Legal experts are predicting an increase in lawsuits after a jury found a psychologist and surgeon liable for malpractice related to a double-mastectomy performed on a formerly transgender-identifying 16 year old.
The decision was the first of its kind: other cases have been settled or dismissed due to the statute of limitations.
Tech mogul Elon Musk, reacting to The Epoch Times’ report on the case, said the verdict will result in thousands of suits brought by “children who were mutilated by evil doctors, modern day Mengeles,” referring to the Nazi doctor who performed barbaric experiments on Auschwitz prisoners. Florida Attorney General James Uthmeier predicted that other attorneys general might bring cases too.
Though the legal implications of Varian’s case are limited, experts told The Epoch Times that future cases may follow a similar pattern, with juries finding that healthcare professionals rushed clients into these procedures without due consideration.
The Varian Case
Fox Varian’s case goes back to September 2018, when she was suffering from psychological issues like depression and eating disorders. She had been questioning her gender for years and informed her psychologist, Kenneth Einhorn, that she wanted to change her name from Isabelle to Gabriel or Gabe. She later switched to Rowan, then Fox.
Other gender-related changes followed rapidly, including the use of he/him or they/them pronouns, and the decision to wear a chest binder to conceal her breasts.
In March 2019, she brought up the topic of breast removal, also known as “top surgery.”
Varian’s mother, Claire Deacon, testified that she staunchly opposed the surgery but said that Einhorn pressured her by warning that her daughter was at risk of suicide without it.
The jury found Einhorn and surgeon Dr. Simon Chin liable for malpractice in multiple ways, including failing to communicate about Varian’s condition. For example, an October 2019 letter he wrote to Chin in support of Varian’s surgery contained errors and omitted certain co-existing mental issues like anxiety and depression.
They also faulted Chin for not consulting further with Einhorn, since the letter did not contain an explicit diagnosis of gender dysphoria. Chin testified that the letter spelled out the diagnosis, and that—along with his consultations with Varian—was enough to proceed with the surgery.
The jury disagreed and awarded Varian $1.6 million for pain and suffering, as well as $400,000 for future medical expenses.
The Epoch Times reached out to Einhorn’s attorney, Neil Kornfeld, to find out if he would appeal, but he was not ready to discuss the matter. Chin’s attorney, John Bugliosi, has not returned a request for comment.
Varian Verdict Offers Hope to Plaintiffs, Attorneys
Attorneys and others like Varian responded to the verdict with hope that it would bring similar outcomes in future legal disputes.
One of those was Chloe Cole, a high-profile California “detransitioner,” who sued Kaiser Foundation Hospitals, doctors, and therapists after surgeons removed both her breasts when she was 15.
She viewed the $2 million verdict as low for what detransitioners endure, but called it a breakthrough moment.
“The success of this case is a huge leap for the detransitioner movement, and every doctor and clinic involved in this fad should be very afraid for what comes next,” she told The Epoch Times in a text.
Josh Payne, co-founder of Campbell Miller Payne law firm, has secured millions of dollars in settlements for clients in suits that resembled Varian’s. His firm has 12 cases pending.
“These facts—and facts like them—are in case after case after case after case, where the client has multiple coexisting mental health issues,” he told The Epoch Times.”
Roger Severino, a former federal prosecutor, told The Epoch Times that obtaining such a verdict in New York may be indicative of how juries elsewhere will find.
Members of the jury declined to speak with the media immediately following the verdict, but Severino noted that 2024 numbers for Westchester County put the demographics for the area at nearly 63 percent Democrat.
“If a 63 percent liberal jurisdiction gives this family $2 million, that’s a strong rebuke of gender ideology,” Severino, who serves as Vice President of Economic and Domestic Policy, said.
Legal Ramifications
Although many who oppose such procedures are speculating that the verdict will lead to many new cases, it’s not clear how those cases will play out. Attorneys told The Epoch Times that Varian’s verdict was specific to the circumstances of her case and did not create a legal precedent that was binding on other cases.
Varian’s attorney, Adam Deutsch, noted that his client’s case did not oppose “gender-affirming care” on principle but rather the way Varian was treated in particular.
“This case was not a statement or referendum on the appropriateness of gender-affirming care for adults or minors. Instead, it was about whether physicians adhered to their professional and ethical obligations when providing that care to Fox,” he said in a statement emailed to The Epoch Times.
Andrea Picciotti Bayer, an attorney and director of the socially conservative Conscience Project, said that might be true, but with a caveat.
“The binding nature of this kind of case is very limited,” Bayer said, since the verdict was based on Varian and her family’s specific interactions with her healthcare providers.
“Having said that, the fact that it’s public is significant in that it’s going to encourage other people that were subjected to this kind of hasty medical intervention to file claims,” she said.
—Stacy Robinson; Darlene McCormick Sanchez
