recent example of the medical profession and pharmaceutical industry going badly off course. Lawsuits have started, and some large settlements are being reached, but before the lawyers got involved there were many years of work in the media, professional associations and government to raise awareness and change attitudes.
The law of professional negligence is not designed to deal with the kind of catastrophic failure of trust that has occured in gender medicine. Professional negligence law is intended to hold individual practitioners or hospitals liable for failure to meet established professional standards of care. If the standards of care are faulty, the system breaks down. Professional standards are established through a process of dialog and debate between professional associations, university researchers and government agencies. The media scrutinizes the entire process. In gender medicine, political activists have captured all of these institutions, suppressed debate and imposed a model of care based on ideology rather than science. Until this process is reversed, it would be a mistake to expect too much from the courts.
This article is for general information only and should not be relied on as legal advice.