1100 words Lesbian, gay, bisexual, and transgender

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“I f I can establish a rapport and earn a patient’s trust it makes my job easier and their care

safer. That is more than enough to justify the effort required, but beyond that I recognize that patients bring their world experiences into the ED with them. If they have been abused,

discriminated against, disrespected, or even assaulted because of their beliefs or who they are, simply treat- ing them courteously can sometimes be more important and lasting in its impact than, say, a cast for a fracture or a course of antibiotics.” (Ovens, 2017)

INTRODUCTION

The Lesbian, Gay, Bisexual, Transgender (LGBT) community experiences singular challenges in accessing health care, as well as in utilizing health care services. This also applies in Emergency Department (ED) settings. Nursing and medical education inadequately prepare providers to work with this population. An ED that does not provide culturally competent care to LGBT patients further exacerbates existing health care disparities and compromises the safety and well-being of this community. ED staff must be aware of these disparities and address implicit bias in their practice.

Keywords: Lesbian, Gay, Bisexual, Transgender, sexual minority, gender minority, bias, liability, cultural competence, disparities, discrimination

Legal Issues with Sexual and Gender Minority Patients in the Emergency Department Edie Brous RN, BSN, MS, MPH, JD

FEATURE

cation inadequately prepare providers to work with this population. An ED that does not provide culturally competent care to LGBT patients further exacer- bates existing health care disparities and compromises the safety and well-being of this community. ED staff must be aware of these disparities and address implicit bias in their practice.

Failure to meet the unique needs of this community can expose the ED to liability. Civil litigation, loss of feder- al funding, citations from regulatory authorities, and adverse publicity are potential consequences for failing to provide adequate care to LGBT patients (Comerford, 2016). Cynthia Wallace notes, “[D]on’t wait for a lawsuit to gain the organization’s attention regarding what the Joint Commission calls an “overlooked community” of healthcare consumers (Wallace, 2016).

BACKGROUND A recent Gallup poll indicated that the percentage of Americans who identify as LGBT continues to increase with each survey. Gallup first polled this measure in 2012. The percentage that year was 3.5%. In 2016 it was 4.1%, and in 2018 it was 4.5%. The increase is driven in large part by millennials (persons born between 1980 and 1999). In the latest poll, 8.1% of millennials identify as LGBT. Gallup estimates that the number of adults in the United States who identify as LGBT exceeds 11 million (Newport, 2018). Approxi- mately 0.58 percent of American adults constituting 1,397,150 people aged 18 and older, identify as transgender (Flores, 2016). The percentage is higher for younger Americans – 0.73 per- cent or 149,750 people aged 13 to 17 identify as transgender (Herman, 2017) (Williams Institute, 2017). Estimates of these communities is made difficult by underreporting in polls.

LGBT individuals experience rates of illness and death that are dispropor-

tionate to the general population (Baral, 2018) (Moreau, 2018). Sexual minori- ties suffer health care disparities such as higher smoking rates, higher use of alcohol and drugs, higher HIV infection rates, higher rates of depression, sui- cide, and social isolation, higher rates of certain cancers, exposure to hate crimes and violence, and more barriers to competent care ( Jalali, 2015) (ODPHP, 2019). These disparities are caused, in part, by marginalization. People who feel discriminated against are less likely to seek emergency services, or to feel safe when doing so. Fear of being mistreated, harassed, or discriminated against leads people to avoid seeking emergency care. (Samuels, 2018) (Baral, 2018). Delays in seeking care create health risks, increase morbidity and mortality, and increase cost (Willging, 2019). A recent study indicated that approximately 18 per- cent of LGBT people and 22 percent of transgender people have avoided medical care out of fear that they would be discriminated against (NPR and RWJF, 2018). Additional dangers are created when emergency providers are inade- quately educated to care for sexual or gender minority patients who do present seeking treatment. Studies also reveal that transgender patients delay care out of fear that they will need to educate their providers about their health issues (Willging, 2019).

DISCRIMINATION Discrimination against LGBT patients, particularly transgender patients, takes many forms, but most commonly involve denial of gender identity, disclos- ing transgender status to non- necessary parties, and delays in provision of care (TLDEF, 2016). A Minnesota lawsuit illustrates these forms of discrimination.

