Richard Jaffe, Esq.
Recently, I got my hands on the amended complaint in the Chloe Brockman v Kaiser lawsuit. If you’re a physician performing gender reassignment surgery (GRS), or a health care provider involved in any part of the sex change process for children, you might want to sit down for this one.
Here Is the Gist of the Case
Chloe Brockman, born female, was diagnosed with gender dysphoria. From the age of 13 to 17, she underwent a series of procedures to change her sex/gender (and yes, I know that there is a recognized difference). The process included puberty blockers, counseling, cross-sex hormonal treatment, and finally, a bilateral radical mastectomy. However, after completing her transition to a man, she had a change of heart/mind and stopped identifying as a man.
She’s now suing all the health care providers and facilities who assisted in her transition. The crux of her lawsuit? Medical malpractice. She alleges that the doctors who aided her transition didn’t meet the standard of care.
Here’s a copy of the amended complaint: Amended Complaint
The Key Parts of the Complaint
The Violation of the Standard of Care. The complaint lays out the alleged standard of care violations in detail. It accuses the defendants of failing to properly evaluate and treat Chloe’s medical and mental health conditions, overemphasizing her gender dysphoria symptoms, and manipulating her and her parents into making decisions based on false and misleading information. The complaint also alleges that the defendants exaggerated Chloe’s suicide risk to pressure her into transitioning (page 12, para. 14).
The standard of care is essentially what the majority of competent physicians would do given the patient’s specific circumstances. Historically, state courts used a “locality rule,” meaning an expert physician had to testify about the standard of care in a particular locality. But this rule has faded as national consensuses have evolved. However, I believe that doctors in large California cities (the case is in Oakland County, California) would have a much different view of the standard of care than those in southern or deep red western states, or even in smaller California cities, especially for a procedure as controversial as this one. But the urban and California venue generally favors the defendants on the standard of care issue.
Of course, talk is cheap in a complaint. It’s the paperwork, specifically the medical records and consent forms, that really matter in malpractice cases. Just because a patient (and the consenting parents) change their minds about a procedure doesn’t ordinarily give rise to a malpractice claim. If I were defense counsel, I’d seriously consider filing a third-party contribution claim against the parents, since they gave their consent (as they must have, since minors can only be treated with parental consent).
Lack of Informed Consent. Speaking of consent, here’s what the complaint says about that:
Regarding informed consent, among other things, Defendants obscured and did not disclose the important potential results, risks of, and alternatives to this transition course of treatment… Defendants falsely represented that Chloe presented a high risk of suicide unless she transitioned. Chloe’s parents were also coercively asked if they ‘would rather have a dead daughter or a live son.’… These, among other issues, represent a gross breach of the standard of care and an egregious failure of informed consent. A reasonable person in Plaintiff’s position would not have agreed to the transition treatment if properly and adequately informed of the risks. (page 16 para 58)
What Shocks Me Most About These Allegations
As a health care attorney who primarily deals with controversial treatments, what I don’t get is the lack of reference to a comprehensive informed consent form for each step of the transition treatment. It seems like a glaring oversight not to have an extensive consent form. Hard to believe all these docs omitted it. In fact, I don’t believe that to be the case, (albeit based on nothing specific, but it seems Health Care law 101).
How Much Consent Is Necessary?
In California, informed consent is based on what a reasonable patient would consider important or relevant information in deciding whether to accept or reject the proposed treatment. It’s not about what the physician thinks the patient should know. And that’s a big difference. So, in a case like this, I’ll just say that it’s going to be a wild ride.
The Knock on the Case
Critics argue that this case is an attempt by radical conservatives to undermine the rights of kids with gender dysphoria to align their physical form and chemical makeup with their gender identity. Maybe so, but depending on how big of an issue it is about transgenders wanting to revert to their birth sex/gender, it could spell trouble for physicians performing any part of these procedures.
Given the multiple high-profile attorneys on the case and some other aspects, it feels like a movement case, as opposed to a simple malpractice case where the goal is a quick settlement. The multiple big-shot attorneys suggest that some conservative organization is bankrolling this, and if so, this is just the beginning. They’re going to use this case to troll for new clients to file new cases. We’ll see how many of these transgender surgery patients are unhappy with their decisions.
Medicine is a business, and the cost of doing business is a monetizable risk. The goal of this and any subsequent cases is to force the medical malpractice carriers to either exclude the procedure from coverage or make the supplemental coverage payments so large as to force health care practitioners to stop doing them. Apart from the insurance issue, if they do get a verdict, it will certainly serve as a cautionary tale to others in the field. In short, it seems to me that these folks are intent on driving the sex change doctors out of business or at least run for the hills and stop doing the procedure.
Opposite Sides, Radically Different Treatment by California (and Washington) Law
Mindful of the risk of being vilified as insufficiently gender-sensitive and woefully unwoke, I would be remiss not to point out the difference in how the law treats the different sides of the transexual change/sexual orientation constellation of personal issues. As far as I can tell, there’s no law prohibiting health care practitioners from helping teenagers change their physical equipment or complete a change of gender. However, California and the State of Washington each have statutes that prohibit health care practitioners from engaging in SOCE (sexual orientation change efforts), which is basically talk therapy to help people keep the sexual orientation based on the sex at birth (in other words, talk people out of being gay).
So, the bottom line is that it’s perfectly okay for a doctor to perform a radical bilateral mastectomy on a female child with healthy female breasts, give all kinds of puberty-stopping hormones, because in her 13 or 16 years of life on this earth, she has decided she doesn’t feel like a girl/female. But it’s a statutory violation of the standard of care to try to convince the same young girl to stay a female and not chop off her breasts, or to fight-off urges of same-sex attraction.
That doesn’t make much sense to me, but I am sure it makes perfect sense to the YoYo’s at the medical boards and legislatures in California and Washington. (I confess to have a bias and a dog—or young pup—in this fight, because I happen to think that both the Washington and California laws restricting the speech of these SOCE practitioners is unconstitutional, and I suspect that the Supreme Court is going to agree if and when it accepts for review the 9th Circuit’s affirmance of the law in Tingley v. Ferguson. And I am hoping that happens since it would positively impact a couple of my First Amendment professional speech cases.)
As a guy who has done a lot of medical defense, I’m usually sympathetic to defendant docs. But in this case, I tell you docs doing these procedures, you better have very, very good paperwork, and indeed way beyond papers to defend against what appears to be a well-funded attempt to stop these procedures.
Published October 7, 2023
About the Author
Richard Jaffe is a health care litigator, focusing on cutting-edge medical/legal issues. He has a JD from Columbia Law School where he was a member of the Columbia Law Review and a Stone Scholar and a BA with honors from the Hebrew University of Jerusalem where he received the prize for academic excellence in the History and Philosophy of Science.
He is admitted to practice in California, Texas, and New York, but works on litigation and criminal and administrative investigations involving significant health care issues throughout the country.