Gender-Affirming Care

Litigation and legislation concerning gender-affirming care have both exploded over the past few years. In particular, many states have enacted laws that prohibit gender-affirming care for minors. Ohio is no different. In 2024, Ohio enacted such a law prohibiting gender-affirming surgeries, puberty blockers and hormone therapy for minors. Ohio passed a ban in the form of House Bill 68. Although HB 68 was initially blocked from going into effect by an Ohio trial court, the injunction has now expired and such gender affirming care for minors in Ohio is currently prohibited. An appeal is pending.

As a reminder, HB 68 originally passed in the Ohio Legislature in mid-December 2023, and Governor DeWine vetoed the bill on December 29, citing conversations he had with families of transgender youth, along with serious concerns and requests to veto expressed by the medical community. OSMA and a large coalition of several dozen medical organizations and hospitals were among those asking the governor to veto the bill, and had also testified and advocated in opposition to the bill during its journey in the legislature. On January 24 of this year, the Ohio Legislature overrode the Governor’s veto, making it law in Ohio.

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Two current cases are pertinent for Ohio physicians and patients. One is a state case described above concerning Ohio’s law, and the other a recent federal case accepted by the United States Supreme Court.

Moe v. Yost, Franklin County CP No. 24CV2481.

In April 2024, a Franklin County judge issued a temporarily injunction for the enforcement of House Bill 68, legislation which would prevent transgender youth from receiving gender-affirming care. (Moe v. Yost, Franklin County CP No. 24CV2481). This case, filed by the ACLU of Ohio on behalf of a two Ohio transgender children and families asked the court to declare the measure unconstitutional.

A decision in the case was issued on August 6, 2024, following a weeklong trial held in July. The court held that HB 68 did not violate any of the state or federal constitutional provisions alleged by the ACLU, such as the Single Subject Rule, Health Care Freedom Amendment, or the Equal protection Due Process Clauses. The injunction was vacated and the law is, as of this writing, in effect in Ohio—prohibiting health care providers from administering gender affirming surgeries, puberty blockers, or hormone therapies to minors.

ACLU has appealed this matter to the Ohio 10^th District Court of Appeals, and has asked for an expedited schedule for a decision based on the subject matter at issue.

The Supreme Court of the United States (SCOTUS) has also taken up review of a similar law from another state.

 

United States v. Skrmetti, SCOTUS Docket No. 23-477

On June 24, 2024, SCOTUS accepted review of a case challenging a Tennessee law which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” This bill, like Ohio’s HB 68, prohibits the provision of puberty blockers, gender affirming surgery and hormone therapies.

The Justice Department has argued that the bill’s provisions violate the Equal Protection Clause by discriminating based on sex and should be struck down. A decision that the law does violate the U.S. Constitution would effectively render all similar laws in any state unconstitutional (including Ohio).

Briefings and hearings will not be held until next session which begins in October 2024.

Depending on the outcome of Ohio’s case (which will likely be decided earlier) it is yet to be determined what any decision from SCOTUS may have on Ohio law.

 

Lewis v. MedCentral Health System, SCO No. 2024-0451

The Plaintiff in this case sued Ohio Health and Mansfield Hospital, along with other John Doe Defendants. Plaintiff was being treated in Mansfield Hospital in 2022 when she alleges that she was left alone after being medicated, and subsequently fell out of her bed and sustained injuries including a fractured neck. At the time of filing of this action, Plaintiff expressly described the incident in the hospital along with physicians involved in the incident, whose names she did not know, as John Does defendants. John Doe titles are used in civil litigation refer to defendants against whom the Plaintiff has identified claims, but has yet to identify by name. Plaintiff in this case, and after the expiration of the one (1) year statute of limitations for medical claims, named an employed physician of that hospital claiming an exception in Ohio Revised Code.

The law that the Plaintiff relies upon to have named this physician outside the statute of limitations was created in 2019 by the Ohio Legislature. R.C. 2323.451(C) allows for an extension of an additional 180 days to name defendants in a medical claim IF those defendants were discovered during the discovery process of the litigation, and the plaintiff properly follows various notice provisions. Discovery is a period in civil lawsuits where parties are required to share relevant documents and information with each other prior to trial.

To be clear, the Plaintiff named this physician in the amended complaint two (2) months following the expiration of the medical claims statute of limitations. Plaintiff also did not attempt any required notice provisions prior to amending her complaint, as required by the law as a condition of the 180 day extension.

The defendant physician (formerly John Doe) argued, and the trial court agreed, that this extension of the statute of limitations applies to additional defendants discovered during the discovery process (not defendants already identified even as John Does when the suit was filed).  The plaintiff argued that any additional defendants can be added up to 180 days after the expiration of the statute of limitations, even if the plaintiff was aware of claims against those defendants at the time suit was filed. We disagree—the plain language allowing the 180 day extension requires that there must be a discovery of additional defendants or claims, not the uncovering of a name belong to an already identified defendant or claim. Plaintiff appealed after the trial court decision and the Fifth District Court of Appeals agreed with the plaintiff. The defendants appealed to the Supreme Court of Ohio.

OSMA is joined by the American Medical Association, the Ohio Hospital Association, and the Ohio Osteopathic Association in filing our amicus in this case. We argue that the Court uphold the decision of the trial court. The physician defendants in this case were known in this case to defendants during the statute of limitations. The plaintiff provided explicit description of the John Doe Defendants, but failed to properly and timely name those defendants are required by law. Plaintiff’s argument is merely another hopeful tool for medical claim plaintiffs to use and extend their time to name providers in lawsuits.

If plaintiff succeeds in this case, it will extend and broaden the scope of liability exposure for Ohio physicians, which was expressly limited by the Ohio legislature. Trial lawyers will only be emboldened to prolong litigation to name as many providers as possible for every claim they bring. It is essential that OSMA continue to advocate and push back on attempts to break down established law and rules protecting Ohio’s health care professionals.

OSMA will continue to monitor this case and provide updates accordingly.