Unintended Consequences: Getting Burned on Informed Consent Many Years Later

Utah’s new law on informed consent & transgender care for minors may have unintended consequences for surgeons

Buyer’s remorse. We’ve all had it. Who hasn’t wanted a do-over? 

Assorted states acknowledge it. In North Carolina, certain purchases trigger a “right to cancel.” 

As a general rule, a contract is binding as soon as you sign it, and you do not have the right to cancel the contract. However, in some instances, North Carolina law, and sometimes federal law, gives you the right to cancel certain transactions even after you have signed a contract or agreement. In these instances, the seller is usually required to notify you of your right to cancel in the contract. 

Below is a selected list of some transactions in which North Carolina consumers generally have a right to cancel the contract, typically within three days of the transaction. However, there are exceptions and qualifications to the right to cancel, some of which are noted below. 

• Mobile Homes purchased from a dealer. 
• Prepaid Entertainment contracts for dance lessons, dating or social clubs, martial arts,  health or athletic clubs. 
• Discount Buying Clubs. 
• Credit Repair Services. 
• Campground Memberships for more than one year if purchased from a campground operator or salesperson. 
• Certain Food Services, such as contracts to purchase meat in bulk or for home food service plans. 
• Timeshares purchased from a timeshare developer or salesperson. 

There are others.  

These made the list because the Attorney General’s office received so many complaints over the years, that a “cooling off” period was implemented. As a matter of law. To allow the purchaser to put the toothpaste back in the tube. To restore the status quo. 

What does this have to do with informed consent? Read on. 

Utah recently amended its Health Care Malpractice Act, Section 78B-3-427. The title of the amendment seems targeted in limiting the types of transgender treatments that can be performed on a minor. In fact, here is the title, verbatim.  

‘“Transgender procedures upon a minor — Right of action — Informed consent requirements — Statute of limitations.” 

Now the body of the law: 

(3)(a) Notwithstanding any other provision of law, an individual who gave informed consent as a minor or for whom consent was given under Section 78B-3-406, may disaffirm the consent if: 

(i) the treatment at issue began after January 28, 2023; 

(ii) the consent was provided for any of the following: 

(A) a hormonal transgender treatment; 

(B) a primary sex characteristic surgical procedure as defined in Section 58-67-102; or 

(C) a secondary sex characteristic surgical procedure as defined in Section 58-67-102; 

(iii) under the totality of the circumstances, a health care provider would have reason to believe that the minor, or a similarly situated minor, could later regret having given consent; 

(iv) the individual suffered a permanent physical injury; and 

(v) the consent is disaffirmed in writing before the individual reaches the age of 25 years old. 

(b) A disaffirmation of consent under this Subsection (3) relates back to the day the original consent was given. 

(4) Notwithstanding any other provision of law, a malpractice action against a health care provider described in Subsection (2)(a) may be brought before the patient is 25 years old if the treatment at issue in the malpractice action began, occurred, or continued on or after January 28, 2023. 

So, in Utah, a minor who received a procedure associated with transgender surgery, can revoke their consent up to the point they turn 25. Presumably, the minor had their parent or guardian sign off on the procedure.  

Now to parsing what mischief could happen down the road. 

Assume a 17-year-old woman (biologic woman at birth) wants a reduction mammaplasty (breast reduction). Solely because she believes her breasts are too large. Perhaps there’s an accompanying medical reason, such as lower back pain. But ignore that detail. Assume it is merely cosmetic in purpose and the family will be paying an aesthetic surgeon cash, out-of-pocket.  

If this patient is unhappy with her outcome when she turns 24, can she claim “buyer’s remorse?” Can she revoke her consent (or, in this case, her parents’ consent?) 

Line by line. 

(iii) “under the totality of the circumstances, a health care provider would have reason to believe that the minor, or a similarly situated minor, could later regret having given consent.” 

By virtue of experience, any aesthetic surgeon who has EVER taken care of any patient is served notice a patient may later regret they underwent the knife. Spend some time on any review site, and it’s littered with the word “regret.” Most patients are happy. But not all. Some will experience regret. Hitting the threshold of “a health care provider would have reason to believe that the minor, or a similarly situated minor, could later regret having given consent” would pose little challenge. 

Next:  

“(iv) the individual suffered a permanent physical injury”.  

Well, an unsightly scar could be just that injury. Or dimpling. Or asymmetry. I could go on. Hitting this threshold would pose little challenge.  

Next:  

“(v) the consent is disaffirmed in writing before the individual reaches the age of 25 years old.”  

Gotta pen?  

Almost done. 

“(ii) the consent was provided for any of the following: 

(A) a hormonal transgender treatment; 

(B) a primary sex characteristic surgical procedure as defined in Section 58-67-102; or 

(C) a secondary sex characteristic surgical procedure as defined in Section 58-67-102;” 

(ii)(C) might apply. A breast reduction might qualify as a “secondary sex characteristic surgical procedure as defined in Section 58-67-102.”  

But we’ll need to head over to in Section 58-67-102. This Section addresses definitions in the Utah Medical Practice Act. 

What is “a secondary sex characteristic surgical procedure as defined in Section 58-67-102?”

(23) (a) “Secondary sex characteristic surgical procedure” means any of the following if done for the purpose of effectuating or facilitating an individual’s attempted sex change:

(i) for an individual whose biological sex at birth is male, breast augmentation surgery, chest feminization surgery, or facial feminization surgery; or

(ii) for an individual whose biological sex at birth is female, mastectomy, breast reduction surgery, chest masculinization surgery, or facial masculinization surgery.

(b) “Secondary sex characteristic surgical procedure” does not include:

(i) surgery or other procedures or treatments performed on an individual who:

(A) is born with external biological sex characteristics that are irresolvably ambiguous;
(B) is born with 46, XX chromosomes with virilization;
(C) is born with 46, XY chromosomes with undervirilization;
(D) has both ovarian and testicular tissue; or
(E) has been diagnosed by a physician, based on genetic or biochemical testing, with a sex development disorder characterized by abnormal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action for a male or female; or

(ii) removing a body part:

(A) because the body part is cancerous or diseased; or
(B) for a reason that is medically necessary, other than to effectuate or facilitate an individual’s attempted sex change.

In our example, the patient did not come in “for the purpose of effectuating or facilitating an individual’s attempted sex change.”  

Further, there’s an exception for (ii) removing a body part: (B) for a reason that is medically necessary, other than to effectuate or facilitate an individual’s attempted sex change.” 

In our example, we ignored the medical necessity (such as addressing back pain). Here, the reduction mammaplasty was labeled as purely cosmetic. 

If you want to cover all bases, you’d certainly want the patient and the family to affirm, in writing, that the procedure is NOT “for the purpose of effectuating or facilitating an individual’s attempted sex change.” Without such language, your current assumption may be “proven wrong” when the patient revokes their informed consent several years later, as part of a cash grab.  

Willie Sutton was famously asked why he robbed banks. His answer: “Because that’s where the money is.” 

In crafting a belt and suspenders approach to removing incentives, the Utah legislature may have opened the door to later plaintiffs’ mischief. They would merely allege they were in the earliest stages of changing their sex. If the record is silent, their claim might proceed. 

And a claim revoking informed consent can be recharacterized as battery. An intentional tort. Intentional torts are generally not covered by professional liability insurance. 

This amendment may require an amendment. 

What do you think?