Behind the Scenes:

• • The use of hormones and surgery to treat gender dysphoria, while becoming more common in recent years, remains a highly controversial and medically complex issue, particularly for vulnerable patients with significant mental health comorbidities.
  • Major medical organizations have published “Standards of Care” for such gender-affirming interventions, but these are self-imposed guidelines by activist groups, not binding regulations, and critics argue they are based more on ideology than sound scientific evidence.
  • Providers face a challenging balancing act in respecting patient autonomy and providing the care they request, while also objectively assessing whether mental health issues or other factors make them a poor candidate for whom the risks clearly outweigh the benefits.
  • With the field still rapidly evolving and clear, consistent standards of care lacking, cases like Amanda’s are likely to become increasingly common, forcing courts to grapple with difficult questions around informed consent, psychiatric screening, and a physician’s “duty to do no harm.”
  • The outcome here could set major precedents impacting how gender dysphoria is diagnosed and treated, the role of psychological assessments, and when a mentally ill patient can be deemed competent to undertake such irreversible procedures.

Legal Analysis:

• • Plaintiffs must show defendants breached the standard of care and caused foreseeable injuries by: 1) Prescribing hormones/doing surgeries with inadequate mental health screening; 2) Misrepresenting necessity and risks of procedures; 3) Failing to obtain truly informed consent.
  • Negligence claims require proving the defendants failed to act as a reasonable provider would under the circumstances, while medical malpractice requires showing deviation from accepted standards of professional practice.
  • Establishing the standard of care will rely heavily on expert testimony, with both sides presenting competing opinions from medical and mental health specialists on the appropriateness of the defendants’ actions.
  • Defendants will argue they were respecting patient autonomy, that the standards of care were and are unsettled, that they did meet the requirements of activist groups, and that Amanda’s injuries were an unforeseeable result of a “trans regret” minority.
  • Under NH law, doctors can be liable for battery for procedures beyond the scope of a patient’s consent, and for lack of informed consent if they misstate the risks – but the patient’s burden is high.

FAQs:

• • What makes a patient “vulnerable” such that gender-affirming care may be inappropriate? Serious mental illness, developmental disabilities, a history of abuse/trauma, or other factors significantly impairing competence and judgment.
  • How does a doctor legally obtain “informed consent” for treatment? Disclose the condition, nature and purpose of proposed procedures, potential risks and outcomes, and alternatives – but patient must have capacity to understand and voluntarily consent.
  • What are the applicable medical standards of care for gender dysphoria? It’s a matter of debate – influential groups have guidelines some consider the standard of care, but others see them as ideologically-driven and evolving.
  • What’s the most difficult element for plaintiffs to prove here? Likely causation – that BUT FOR the defendants’ negligence, the unwanted treatments and injuries would not have occurred. Amanda’s mental state makes that complex.
  • How might this case impact similar lawsuits going forward? If Amanda prevails, expect more “detransitioner” suits arguing providers failed gatekeeping duties for vulnerable patients. If defendants win, it may insulate doctors relying on emerging standards of care.

Key Facts Alleged:

• • Over 14 years, the defendants put Amanda, a psychologically vulnerable patient, on a path of increasingly invasive and irreversible hormonal and surgical interventions.
  • Despite her clear mental health challenges and growing instability on hormones, providers continued to escalate treatment and recommend additional procedures.
  • Informed consent was inadequate, as Amanda was not competent and doctors failed to disclose how unproven treatments were for patients like her.
  • Defendants did not conduct proper psychological assessments or ensure mental fitness before major interventions like mastectomy/hysterectomy.
  • No doctor along the way advised her to stop or re-assess, and in fact they reassured her she was on the right path to “live as a male.”
  • By the end, Amanda was left with permanent physical alterations, ongoing pain, emotional distress, and an inability to ever bear children.

