February 15th, 2023

Pediatric Gender Transition and Medical Malpractice (Updated)

Reading the article from Jamie Reed was shocking: I Thought I Was Saving Trans Kids. Now I’m Blowing the Whistle.

This was someone that worked as a case manager for a gender transition clinic dealing with adolescents for four years — and no one works in such an environment by accident as is clear by her intro — and finally felt the need to rip off the band aid for this particular clinic. It isn’t pretty and I urge you to read it. This is The Washington University Transgender Center at St. Louis Children’s Hospital, so by superficial appearances not a fly-by-night operation.

Now before I go into a couple of the specifics that leaped off the page at me, I stress that this blog is not about the pros/cons of transgender treatments, and most certainly not about culture wars. It isn’t what I do here, as should be clear from the blog’s title for the past 17 years.

It’s about the doctors who were doing the treating.

The clinic, Reed writes, wasn’t always as large as it is now:

Until 2015 or so, a very small number of these boys comprised the population of pediatric gender dysphoria cases. Then, across the Western world, there began to be a dramatic increase in a new population: Teenage girls, many with no previous history of gender distress, suddenly declared they were transgender and demanded immediate treatment with testosterone.

Given the amount of press that transgender issues have contributed to, it likely isn’t a surprise that more kids are consulting with them. They went from 10 calls a month to 50, and from predominantly boys to predominantly girls.

Many of these kids, as Reed writes, were not suffering from gender dysphoria as an isolated issue, but had other comorbidities:

The girls who came to us had many comorbidities: depression, anxiety, ADHD, eating disorders, obesity. Many were diagnosed with autism, or had autism-like symptoms. A report last year on a British pediatric transgender center found that about one-third of the patients referred there were on the autism spectrum.

Frequently, our patients declared they had disorders that no one believed they had. We had patients who said they had Tourette syndrome (but they didn’t); that they had tic disorders (but they didn’t); that they had multiple personalities (but they didn’t).

Now I think anyone reading the article to this point — assuming its accuracy — would probably agree that these children should probably have a pretty darn good psychiatric/psychologic evaluation before undergoing treatments that could be irreversible. So what kind of therapy/evaluation was required?

To begin transitioning, the girls needed a letter of support from a therapist—usually one we recommended—who they had to see only once or twice for the green light. To make it more efficient for the therapists, we offered them a template for how to write a letter in support of transition. The next stop was a single visit to the endocrinologist for a testosterone prescription.

That’s all it took.

Once or twice. That was it. For a girl that may have serious other comorbidities to take testosterone that may make her sterile?

People make mistakes in life as adults, never mind as children. There is, for example, a 50% divorce rate for people who swore they would be happy forever, and people who join cults. And the history of humanity is replete with people talking themselves into doing awful things to others, convinced they are doing the right thing. You will find this in almost any war or atrocity for example. The human brain can be quite malleable.

So in order to fulfill the doctors’ oath to “Do no harm,” you would think serious evaluations would be done for adults, and even more extensively for children.

And some serious education because, as Reed writes, many young patients (or their parents) are not well-educated on the subject. It’s hard to give an informed consent without being properly informed.

What are the odds that a jury would find that such minimal evaluation — if that is all that took place — would constitute a departure from customary and usual practice? High. Very, very high.

But — and I know this is tough to believe — it actually gets worse. Some of these kids were psychiatric referrals. And no matter the condition, the treatment was the same — gender transition:

Besides teenage girls, another new group was referred to us: young people from the inpatient psychiatric unit, or the emergency department, of St. Louis Children’s Hospital. The mental health of these kids was deeply concerning—there were diagnoses like schizophrenia, PTSD, bipolar disorder, and more. Often they were already on a fistful of pharmaceuticals.

This was tragic, but unsurprising given the profound trauma some had been through. Yet no matter how much suffering or pain a child had endured, or how little treatment and love they had received, our doctors viewed gender transition—even with all the expense and hardship it entailed—as the solution.