In June 2013, Jakob Rumble sought treatment at Fairview Southdale Hospi- tal. Although he identified as male, the ED clerk gave him a wristband labeled “F” for female. Despite being febrile and in pain, he waited almost five hours to

be seen by a physician. Patients with lower acuity levels were seen while Mr. Rumble waited in pain for a physician. When Dr. Steinman finally came to see him, he was accompanied by a female assistant and an OB-GYN. Dr. Stein- man was hostile and aggressive, and conducted a rough physical examina- tion, intensifying Mr. Rumble’s pain. Mr. Rumble had to ask twice for him to stop the examination. Neither the assistant, nor the OB-GYN intervened. Dr. Steinman left the room and Rumble waited an additional two hours. The staff identified that other patients did not wait as long as he had.

Mr. Rumble was eventually admitted to the hospital. His mother was informed by another physician that he would have been septic within 12 to 24 hours from when she brought him to the ED and that he could have died. To his embar- rassment, a dry erase board on the wall in his room identified one of his treating physicians as OB-GYN. An infectious disease physician examined his genitals, wiped his gloves on the blanket, then examined Rumble’s eyes and mouth with those same gloves. Rumble also experienced hostility from the nursing staff. He remained in the hospital for six days and after discharge received a bill stating that “[T]he diagnosis is incon- sistent with the patient’s gender.” As a result of this experience, Mr. Rumble developed of fear of doctors and would not return to Fairview, although it was the closest ED to his home.

Rumble filed a discrimination complaint with the Office for Civil Rights, alleging that his rights under the Affordable Care Act had been violated. He alleged that Fairview had discriminated against him on the basis of gender identity. He also filed a complaint under state law, alleging that the defendants had violated the Minnesota statute prohib- iting unfair discriminatory practice. The defendants moved to have the case dismissed, but the court ruled

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FEATURE

Tyra’s mother, Margie Hunter, filed a $10 million-dollar wrongful death law- suit against the District of Columbia, the fire department EMT, DC General Hospital, and the ED physician, alleg- ing delayed and inadequate care. Upon hearing an expert testify that Ms. Hunt- er had an 86 percent chance of survival had she received proper medical care, a jury awarded Tyra’s mother $2.9 million dollars (Roberts, 2007). Washington D.C. appealed the decision but settled the case with Tyra’s mother for $1.75 million dollars (Rosendall, 2000).

An attorney attending the trial noted that evidence was presented that the ED administered Narcan rather than treating her for hypovolemic shock. The attorney noted:

The administration of the Nar- can supports the inference that a stereotype (namely that Tyra was an anonymous, drug using, TG street person) affected the treat- ment she received. The ER staff, as evidenced by their actions, did not consider her life worth saving; the post-death CPR and heart

in Mr. Rumble’s favor, finding that discrimination against transgender indi- viduals is a form of sex discrimination (Rumble, 2015). In reviewing the Rum- ble case, Leah Tabbert noted, “[B]road legal protection from discrimination in health care would be a particularly important development for the trans- gender community, which has faced disproportionate barriers to health care” (Tabbert, 2015).

EDs and pre-hospital personnel can be exposed to liability when indulging in prejudices against LGBT patients. A startling example is provided by the Tyra Hunter case. In August 1995, 24-year-old Tyra Hunter, an Afri- can-American transgender woman, was involved a motor vehicle acci- dent in Washington D.C. She was semi-consciousness and bleeding profusely when she was pulled from the car by onlookers (Bowles, 1995). Fire Department Emergency Medical Technicians (EMTs) arrived at the scene and began treating her injuries.

Ms. Hunter had participated in hor- mone therapy but had not undergone sexual reassignment surgery. When the EMT cut her pants leg open, he noted male genitalia. Despite Tyra’s bleeding and respiratory distress, the EMT stood up, backed away from her, and made disparaging comments about her race and gender. Rather than rendering assistance to the injured woman, the other EMTs at the scene engaged in joking. For several minutes bystanders begged the laughing EMTs to resume treatment. The EMS supervisor arrived and Tyra was rushed to DC General Hospital. At the hospi- tal, an ED physician refused to treat her. After not being diagnosed, transfused, or referred to surgery, Ms. Hunter died of internal bleeding from blunt force trauma a little over an hour after arrival. Evidence was presented that a chest tube inserted after her death produced 1,500 cubic centimeters (ccs) of blood (Howell 1998).

massage were merely perfuncto- ry, CYA measures, or a practice opportunity. To the jury’s credit, they looked beyond the stereo- type, discovered the human being, and recognized the injustice done to her (Howell 1998).