Supporting Evidence:

• • Medical records showing the defendants knew of Amanda’s significant psychiatric history and deteriorating mental state on hormones, but continued treatment.
  • Informed consent documents that inadequately conveyed risks and alternatives.
  • Medical standards of care at the time regarding treatment of gender dysphoria in mentally ill patients.
  • Expert testimony that the defendants failed to meet those standards by putting an unstable patient like Amanda on a rapid path of irreversible interventions.
  • Amanda’s own narrative of how she felt helpless to question the treatment path she was put on, and only realized years later how much she had been harmed.

Counter-Arguments:

• • Defendants respected Amanda’s consistently stated desire to transition and autonomy to make her own medical decisions.
  • Given evolving nature of standards of care, they did meet requirements of best practice at the time by relying on patient’s self-assessment.
  • Most patients do not regret transition so Amanda’s “detransition” outcome was not foreseeable.
  • She went years continuing to request and consent to treatment so doctors had no reason to doubt her competence or certainty.
  • Even if individual steps in isolation fell short, overall course of treatment was appropriate and met standards of care.

FAQs:

• • What were the standards of care for assessing mental competency to transition? A supportive letter from a single mental health professional after a brief assessment – but no requirement for in-depth evaluation or ruling out other conditions, despite high comorbidity rates.
  • Do providers have to refuse a course of treatment if a patient clearly wants it? No medical procedure is without risks – but if risks clearly outweigh the benefits or the patient lackscompetence to assess them, providers should refuse treatment on ethical and legal grounds.
  • How can a patient consent to procedures but later claim not to have understood the risks? Many of the side effects Amanda suffered are known risks of transition procedures – but when a patient is mentally ill, their understanding is compromised and consent may not be valid.
  • What are the most commonly cited standards for informed consent? Under NH law, doctors must inform the patient of diagnosis, nature and purpose of treatment, risks and consequences involved, and reasonable alternatives, and obtain voluntary consent.
  • What do studies show about the prevalence of transgender “regret” or de-transition? It’s difficult to quantify, but even very low-end estimates of 1-2% mean that hundreds of vulnerable patients each year may similarly feel misled.

FAQs:

• • Do providers have to proactively investigate a patient’s mental competence? If there are red flags, a reasonable provider doing a risky procedure should ensure the patient can validly consent and isn’t being unduly influenced.
  • How can multiple providers be liable for the overall course of care? Under “joint and several liability,” all contributors can be liable for the full harm even if they played a minor role – the idea is to make the victim whole.
  • How does providers’ reliance on certain standards impact their liability? It’s relevant evidence they met some recognized standard of care – but ideological bias in guidelines doesn’t preclude a finding of negligence.
  • If Amanda technically consented, how can she claim otherwise after the fact? A fundamental lack of consent can be found if the patient lacked mental competence or the provider knew consent was based on misrepresented risks.
  • If transition is the accepted treatment for gender dysphoria, how is it malpractice? For patients with serious co-morbidities like Amanda, a more cautious approach may be required and permanent interventions may be negligent.

Potential Defenses:

• • Patients’ Rights: Respecting a patient’s bodily autonomy and repeatedly stated desire to transition was appropriate even if outcome was undesired.
  • No Duty to Refuse: Absent declaration of incompetence, doctors had to accept Amanda’s treatment decisions, and not all patients with mental illness are unfit.
  • Compliance with Standards: Following certain recommendations in good faith at the time negates any gross negligence, even if standards were imperfect.
  • Evolving Field: The novelty and rapid evolution of transgender medicine makes it difficult to declare a standard of care was clearly breached.
  • Informed Consent Documented: Amanda was informed of and accepted general risks, even if every specific outcome wasn’t predicted – no treatment is without complications.

Key Evidence Battles:

• • Experts clashing over whether certain guidelines are a valid standard vs. ideological activism, and if doctors should rely on them for mentally complex cases.
  • Whether providers’ disclosures actually conveyed to someone like Amanda how little was known about long-term outcomes and what could go wrong.
  • If earlier psychiatric records show Amanda’s instability and paranoia, calling into doubt the providers’ claims they thought she was competent.
  • Testimony from other “detransitioners” on how they were misled and regret it vs. satisfied transgender patients who don’t regret similar treatment.
  • Proving Amanda’s damages were caused by negligence rather than an unavoidable bad outcome will rely heavily on expert testimony on all sides.

