Procedural Posture

The plaintiff, an intersex individual, claimed that the defendant, a surgeon, had failed to provide him with adequate information as to the nature and extent of a surgical procedure. The procedure, which was performed by the defendant on 12 August 1977, resulted in the removal of female sexual organs including the plaintiff’s ovaries, uterus and fallopian tubes. The plaintiff sought compensation for the pain and suffering that had resulted from the operation.

Facts

The plaintiff was born with ambiguous genitalia and the plaintiff’s urethra had formed abnormally. However, he was assigned a male gender at birth and was raised as male. During puberty the plaintiff exhibited masculine hair growth including a beard.

In February 1976 at the age of 14, the plaintiff’s appendix was removed. During the surgery internal abnormalities were detected. Upon further medical examination the existence of female reproductive organs, including ovaries and fallopian tubes, was diagnosed. In addition, ostensible medical evidence suggested the presence of male reproductive characteristics; however, no testicular tissue was detected. The medical conclusion was that the plaintiff possessed both male and female organs.

The plaintiff was informed of the existence of the female reproductive organs and, although still identified as male, was informed that he was 60% female. In correspondence with medical practitioners, the plaintiff’s sister reported that the plaintiff was unstable and seriously considering suicide as a result of the diagnosis.

An analysis of the plaintiff’s chromosomes, conducted in December 1976, led to the discovery of a normal female chromosomal pattern. This discovery was not shared with the plaintiff. Further examinations, including some psychological analysis of the plaintiff’s sexual awareness and orientation, were conducted by medical professionals, culminating in the disputed operation on 12 August 1977.

The operation proceeded on the understanding that the plaintiff possessed both male and female sexual organs. It was recorded in a medical report as a “testovarectomy”, which the Court described as the removal of a hermaphroditic gonad comprising both male and female tissue. However, during the operation no male anatomy was detected, repudiating the pre-treatment diagnosis. Instead, the surgeon discovered and removed “a normal female anatomy with pre-pubertal uterus, normal sized ovaries, blindly ending vagina”. A post-operative medical report suggested that the plaintiff might have had a medical condition called Androgenital Syndrome, which would have explained the “virilisation” (masculinisation) of his otherwise female body. Following the surgery, the plaintiff continued to live as a male but later came to identify as female.

In 2006, the plaintiff investigated his medical records, and discovered the true nature and extent of the surgery that took place on 12 August 1977, as well as the concealment of his chromosome pattern.

Issue

Whether the defendant failed to properly inform the plaintiff of the true nature and extent of the surgical procedure in which his female sexual organs were removed and, if so, whether the procedure was performed without the plaintiff’s informed consent.

Reasoning of the Court

The plaintiff argued that he had never consented to, and had not fully understood, the procedure that took place. In particular, he argued that he was not informed that it could result in the removal of fully formed and exclusively female intra-abdominal anatomy. The plaintiff claimed that removal of his female anatomy had obliged him to live his life with the “wrong gender”. He argued that the surgery had deprived him of the opportunity to obtain alternative treatment and explore a life with his true gender identity.

The plaintiff argued that he had been led to believe that a tumour or degenerative tissue had been removed. In addition, the treatment he received had led to medical problems and chronic urinary tract infection.

The defendant repudiated the charges. He argued that he believed the plaintiff had been adequately informed about the procedure and had consented to it. He also argued that, as a surgeon, he had operated on the basis of the pre-surgery medical diagnosis of other medical practitioners and that the operation itself was performed in the presence of a senior physician who had instructed the defendant to remove the organs.

Further, the defendant argued that the plaintiff had presented as and identified as male and that it was not evident that he possessed a “naturally female body”. The defendant argued that the removed organs were “profoundly atrophied” and that there were therapeutic reasons, such as the plaintiff’s mental instability, which justified the failure to fully inform the plaintiff of his condition.

The Court held that the plaintiff had not been appropriately informed about the “nature, content and extent” of the operation carried out on 12 August 1977. In the Court’s opinion, the defendant had failed to demonstrate that he had a sound reason for not fully disclosing to the plaintiff the details of his condition and the defendant’s assertion that information was withheld in order not to “confuse” the plaintiff was unsustainable. This was held to be true both with regard to the failure to ensure that the plaintiff was informed about his chromosomal pattern prior to surgery, and the failure to abstain from surgical intervention until the plaintiff had been properly informed of his situation.

The Court also found that, prior to surgery, the plaintiff was not informed about his 46,XX chromosomal constitution. In addition, the character of the operation had been transformed by the intra-surgery discovery that the plaintiff was wholly female, both chromosomally and organically. Instead of being an operation to address the existence of both male and female reproductive organs, the surgery was transformed into the removal of the organs of the only sex present in his body.

At this point the defendant had an obligation to inform the plaintiff that his medical diagnosis had fundamentally changed. The Court held that the plaintiff was entitled to have the significance of the discovery fully explained to him. The defendant should have obtained his fully informed consent before carrying out an operation that would remove his exclusively female organs.

As to the defendant’s argument that he was merely acting under instruction and on the basis of the original medical reports, the Court held that the defendant would have understood, and should have assessed, the ramifications of the intra-operative findings. The Court concluded that the defendant could not have “guiltlessly” assumed that the surgical procedure that he then carried out could have been governed by any preoperative agreement.

The Court did note that, although the defendant was not directly responsible for the general medical treatment plan or the initial failure to inform the plaintiff of his chromosomal constitution, as a surgeon he ought to have understood and fundamentally reviewed the information available to him and his responsibility to disclose it. In light of his expertise and his role in the operation, the defendant could not absolve himself of responsibility.

The Court held that the plaintiff’s lawsuit was well founded. The decision regarding costs and compensation was reserved for final judgment until further evidence on the consequences of the surgery had been gathered.

In re Volling, Regional Court Cologne, Germany – German (full text of judgment in German, PDF)

In re Volling, Regional Court Cologne, Germany – English (full text of judgment in English, PDF)