Fenway Community Health has claimed Federal protection and immunity from litigation for the misdiagnosis and injury caused to the de-transitioner July Carlan, known as “Shape-Shifter.” The Federal Tort Claims Act (FTCA) provides nationwide malpractice insurance for qualified health centers. Health center employees are considered government employees, and any malpractice lawsuit must be filed against the United States government.
The protection for healthcare providers is intended to allow them to treat patients without fear that a mistake will lead to devastating financial consequences. The implications of providing this blanket protection for clinics that offer gender-affirming care is a major concern for those seeking care for mental health issues. Not all clinics that provide gender-affirming care are FTCA-protected, but many of them offer low-cost services to patients.
The complaint filed on behalf of “Shape-Shifter” makes a compelling case of not only alleged negligence but a profiteering scheme on the backs of vulnerable patients seeking help. The lawsuit alleges that Fenway Health “willfully abandoned established, evidence-based, generally accepted clinical guidelines in providing transgender health care as a matter of policy, and in treatment of Plaintiff.”
The lawsuit further states that abandoning the clinical guidelines for care has no scientific justification and instead is driven by “market forces” to “increase the number of transgender patients.”
The actual diagnosis for the patient is “internalized homophobia” rather than the diagnosis of “gender dysphoria.” Internalized homophobia is self-loathing that comes as a result of societal and familial shame for being attracted to the same sex. The suit states that Fenway Health knowingly abandoned clinical guidelines and gatekeeping standards that are intended to protect the patient from harm. That is also synonymous with the Hippocratic oath doctors take to “do no harm.” The alleged intention to abandon these clinical standards caused a failure to uncover the true diagnosis of internalized homophobia.
Shape-Shifter exhibited several psychological conditions, including “depression, anxiety, compulsiveness, high-risk sexual behavior, emotional volatility, and unstable identity.” While these symptoms were listed in his medical records, the potential diagnosis of internalized homophobia was never considered. The lawsuit further alleges, “Defendant de facto converted a gay man to transgender because it viewed all psychological ailments through the transgender lens and failed to make a differential diagnosis.”
The lawyers for the plaintiff were aware that Fenway Health has federal protections under the FTCA but brought this suit under the nondiscrimination clause of the Affordable Care Act. It states that an individual shall not be excluded from or denied benefits if the health program receives federal funding. The plaintiff’s lawyers determined that Fenway Health excluded Shape-Shifter from proper clinical practice, diagnosis, and necessary gatekeeping.
Despite this, the defense has pointed to Hui v. Castaneda (2010) that stated “section 233’s immunity is ‘absolute’ and ‘bar[s] all actions against’ that arise from ‘the performance of medical or related functions.'” The motion to dismiss alludes to Fenway Health’s protections from liability in malpractice litigation started in 2010. This is when the Affordable Care Act “expanded eligibility for FSHCAA liability protections to employees, officers, board members and contractors of qualifying free clinics.”
In other places around the country, clinics that offer gender-affirming care are being priced out of the market due to higher medical malpractice insurance premiums. Insurance companies have refined measures for measuring risk as it is the only way to make money and stay competitive in the market reliably. When insurance companies start to deny medical malpractice insurance to health clinics or give extremely high quotes, that is a reliable indicator of the risk associated with these procedures.
While the alleged malpractice in the case of Shape-Shifter involved an adult male, there is an increased concern about the harm being caused to children who are misdiagnosed and provided harmful, unnecessary treatment. A long-term study published in 2021 found that 87.8% of pre-adolescent boys with gender dysphoria desisted by the time they reached an average age of 20.58 years old. This data indicates that the vast majority of people with gender dysphoria will grow out of it when they reach adulthood.
Health clinics that capitalize on high-dollar treatments should be accountable. The main way to hold them to account is the ability to litigate in court if misdiagnosis and harm is done to the patient. Many clinics are struggling to find affordable malpractice insurance that covers these treatments. However, many clinics have still been granted immunity from litigation by the United States government. Some of these clinics include Fenway Health, Callen-Lorde, Los Angeles LGBT Center, Crescent Care, Shawnee Health, and Santa Rosa Community Health. Anyone obtaining healthcare from these institutions will have to face the United States government in court in order to hold clinics responsible for negligent diagnoses and treatments.