One out of 1,500 to 2,000 births results in a child with atypical genitalia, sex organs that didn't fully form into a penis or vagina, or sex organs that developed into a combination of both (e.g. intersexism). In many cases involving ambiguous genitalia, it's common for the doctor to recommend parents choose their child's sex and alter the child's physical characteristics to match. While this may seem like a good idea in the moment, it can actually result in long-term harm to the child. However, is it medical malpractice for a doctor to perform sex assignment on a child? It depends on the situation. Here's what you need to know.
The Standard of Care
Medical malpractice is based on negligence laws. Doctors owe patients a duty and may be found negligent if they violate that duty by their actions or failure to act in a situation. Whether a doctor's actions can be considered negligent is determine by the standard of care for the industry he or she works in. If the doctor's actions don't meet the standard of care, then the he or she could be found guilty of medical malpractice.
The problem when it comes to children with intersexed or ambiguous genitalia is, historically, the standard of care for them was to perform gender assignment. This is likely because it made it easier for the children to integrate into a society that didn't understand or accept people who did not fit into the binary view of sex and gender that was prevalent at the time. Although society is slowly changing in this area, the medical standard of care is still to "normalize" genitals whenever possible. So the act of performing sex assignment on a child may not be considered medical malpractice in and of itself.
When a Doctor May Be Liable
Many times, the sex assignment is made at the parents' request. However, a doctor may put pressure on the parents to make a decision or fail to provide adequate information so the mother and father can make an informed choice. In this case, it may be possible to sue the healthcare provider for medical malpractice based on failure to properly inform or warn of the consequences, especially since there is quite a bit of information now about the potential harmful effects of assigning the wrong sex/gender at birth.
A doctor may also be held liable for damages if he or she fails to obtain the patient's consent. Since babies are too young to verbalize or even understand what consent is, the parents or legal guardians are considered their proxy and able to make decisions for them. However, one case is calling that stand into question.
Some adoptive parents are suing the State of Carolina for gender assignment surgery performed on their adoptive son when he was in the foster care system. The child was born intersexed, but the doctor performed a feminizing surgery on him when he was 16 months old. Although he was raised as a girl after the surgery, he later identified as a boy and has chosen to continue life in that gender.
The parents feel the surgery the doctor performed was medically unnecessary and that the boy should have been allowed to choose for himself what he wanted when he was old enough. The case is exploring whether social workers and the doctor had the right to make that decision for him during a time when he was unable to consent.
A third way the doctor may be responsible for damages is if he or she accidentally mutilates or damages the child's genitals badly enough to require sex reassignment. Some children's genitalia do need surgical correction because the way the area formed prevents important bodily functions (e.g. urination) from working in a healthy way. If the doctor botches the surgery and causes significant harm, your child may be entitled to compensation for damages and losses because of that.
This is a tricky area of medical malpractice, and it's essential you consult with an attorney who can provide insight into the legal challenges you may encounter as well as provide advice on the best way to handle your case. For more information or assistance, contact medical malpractice attorneys services.