FAQs:

• • What are common defenses in informed consent cases? That the undisclosed risk was too rare to be material, that plaintiff’s decision wouldn’t have changed, or that consent forms did disclose risks in general terms.
  • What’s the relevance of other “detransitioners'” testimony? Shows doctors know or should know irreversible treatment comes with a significant risk of regret – making unsure candidates like Amanda a foreseeable risk.
  • How hard is it for plaintiffs to prove doctors violated informed consent? With a clear-headed plaintiff not disclosing a known material risk should suffice – but with an unstable plaintiff, issues get murkier.
  • Are certain standards a complete liability shield for providers? No – any standard is just evidence of what’s reasonable, but negligence is still possible, especially when experts dispute the validity of the standard.
  • What’s the fastest way this case could resolve before trial? Settlement is always most likely – but it would probably take a lot given the huge damages and bad publicity. Defendant’s best shot is attacking the evidence to get claims dismissed on summary judgment.

If defendants found liable for malpractice/negligence:

• • Economic Damages: Compensation for medical bills to treat unwanted procedures, lost past and future income from missed work and diminished earning capacity.
  • Non-Economic Damages: Pain and suffering, emotional distress, loss of enjoyment of life from disfigurement and permanent infertility.
  • Reversing Procedures: Potential for insurance coverage of breast reconstruction and hormone cessation under malpractice award.

If defendants found liable for lack of informed consent:

• • Similar economic and non-economic damages for the undisclosed outcome that actually occurred and was material to decision.
  • Argument that punitive damages warranted for egregious violation of patient rights if doctors knowingly downplayed or concealed risks.
  • Establishing precedent that certain ideological standards alone may not satisfy informed consent duties for risky, irreversible procedures.

If defendants found liable for conspiracy/infliction of distress:

• • Potentially uncapped damages for severe emotional harm if distress was intended or recklessly disregarded as likely.
  • Punitive damages more likely for extreme and outrageous pattern of conduct between providers to railroad unstable patient into harmful path.
  • Message that even if individual steps are defensible, an overall course of treatment can still be negligent and tortious with foreseeable bad outcome.

If defendants prevail:

• • Likely chilling effect on similar “transition regret” malpractice cases going forward, as even fairly extreme fact patterns may not suffice.
  • Doctors more insulated when relying on certain controversial standards of care, even if not officially adopted as binding.
  • Difficult balance between patient autonomy and doctor’s duty to “do no harm” may tilt more towards deference to stated patient wishes despite instability.

FAQs:

• • What’s the range of damages the plaintiff could recover if she wins? For severe and permanent injuries like lost fertility, awards could easily be millions for medical costs, lost income, and pain and suffering over a lifetime.
  • Would a jury get to decide the amount of damages? Yes, if the case does not settle, a jury would determine both whether the defendants are liable and if so, how much to award to fairly compensate the plaintiff.
  • What’s the likelihood this case settles versus going to trial? Impossible to predict, but the sensational facts, complex medicine, and high stakes on both sides point more toward a trial. But most cases do ultimately settle to avoid the risks.
  • How might this verdict impact access to transition care going forward? A big plaintiff win on informed consent could make providers much more reluctant to treat without in-depth psychological screening to avoid liability for bad outcomes.
  • Do the defendants’ insurance policies cover malpractice for transition care? Most likely yes, malpractice policies cover all treatment within the doctor’s scope of practice. But insurers may start excluding coverage for it going forward.

Disclaimer

This legal analysis of the gender transition medical malpractice lawsuit is provided for general information and discussion purposes only. It does not constitute legal advice and does not create any attorney-client relationship.

If you are considering legal action against a healthcare provider for malpractice, lack of informed consent or any other claims, you should consult with an attorney licensed in your state for advice specific to your situation. Most medical malpractice lawyers provide free, confidential consultations and do not charge any legal fees unless they recover compensation for you.