EXECUTIVE SUMMARY
Some healthcare facilities are risking litigation by not accommodating the needs of gay and lesbian patients. Visitation is among the issues often handled poorly, some critics say.
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Facilities should consider education programs for staff about lesbian, gay, bisexual, and transgender patient issues.
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Courts have recognized the rights of patients to sue healthcare facilities for discrimination related to sexuality and gender identity.
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Providers risk legal liability for exploiting transgender patients with unnecessary exams.
Healthcare facilities are risking legal liability by not adequately addressing the needs and concerns of lesbian, gay, bisexual, and transgender (LGBT) patients, warns a health professional who has addressed the issue for years.
Refusal of care and postponement of care continue to be concerns for LGBT patients, says Grace Blodgett, PhD, who spent 50 years as a registered nurse and 20 years in the sexology arena. She is the author of Understanding Patients’ Sexual Problems (Bookbaby, 2015). Healthcare institutions might be reluctant to care for a transgender patient, for example, and they might claim to have no understanding of the patient’s needs, she says.
Healthcare facilities also violate the rights of LGBT patients and their family members by failing to recognize their relationships and denying visitation rights, she says. For many facilities, the concerns of LGBT patients are considered a minor issue, Blodgett says.
“People who are LGBT, and especially those who are transgender, are considered unimportant because they are a small, small percentage of the total population,” Blodgett says. “So the physicians and nurses who already have a huge workload can’t and won’t take the time out to deal with their concerns. They also see transgender as being an illness, and they don’t like to spend time on patients they can’t cure.”
The pivotal case for LGBT concerns in healthcare occurred in 2010 when the trauma center at Jackson Memorial Hospital in Miami denied Janice Langbehn access to her dying partner, Lisa Marie Pond. The couple had been together 18 years and had three children. The hospital refused to accept information from Langbehn regarding Pond’s medical history, according to a summary provided by Lamda Legal, the rights organization that supported Langbehn in suing the hospital. Even after a power of attorney was provided, the hospital would not allow Langbehn or the couple’s children to see Pond for eight hours.
Langbehn filed a federal law suit claiming negligence and intentional infliction of emotional distress. A U.S. District Court in Florida couldn’t find any legal basis to support the lawsuit but emphatically condemned the actions of the trauma center. The center “exhibited a lack of compassion and was unbecoming of a renowned trauma center ... Unfortunately, no relief is available for these failures based on the allegations plead in the amended complaint,” the court concluded. The hospital announced it had changed its policies regarding LGBT patients. It added a non-discrimination policy that includes sexual orientation, gender identity, and gender expression; a patient’s bill of rights that states the hospital’s commitment to providing quality care for LGBT patients; and a visitation policy that updates the definition of family to include same-sex partners and other people who might not be legally related to a patient.
More recently, a transgender man sued Fairview Southdale Hospital in Edina, MN, and alleged that he was a victim of discrimination and mistreatment by an emergency department physician on the basis of gender identity. A U.S. District Court judge ruled that Jakob Rumble had a “plausible” case and denied a motion by the doctor’s employer and Fairview to dismiss the case. (The judge’s ruling is available online at http://tinyurl.com/jmympok.)
The ruling is believed to be the first extensive federal court analysis of Section 1557 of the Affordable Care Act, which prohibits discrimination by healthcare providers and is the first federal civil rights law barring sex discrimination in healthcare.
In addition to training clinicians and administrators on the legal rights of LGBT patients and families, Blodgett urges healthcare facilities to implement training programs that will help physicians and staff address their perceptions and possible prejudices toward LGBT patients. “The goal is to help them develop empathy for LGBT patients, to recognize that the stigma attached to being an LBGT person is pretty huge,” Blodgett says. “The other primary concern is the development of language: the use of pronouns other than ‘it,’ and addressing people properly, with respect.”
Healthcare professionals can become frustrated when an LGBT patient is offended by a seemingly innocuous reference, such as calling a transgender person by the wrong pronoun, Blodgett notes. Some of the interactions that are hurtful to the LGBT patient are not intentional, but they could be avoided by a greater understanding of this patient community, Blodgett says.
“When you do make a mistake, the best remedy is to apologize the patient and ask for help in understanding how to better relate to this person,” Blodgett says. “The simple act of looking the patient in the eye and apologizing can have a tremendous impact on someone who is used to being held in disdain by others.”
Forms and electronic documentation also should accommodate the sexual identities of patients by including more options than male and female, she says. Unisex bathrooms with one toilet are the best way to avoid many issues with transgender patients, she says.
LGBT patients, and particularly transgender patients, also are at risk of exploitation and voyeurism under the guise of medical education, Blodgett says. This issue is still common, she says, and it easily could be the foundation of a lawsuit alleging assault and sexual misconduct.
“The attending physician will bring in 10 or 20 students around, especially with someone who is transgender or who has ambiguous genitalia, and they will pull those bed covers back, exposing the genitalia. There will be snickering, laughing, and rolling their eyes,” Blodgett says. “Or there will be repeated examinations of these patients that is utterly unnecessary. The patient is in a vulnerable position and feels unable to protect himself or herself.”
