Jonathan T. Brollier, Member of the Firm in the Litigation & Business Disputes practice, in the firm’s Columbus office, was quoted in Law360 Healthcare Authority, in “Long Time Limits in Trans Care Laws Expand Doctors' Liability,” by Mark Payne. (Read the full version – subscription required.)
Following is an excerpt:
… Lengthy statutes of limitations have become a common, though not universal, feature of a wave of gender-transition bans and proposals across the nation. Proponents argue they're appropriate for claims involving harm to children, particularly for legal violations with consequences that may take years or even decades to be revealed.
Legal experts say they also open a massive window of potential liability for providers that dwarfs those for medical malpractice claims and many other kinds of legal liability.
"The lengthy proposed statutes of limitations may reflect an attempt to redress potential future harm that only manifests later in life," said Jon Brollier, a member of Epstein Becker Green who represents hospitals in tort disputes. "Or they may reflect political animus against this category of medical treatment." …
The DOJ Bill
The proposal, known as the Victims of Chemical or Surgical Mutilation Act, comes at the request of a January order from the Trump administration that it was against federal policy to fund gender-affirming care through Medicaid, Medicare or military insurance programs.
Trump also directed the DOJ to work with Congress on legislation to create a legal mechanism for parents and children who received gender-affirming care to sue doctors and other providers. …
The proposal raised the possibility that doctors could face claims even if the procedures were done before the law was enacted.
In that scenario, "there is limited deference to prevailing standards of care to the extent they contradict the intent of this act and it is shown that the healthcare professional or physician knew or should have known that such standards of care were in serious, scientific, and medical dispute at the time of the chemical or surgical mutilation," the proposal states.
The bill would also prohibit doctors and patients from agreeing to waive future liability.
"As a practical matter, if the law contains a private cause of action, then it would be reasonable to expect more frequent lawsuits about the prohibited conduct, whereas a law that does not contain a private cause of action would rely on governmental agencies to police the prohibited conduct,” Brollier said.