Another thing that will come as no surprise is that many of those that began gender transition changed their mind. This is hardly shocking given the tender years of the patients, minimal evaluations and oft-times serious psychological problems.

You would think that the reasons for a change of mind would be really, really important. Gaining knowledge — from both successes and failures — is a critical piece of science so that fewer errors occur in the future. It’s how medicine marches forward.

But obtaining knowledge was discouraged by at least one of the doctors:

Because I was the main intake person, I had the broadest perspective on our existing and prospective patients. In 2019, a new group of people appeared on my radar: desisters and detransitioners. Desisters choose not to go through with a transition. Detransitioners are transgender people who decide to return to their birth gender.

The one colleague with whom I was able to share my concerns agreed with me that we should be tracking desistance and detransition. We thought the doctors would want to collect and understand this data in order to figure out what they had missed.

We were wrong. One doctor wondered aloud why he would spend time on someone who was no longer his patient.

While Reed’s piece is filled with a variety of horror stories about the young patients, this part really struck me as the worst, as there is a world of difference between anecdotes and data. Anyone can find an anecdote to “prove” any point, but the bigger picture of what data shows is the way that science (and good government) advances for the better. Here, the collection of data was discouraged.

So the same mistakes would be made over and over.

As noted by Reed in closing about the experimentation on youth:

Experiments are supposed to be carefully designed. Hypotheses are supposed to be tested ethically. The doctors I worked alongside at the Transgender Center said frequently about the treatment of our patients: “We are building the plane while we are flying it.” No one should be a passenger on that kind of aircraft.

A final note on my own bias in writing this. My dad practiced medical malpractice law for 40+ years. He led a malpractice department of 10 attorneys. I heard, as a kid at the dining room table, many an opening statement being practiced by my father. He saw all the screw-ups. I continue to see them now.

For reasons that should be obvious, he was opposed to aggressive medical treatments unless necessary. When I had my wisdom teeth pulled in the 70s, he said “no gas.” Dentists were not anesthesiologists and he had seen the problems. (I got valium and novocaine and can still hear the crunch of the last tooth coming out.)

Reed’s article reads like a throwback to an era of non-scientific and experimental surgical practices, from leaches, to cough syrup with morphine and alcohol, to cigarettes for asthma.

I’m not going to sit here and say a pediatric gender transition should never be done, as I have not studied the issue and read the science.

But I will say that, if the article is accurate, that is is being done in a wholly unscientific way, without proper evaluations, and that many kids will be hurt as a result. And that proceeding in such fashion would make a very strong case for medical malpractice if the kids change their mind and irreversible changes have occurred.

Updated 3/6/23: The St. Louis Post-Dispatch did an article on Reed’s piece, with some people calling into question her comments: Parents Push Back on Allegations Against St. Louis Transgender Center. ‘I’m baffled.’

June 18th, 2021

Military Members Can Now Sue for Medical Malpractice

Lt. Rudolph Feres, parachuted into the darkness in the first hours of D-Day in 1944. He was killed later in a stateside barracks fire and his estate was barred from bringing suit. Photo via NY Times.

I wrote about the Feres Doctrine 18 months ago — that being the Supreme Court decision holding that military members couldn’t sue for medical malpractice, even if it occurred in non-combat situations.

I won’t repeat it all. Go read the link. The short version is this:

Did your stateside barracks burn down? Sorry Charlie. Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant? Tough noogies. Your wife died from blood loss after child birth because of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.
The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.

In December 2019 that changed a bit that, when it allowed members to now sue for $100K, which was a silly limit for the reasons that I explained.

Now head to this next link: Because the Feres Doctrine is now gone. Military members can now sue, and the $100K limit is kaput, as we say in legalese. The change in law was inspired by yet another miscarriage of justice:

a provision in the 2020 National Defense Authorization Act, which sets policy and spending priorities for the Pentagon, ended the ban on suing for medical malpractice, after Sgt. 1st Class Richard Stayskal and his attorney, Natalie Khawan, petitioned lawmakers to change the law. The Feres ruling barred Stayskal from filing suit after military doctors during a routine physical in January 2017 failed to inform him of his lung cancer, which grew to be terminal.

