The Post and Courier (South
Carolina)
May 25, 2015
Lawyers prepare for medical
malpractice trial in rare ‘intersex’ lawsuit
by Lauren Sausser
A Richland County jury may decide later this year if
the Medical University of South Carolina, Greenville Health System and
the state child welfare agency are guilty of medical malpractice for
removing a baby’s penis before he turned 2 years old.
Pam and Mark Crawford say surgeons in Charleston and
Greenville performed unnecessary sex assignment surgery on their son —
named M.C. in court records — when he was 16 months old. M.C. was born
with both male and female reproductive organs
[or
rather, with reproductive organs that were not clearly male or female],
but “there was no medical necessity to remove any of his genital
tissue,” his adoptive parents said in their lawsuit.
Doctors should have let M.C. eventually choose a gender
for himself, they contend.
“Our client’s penis was surgically removed for no
medical reason. He’s going to have to live with that for the rest of
his life,” said attorney Anne Tamar-Mattis, the legal director for
Advocates for Informed Choice. “No surgery he can get can give him back
what he lost.”
The Crawfords adopted M.C. from state custody after the
S.C. Department of Social Services approved surgery that made him
biologically female
[no,
only "ostensibly female"]. But it soon became
clear, his mom said, that M.C. wanted to be a boy
[or rather, felt himself to be a boy]
— a decision his adoptive parents respected.
“He made the social transition with the name change at
7,” Pam Crawford said. “He’s just like any other boy. He’s been very
well accepted in the community and the school and it’s really just not
been an issue.”
The Crawfords, who live in Columbia, filed federal and
state lawsuits two years ago against MUSC, Greenville Health System and
DSS.
The court dismissed
their federal lawsuit in Charleston
earlier this year. Defense lawyers successfully argued that doctors
weren’t aware when they operated that they may have violated M.C.’s
civil rights.
... on January 26, 2015, the Court
of Appeals for the Fourth Circuit reversed and
remanded with instructions to dismiss the complaint. The
Fourth Circuit stated that it did not “mean to diminish the severe harm
that M.C. claims to have suffered” but that a reasonable official in
2006 did not have fair warning from then-existing precedent that
performing sex assignment surgery on sixteen-month-old M.C. violated a
clearly established constitutional right.
|
“It’s not clear if a different court in a different time
in a different place would have decided it the same way,” Tamar-Mattis
said. “The court did not rule if they did, in fact, violate his civil
rights. They left that question open.”
MUSC attorneys would not comment on this case
specifically, but a spokeswoman for the hospital said, “If at any time
there is controversy or disagreement about a care plan, the case can be
referred to that ethics committee for a decision.”
A spokeswoman for Greenville Hospital System declined to
comment on the case.
Meanwhile, the state lawsuit in Richland County is
moving forward. DSS denies the allegations, court records show. The
case may be tried by a jury sometime after Nov. 15.
“We do feel that our case is strong,” Tamar-Mattis said.
“A lot more will come out at trial.”
This may be the first public case of its kind, she said.
Similar lawsuits have been settled privately out of court in other
states.
“The reason we’re doing this is so some change is made.
That’s really what we see as what’s important,” Pam Crawford said. “To
make a settlement and make it a private thing, it’s not what we want to
accomplish with this.”
They also want money to pay for treatment that M.C. will
need during and after puberty, but the Crawfords have not named a
specific amount in their lawsuit. They don’t yet know what his
treatment will entail or how much it will cost.
“We monitor him in terms of hormone levels, maybe once a
year,” Pam Crawford said. “I don’t think there’s a specific set date
(for treatment) ... but it’s coming up in the next couple years.”
M.C., now 10 years old, may testify at the trial, but
he’s not overly preoccupied with the lawsuit, his mom said.
“We’re certainly not hiding it from him, but it’s not a
huge concern for him,” she said. “I don’t know how much he understands
of it — not all.”
The specific intersex condition he was born with, called
ovotesticular disorder of sexual development, is rare. It only affects
one in 83,000 infants, but an estimated one in 2,000 children are born
with genitals that are “visibly intersex,” the World Health
Organization reports.
“It’s something like 5 percent every year are born with
genetic bodies, sexual bodies that operate differently than we’re used
to,” said Alison Piepmeier, director of women’s and gender studies at
the College of Charleston. “Five percent, that’s significant.”
Gender is based on several complex variables, she said,
and children should be allowed time and space to express who they
really are. Luckily, she said, society is talking more openly about
gender identity than ever before.
“I’m seeing college students, some that I know and many
that I don’t know, who are beginning to recognize themselves in a
different way,” Piepmeier said. “In the last 10 years ... it’s far more
visible. We’re still perhaps a little uncomfortable by it, but I’m
seeing that less and less, especially among people who are younger.”
Earlier story
