The Free Press reports:
Fox Varian had her breasts removed when she was 16 years old as treatment for her gender dysphoria. At 19 she stopped identifying as transgender and filed a medical malpractice lawsuit against her psychologist and surgeon. She won.
People will be tempted to draw conclusions based on their political views around trans issues. Before we get into the politics, and whether legal blame should lie with the doctors, I think everyone can agree that it is an extremely bad outcome that a young woman had her breasts removed, and now deeply regrets it.
If the young woman had been an adult, it his unlikely there would be a lawsuit. Adults are deemed mature enough to consent to surgery – including surgery they later regret. So this isn’t about whether adults should be able to access gender change surgery. It is about whether under 18s should be able to – and how much time should be spent assessing whether this is justified.
The Free Press reports some details:
The trial was anchored by emotional testimony from Varian and her mother, Claire Deacon. Varian testified that Einhorn served as an enabler, repeatedly assuring her that the mastectomy she desired would greatly improve her well-being. Deacon testified that Einhorn browbeat her into consenting to her daughter’s surgery, threatening that she would otherwise commit suicide.
It is fair to say that generally you expect medical professionals to give dispassionate advice on pros and cons, not emotional blackmail.
“It’s so hard to face that you are disfigured for life,” Varian told the jury. The physical toll, she testified, includes scarring, lack of sensation in her nipples, and nerve pain where her breasts once were. She will never be able to nurse an infant. “No amount of reconstruction,” she said, “is ever going to bring back what I lost.”
Again, regardless of who is legally to blame, everyone should feel sympathy for Varian that she has ended up like this.
Varian’s attorney argued that the defendants’ actions didn’t reflect what a reasonable professional in their respective fields would have done.
Deutsch did not seek to undermine the basic principles of this medical field during litigation. He and the three defendants’ attorneys maintained a consensus throughout Varian’s trial that mastectomies are an appropriate treatment for certain minors with gender dysphoria—a psychiatric diagnosis characterized by persistent distress over a conflict between a person’s gender identity and birth sex.
So they didn’t argue no young person should never be able to have this surgery – just that in this case they rushed to judgment without due care.
The lawsuit also accused both Einhorn and Chin of failing to thoroughly explain the risks and benefits of the surgery as well as alternatives with Varian and Deacon, who was responsible for consenting as the parent of a minor. In particular, Deutsch alleged that the providers had each failed to properly caution that the surgery might not meet the teenager’s expectations or address her psychological struggles, and in particular, that she might regret it. Einhorn and Chin, however, each asserted that they had done so.
Risks, benefits and alternatives are vital for informed consent.
At the crux of the case was Einhorn’s referral letter for surgery, which made no mention of what Deutsch insisted was a required diagnosis: gender dysphoria. Einhorn wrote that Varian suffered from body dysmorphia, which involves overwhelming rumination over a perceived physical flaw—a diagnosis that is actually a widely accepted reason not to perform plastic surgery.
“That letter to me is a stop sign,” testified Schechter, who is chief of gender-affirmation surgery at Rush University Medical Center in Chicago. “I looked at this case really hoping—and even with an expectation that there would be enough—to support Dr. Chin’s care,” he said. “And I couldn’t do that.”
So this case may be an outlier in terms of bad practice. Time will tell as other lawsuits go through other courts.
Einhorn said Varian’s depression didn’t meet the criteria for inclusion at the time. However, Chin acknowledged that diagnosed conditions need to be in such a letter, even if they are under control. And Deutsch pointed to Einhorn’s session notes that characterized Varian as depressed and in a state of apparent personal chaos. The psychologist also documented in his notes that she had impaired judgment.
Major decisions by a young person with impaired judgment is another wise.
Following more than five hours of deliberation, the jury found that 70 percent of the fault for Varian’s injury lay with Einhorn, and so the burden of the $2 million award was split proportionately between him and Chin. The award included $1.6 million for past and future pain and suffering and $400,000 for future medical expenses.
Hopefully this will encourage other medical professionals to be cautious before proceeding with such major surgeries on under 18 year olds.
