Surgeons legally liable?

Classification: Law

The Summer issue of Michigan Journal of Gender and Law has published "An emerging ethical and medical dilemma: should physicians perform sex assignment surgery on infants with ambiguous genitalia?" by Milton Diamond and Hazel Beh. The article breaks new ground in examining the legal liability of physicians who treat sexual ambiguity in infants with genital surgery. See the full citation at the bottom of this page.

The authors note, "This article discusses the development of a surgical approach to treating intersex infants and others with genital anomalies that began in the late 1950s and becamse standard in the 1970s. Although professional literature has recently questioned the surgical approach to the treatment of infants, controversy surrounding treatment persists and the medical community now is divided. How sex reassignment for intersex infants became a routine recommendation of practitioners and how parents were persuaded to consent to such radical surgeries provide a cautionary tale that is relevant to both medicine and law."

Diamond and Beh analyze judicial treatment of professional standards. They find that the courts treat medicine differently from all other professional fields. In most fields, courts may find a professional negligent, even if he has followed the standards of his profession, if those standards are themselves negligent. However, in medicine the standard of care is assumed to be "a product of collective wisdom, and not of collective ignorance." Thus, practitioners who adhere to the prevailing standard of care are essentially invulnerable to claims of malpractice, even if an intervention appears to contradict reason.

However, practioners would appear to have considerable exposure to claims based upon failure to obtain informed consent. First, parents are counseled to act quickly; intersexuality is deemed an emergency by the medical establisment, though intersex conditions are typically not life-threatening, and though most genital surgeries are essentially cosmetic, not medically urgent. Second, physicians have typically not imparted complete information. They have represented genital surgery as necesssary and effective, though there was inadequate evidence of either claim, and they have not fully disclosed risks or alternative treatments (such as individual and family counseling). In addition, they have frequently engaged in deception. Informed consent would require physicians to explain to parents the uncertainty of the outcome of surgery.

The authors close by expressing optimism that the doctrine of informed consent, and the legal liability of physicians who fail to disclose, has potential to put a brake on surgeries. "Providing parents with a fuller explanation of the risks, including the recently reported failures of treatment and information about the successful adaptation of individuals raised without surgery, may well curb parental consent. After all, few parents would consent to such extensive treatment if physicians reveal that there is no scientific evidence supporting the premise on which treatment is base and that the child may ultimately reject the treatment and be left worse off for having undergone it."

Beh, Hazel Glenn, and Milton Diamond. 2000. An Emerging Ethical and Medical Dilemma: Should Physicians Perform Sex Assignment Surgery on Infants with Ambiguous Genitalia? Michigan Journal of Gender and Law 7. Available from Westlaw as 7 MIJGL 1.