Today's Paper News Sports Features Business Opinion LEARNS Guide Newsletters Obits Games Archive Notices Core Values

Malpractice bill goes to governor

It allows suing doctors for ‘gender transition’ injuries by Will Langhorne | March 9, 2023 at 5:36 a.m.
Rep. Mary Bentley sits to the side Wednesday as House members debate Senate Bill 199 before approving it 76-17. Bentley, the bill’s sponsor in the House, said the measure is intended to provide children considering transition procedures with extra time to seek psychiatric care. (Arkansas Democrat-Gazette/Stephen Swofford)

A bill that would allow a person injured by a “gender transition procedure” to bring a civil suit against the medical provider who performed the procedure passed the Arkansas House on Wednesday.

The 76-17 vote along party lines advances Senate Bill 199 by Sen. Gary Stubblefield, R-Branch, to the governor’s desk.

Out of 18 Democratic representatives, 16 voted no. Rep. Deborah Ferguson, D-West Memphis, and Rep. Mark Perry, D-Jacksonville, did not cast a vote. Rep. Jeff Wardlaw, R-Hermitage, was the only Republican to oppose the bill.

When asked if Gov. Sarah Huckabee Sanders intends to sign the bill, spokeswoman Alexa Henning said Wednesday in a written statement that Sanders “has said that she supports bills that protect our kids and will support legislation like this that does just that.

“Only in the far-Left’s woke vision of America is it not appropriate to protect children.” The bill’s House sponsor, Rep. Mary Bentley, R-Perryville, said the measure is intended to provide children considering transition procedures with extra time to seek psychiatric care. She pointed to a “safe harbor” section of the bill that she said would provide safeguards that would have to be met before children receive treatment.

Bentley raised concerns about the effect of “gender transition procedures” and claimed the treatments lead to higher suicide rates among minors. She questioned if providers were using the procedures to generate revenue.

Bentley shared the story of Chloe Cole, a teenager who has said she regrets receiving transgender reassignment treatment and surgery. Cole has spoken in favor of bills in other states that aim to limit transgender procedures.

Supporters and opponents of the bill have disagreed over the results of studies regarding the impact of gender transition procedures on minors.

National medical organizations, including the American Medical Association, have objected to legislative restrictions on gender-affirming care, saying a majority of patients report improved mental health and lower suicide rates after receiving care.

Rep. Ashley Hudson, D-Little Rock, spoke against the bill, saying that unlike existing medical malpractice laws it would allow legal action against physicians who don’t violate standards of care.

“This means a doctor could provide treatment to the patient and do everything exactly right in accordance with accepted medical standards and still have exposure,” she said.

Hudson also noted the bill would allow a patient to bring lawsuits against medical providers for up to 15 years after the patient turns 18. Under current medical malpractice statutes, minors with medical negligence claims generally have until they reach 19 to bring an action, Hudson said.

The current statute of limitations for most medical malpractice cases in Arkansas is two years, according to state law.

Since state law only requires medical providers to keep records for minors for six years following the conclusion of treatment, Hudson said doctors could find themselves facing lawsuits without access to records related to the case. Along with limiting care for transgender people, Hudson said the bill would impact the costs of hormone therapy for people who are not transgender.

By effectively banning access to treatment for trans-gender minors, Hudson said the bill contains a “fatal” flaw similar to the one that has left the Save Adolescents From Experimentation Act of 2021 mired in court. The SAFE Act, which outlaws gender-affirming health care for trans-gender children, was blocked by a judge and is awaiting a court ruling.

“I’m still haunted by the idea that last session doctors from Children’s Hospital told us that kids were trying to commit suicide as a direct result of the action we take up here,” she said. “Kids try to kill themselves because of things we said, because of things we filed, and because of votes we made.” Rep. Ryan Rose, R-Van Buren, spoke in favor of the bill, saying gender care surgeries are not the answer for children who may be facing suicidal thoughts. Rose said his wife had to receive a bilateral mastectomy and hormone therapies and “the tragic side effects that come along with that” as part of breast cancer treatment.

“Children should not be confused into deciding to do something of this nature at an age when they can’t fully understand,” he said.

The bill defines a “gender transition procedure” as a medical procedure intended to alter “or remove physical or anatomical characteristics or features that are typical for the individual’s biological sex.” The bill also addresses procedures that seek to instill “or create physiological or anatomical characteristics that resemble a sex different from the individual’s biological sex.” Bentley raised concerns that clinics providing transition procedures were creating a “whole cohort of kids with atypical genitals.” When asked in a committee meeting Tuesday how common “gender transition procedures” are in Arkansas, Bentley said she could not say because of the confidentiality of medical records. Opponents of the bill have said physicians in Arkansas are not offering irreversible gender-affirming surgeries.

House minority leader Tippi McCullough of Little Rock said the bill “tells certain children in Arkansas that we don’t care about them.” As a gay woman, McCullough told lawmakers she understands what it feels like for these children to be shunned.

Rep. Carol Dalby, R-Texarkana, said lawmakers should vote for the bill if they wanted to extend statutes of limitations and impose strict liability on medical providers. Those who oppose these measures should vote against it, she said. Dalby was the only lawmaker to vote present.

The bill includes a “safe harbor” section that would provide health care professionals with a defense against legal action. Among other requirements, health care professionals would have to document a minor’s “perceived gender or perceived sex for two (2) continuous years” and receive the voluntary and informed consent of the minor and their parents before performing a procedure.

For minors who “suffered from a mental health concern,” at least two health care professionals, including at least one mental health professional, would have to certify in writing that “the gender transition procedure was the only way to treat the mental health concern.” In its definition of “gender transition procedures,” the bill excludes several treatments including services to “persons born with a medically verifiable disorder of sex development” and any “procedure undertaken because the individual suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the individual in imminent danger of death or impairment of major bodily function unless surgery is performed.”


Sponsor Content