In a landmark ruling, a New York jury awarded a 22-year-old ‘de-transitioner’ $2 million after finding two doctors liable for medical malpractice tied to a double mastectomy performed when she was just 16.
Jurors were not asked to weigh in on the morality of so-called ‘gender affirming care,’ but rather to decide whether the doctors met medical standards of care when recommending and performing this permanent, life-altering procedure on a minor.
A Westchester County jury found psychologist Kenneth Einhorn and plastic surgeon Simon Chin liable for medical malpractice for failing to meet the standard of care when approving and carrying out the surgery on patient Fox Varian.
This case marked the first time in the U.S. that a ‘de-transitioner’ has brought a medical malpractice case to a jury and won. Jurors awarded Varian $1.6 million for pain and suffering and an additional $400,000 for future medical expenses.
The Plaintiff
In December of 2018, Fox Varian – a 15-year-old girl with a number of psychiatric issues, including autism – told Dr. Einhorn she might be transgender. Soon after, she began publicly presenting as a male and wearing a chest binder to conceal her breasts.
Nine months later, Dr. Einhorn wrote a referral letter for a double mastectomy, or so-called ‘top surgery.’ After just two meetings with the plastic surgeon, Dr. Chin, and only 11 months after deciding to live as a boy, Varian’s breasts were surgically removed at age 16.
The Trial
On Monday, the AM Update team spoke exclusively to independent journalist Benjamin Ryan of Hazard Ratio on Substack, who was the only reporter to sit in the courtroom throughout the entire three-week trial.
He said the defense initially argued there were no firm standards of care in this field:
“It was very difficult to try to pin down the defendants to try to get them to admit there even was a standard of care. Both of them said, ‘Well, there isn’t a standard of care because this is such a novel and experimental treatment, giving these mastectomies to minors for gender dysphoria. But ultimately, they got worn down by the very aggressive bulldog tactics of the plaintiff’s attorney. His name is Adam Deutsch. He’s a personal injury attorney in White Plains, and they were ultimately admitted that there were some standards that ultimately they did violate. And the one thing that they really agreed upon was that a young person before having this type of surgery should have a stable gender identity for at least six months.”
Ryan said Dr. Einhorn referred Varian to an LGBT clinic in Albany, New York, to seek specialty care, and, at that clinic, she opened up about how she was really feeling about her identity:
“The real smoking gun in this case was the fact that the psychologist, whose name is Kenneth Einhorn, he was really out of his depth, and he acknowledged that he really didn’t have expertise in treating transgender young people. And so he said to Fox Varian and to her mother, you should go to seek specialists transgender care at what’s called the Pride Center up in Albany… They went there only twice because it was such a burden to get there. But while she was there – this was in July of 2019, four and a half months before the surgery – she told the Pride Center things that she hadn’t told her mother and that she really hadn’t been honest about with her psychologist. She said that she was unsure about her gender identity, and, crucially, she felt pressure to decide by people all around her.”
As Ryan explained, those comments should have raised red flags:
“Kenneth Einhorn, the psychologist, never asked the Pride Center for the notes from those sessions that she went there for. And so that meant that he didn’t know that she felt this way. And that meant that Dr. Chin, the plastic surgeon, never heard about it either. And Dr. Chin testified that had he known that only four and a half months before he ultimately did this surgery that she was still feeling unsure about her gender identity, he wouldn’t have conducted the surgery. So, that was a real linchpin in the case.”
Furthermore, Ryan detailed how the plastic surgeon and psychologist never spoke to each other directly prior to the surgery:
“[Dr. Chin] met with her twice during the nine week period leading up to the mid-December 2019 mastectomy that he performed on Fox Variant. And he was very proud of himself. He said, ‘Oh, understand, I met with her not only once, but twice before I had her breasts removed.’ She was in her mid-teens and he just looked at this letter, and he made a presumption, and that was a huge indictment upon him by the plaintiff’s attorney, that both he and Einhorn, the psychologist, made assumptions and inferences and didn’t bother to communicate with each other directly. He just presumed the correct diagnosis must be gender dysphoria. But neither he, nor Dr. Einhorn, ever wrote the diagnosis ‘gender dysphoria’ anywhere in their case notes, despite the fact that it is widely accepted that that is the required diagnosis for having this very surgery.”
Varian, meanwhile, testified to feeling immediate regret from the moment she took the bandages off. The shock of the procedure, combined with embarrassment, kept her from being open about her feelings for three years before ultimately deciding to embrace reality that she is a girl.
Ryan believes more trials like this one are coming:
“There are a lot of de-transitioners who are waiting in the wings… I’ve spoken with some legal experts who say that this will encourage other lawsuits to come forward. They’ll feel more emboldened, and that that could, in turn, drive up malpractice insurance rates and make this feel more forbidding financially for people to work in and it might also scare away certain providers who are afraid of reputational damage and just the general stress and horror of being sued.”
Megyn’s take? “Good. Lets pray thats true.”
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