Here’s the new rule, directly from the Federal Register:

A substantiated claim under $100,000 will be paid directly to the member or his/her estate by DoD. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues. However, the statute allowed Service members to file claims in 2020 for injuries that occurred in 2017.

May you and your loved ones have no need for it.

October 15th, 2020

Cuomo Throws Monkey Wrench into Malpractice Immunity Law

When COVID-19 came to New York, the Legislature moved fast to grant widespread immunity to hospitals and nursing homes for virtually any acts of negligence that occurred, including, obviously, medical malpractice.

Realizing that such immunity was far too broad, the Legislature then pared it back. See, from August 4th, Cuomo Signs Bill Limiting Medical Immunity.

The key element of what will entitle medical practitioners to immunity now is whether they were “impacted” by the pandemic. The relevant time period shift in the law is March 7 to August 3rd. And yes, “impacted” is vague.

When this paring back of immunity occurred, I wrote of what the future would bring for any nursing home or medical malpractice suit brought within the key time period:

Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.

But now Gov. Andrew Cuomo has monkey-wrenched the arguments of malpractice defense lawyers throughout the state.

How did he manage to do that? In an interview with CNN, he said that New York’s hospitals “were never overwhelmed” at the peak of the COVID-19 pandemic.

Yowza! So hospital lawyers, defending malpractice cases, will obviously all want to claim their hospital or doctor was “impacted.” But the Governor just said the the hospitals “were never overwhelmed.”

Now you can try to parse the differences between those two phrases, but the ultimate answer will no doubt result in intense factual disputes.

This may well mean that attempts for fast victories on motions to dismiss — asserting that based on the pleadings alone there is no cause of action — can be easily shot down.

But will they be dismissed based on lack of evidence, as happens with summary judgment motions? To grant summary judgment there must be an absence of a factual dispute. Because factual determinations are for juries, not judges.

Any thoughts that such dismissals will come easily should now be out aside. Plaintiff’s bringing actions that fall within the applicable time period will be wise to add claims that treatment was not impacted by the pandemic.

And defense lawyers would be wise not to think that some conclusory affidavit from a hospital administrator will easily win them the day. Because I don’t believe they will.

We will be going someplace in discovery that we don’t usually go: Lawyers will now be looking at who else is in the hospital, what kinds of patients they were, how many beds were filled, etc., all in order to prove that care was (not) “impacted” by the pandemic.

An easy example: Patient goes to a New York City hospital for COVID in late June. Patient needs medication for condition. Wrong dosage is given by young intern who just started out on July 1 — instead of 0.5 mg it is 10.0 mg. Was treatment “impacted” by the pandemic?

Hospital argues that patient was only in hospital due to COVID.

Patient’s counsel argues that hospital was not understaffed and rushing around like chickens without heads at the time. There were, in fact, empty beds and staff available as the pandemic in NYC was slowing down.

The Governor just handed a big fat factual dispute to litigants throughout the state who, perhaps, thought the matter would be easily resolved in favor of medical practitioners.

Discovery may well be going where discovery has not gone before.

August 4th, 2020

Cuomo Signs Bill Limiting Medical Immunity

Back in April, the New York legislature passed a budget that included widespread immunity for medical practitioners dealing with the COVID-19 pandemic. But in addition to granting some immunity for negligence for COVID patients, it also granted immunity as to other patients in the hospital or nursing home.

That immunity has now been abolished for all patients other than the COVID ones. Cuomo signed the update yesterday.

The original immunity, forged amid a frantic medical crises, assumed that the all-hands-on-deck position of many medical and nursing institutions would result in mistakes elsewhere. So if, for example, a patient non-COVID stroke patient inadvertently didn’t get her medication because the hospital were shorthanded due to overwhelming COVID cases, the Legislature decided to grant immunity.

Public Health Law 3081(1)(5), where that immunity sat, has now been modified to remove that immunity for the non-COVID patients.

The modifications are seen here with showing additions in caps and strikethroughs for the deletions. All of subsection c is now gone as part of the definition of health care services for the purpose of the immunity bill:

That immunity existed — as per the following section 2(1)(b) — if the healthcare practitioner was “impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.”

(The potential immunity for COVID patients remains intact.)

Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.

It’s worth noting, because this will also be litigated, that the original immunity did not extend to gross negligence and certainly not to an intentional tort. So when suits are started now that allege malpractice during the immunity period, you can rest assured that gross negligence will be argued, in addition to claims that the medical care was not impacted by the COVID outbreak.

The changes are effective immediately.

The text of the bill is here:

Immunity-Removals-COVID Download

December 12th, 2019

A Feres Doctrine Repeal? Not so Fast…(Updated)

Lt. Rudolph Feres, for whom the Feres doctrine was named, parachuted into the darkness in the first hours of D-Day in 1944. He was killed later in a stateside barracks fire and his estate was barred from bringing suit. Photo via NY Times.

The rule is as old as government itself: You can’t sue the King.

The concept of “sovereign immunity” protects governments from suit unless they specifically consent. In the U.S. we are permitted to do so by various statutes, and in the case of the federal government, under the Federal Tort Claims Act.

Well, sometimes, anyway. Because there’s a big, fat hairy exception to that rule, and that exception is for those on active duty in the military. You can’t bring suit for acts “arising out of combatant activities.” The problem here is that it’s been extended to plain old negligence away from the battlefield.

Did your stateside barracks burn down? Sorry Charlie. Or in this case, sorry Rudolph Feres. We’re you raped by your drill sergeant? Tough noogies. Your wife died from blood loss after child birth because of a looooong delay in giving blood? You get our condolences and we wish you well raising the kid as a single parent.

The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.

And so, as I took the train home yesterday and read in the NY Times that a portion of the Feres Doctrine was to be repealed for medical malpractice under the pending National Defense Authorization Act, I was elated for those that had been victimized twice.

But. And you knew there had to be a “but,” didn’t you? According to the Military Times, most claims are limited to $100,000. And the military doesn’t pay the legal fees. And it doesn’t happen under the Federal Tort Claims act, but under some kind of (not yet written) administrative procedure. You can find the text here.

If the claims are limited to $100,000 this medical malpractice exception is virtually useless. Because in order to prove the claim experts will be required. The military wouldn’t be responsible for the original illness, after all. Only for that which was caused by medical malpractice. And you need experts for that.

And experts cost money. As do depositions and medical records. And with military personnel involved, probably lots of travel too.

The military, of course has unlimited resources to defend and hire experts. And all medical malpractice cases are vigorously defended.

Even a simple medical malpractice case can cost a plaintiff $25,000 – $50,000 when you figure in experts for liability, causation and damages. And that doesn’t include a trial.

And more — the legal fee is capped at 20%.

The soldier or sailor is unlikely to have that money. It will be lent by the attorneys. But which attorneys are going to pony up so much money with so much risk for so little fee? It’s a path to bankruptcy.

A $100,000 limit is a shonda. A shame. An embarrassment. It’s like putting a band aid on an amputated limb. Few people will ever find a lawyer to handle such a small case at such great risk and cost.

The text of the bill says that the Secretary of Defense can create regulations that allow them to pay more. Regulations that haven’t been written.

So what is the purpose of setting that $100,000 bar? Will future Secretaries of Defense be paying those damages out of their own budgets? Who shall they take the money from?

Why is Congress allowing the Secretary of Defense to set its own rules? Why isn’t this done under the existing rules of the Federal Tort Claims act? Why wouldn’t the Judiciary handle such a claim?

Congress should treat our soldiers and sailors better. If they are mistreated by the military doctors they are compelled to use they should have access to justice. Real justice. Not this pretend crap.

It’s often said that perfect is the enemy of the good, but I can’t see how this will end out as good if this bill is so watered down that the Secretary of Defense can so easily circumvent Congress.