Explicit legal protections against dis- crimination are lacking at the federal level and in most states, further jeop- ardizing the health and well-being of the LGBT community (MAP/NCTE 2018) (Thoreson, 2018).

DOMESTIC VIOLENCE OR INTIMATE PARTNER VIOLENCE Most ED providers have been educated to recognize and respond to domestic violence in

the heterosexual population, but are poorly-equipped to do so with LGBT patients. This form of marginalization further endangers sexual minorities and creates additional vulnerabilities. Intimate partner violence (IPV) in the LGBT community is comparable to that of the heterosexual community, but structural barriers uniquely compro-

mise safety and fail to protect LGBT persons from their perpetrators

(Brown & Herman, 2017).

Shelters might not be available, may refuse to provide services to LGBT people, or they might fail to protect

same-sex partners from their perpetra- tors Dudley, 2017) (Brown & Herman, 2017). Transgender people can be excluded by others staying at shelters (Tesch, 2019).

ED providers might mistakenly believe that IPV is less severe or dangerous in the LGBT community, characterizing events as “sissy fights” or “cat fights” and not recognizing the potential for serious harm or death (HRC, 2017). Laws and processes that protect heterosexuals might not be in place or available to LGBT patients. Legal definitions of

Hate crimes against the LGBT com- munity are vastly underreported for a number of reasons. This population is overrepresented as victims, yet under- reported to police for some of the same reasons as with IPV. This includes fears that the police will not take the complaint seriously or that they will be further harassed (Keith, 2018). And, like IPV, victims of LGBT hate crimes also fear discrimination from health care providers, illustrating the need for cultural competency training in ED staff (Coston, 2018). As with IPV, structural resources are inadequate to meet the needs of LGBT people experiencing hate crimes, including the education of providers to care for this population.

CLINICAL CONCERNS A recent study polling 399 emergency physicians found that 88 percent of the respondents had cared for transgender and gender nonconforming patients. Most of them lacked the basic clinical knowledge to care for this population, however, as 82.5 percent of these physi- cians had never received formal training about transgender patients (Chi- solm-Straker, 2018). Failure to perform medically-appropriate screening can expose an ED to liability and allegations that the Emergency Medical Transfer and Active Labor Act (EMTALA) has been violated.

As with all patients, ED staff need to be aware of any medications patients are taking and the potential interaction of those medications with drugs that are administered in the ED. It is important with transgender patients to know if and what hormone therapy the patient is undergoing and exercise caution in administering certain medications. ACE inhibitors, Digoxin, Angiotensin II receptor blockers, steroids, Lithium, Cholestyramine, skeletal muscle relax- ants, norepinephrine, Heparin, Lovenox, NSAIDs and others can interact with Spironolactone (Pfizer, 2018).

domestic violence might exclude same- sex couples (Brown & Herman, 2017). Before same sex marriage was available, for example, many jurisdictions would not allow LGBT members access to the family courts for obtaining protection orders. Because LGBT persons did not meet the legal definition of family, these survivors needed to obtain protection orders through the criminal justice system. This required making police reports and pressing criminal charges. Police reports can be difficult to obtain when the officers do not take the threat seriously. Indeed, 45 percent of LGBT victims do not report IPV to the police because they do not believe it will help them (NCADV, 2018).

Health care professionals might not be able to provide the assistance same-sex couples need. This intensifies the per- ception that providers will be insensitive to their specific needs and further deter victims of IPV from seeking services (Barrett, 2015). LGBT patients have little confidence that providers have the necessary skills to assist them. This is particularly true for transgender issues (Brown & Herman, 2017).

HATE CRIMES The epidemic of violent crimes com- mitted against LGBT or perceived LGBT persons is increasing, rather than decreasing in the United States. LGBT persons are more likely to be the target of these hate crimes than Jews, Muslims, African-Americans, Asians, Hispanics, or Caucasians, making them more likely than any other minority to be targets of bias violence (Park & Mykhalyshyn, 2016). The Federal Bureau of Investiga- tion released 2017 statistics indicating that hate crimes based on sexual ori- entation had increased five percent from 2016. In 2017, twenty-nine of the transgender individuals targeted by hate crimes were killed. Transgender women of color are at particular risk, facing the intersection of biases against race, sex, and gender identity (Dashow, 2018).

Transgender women on hormone therapy might be at higher risk for cardiovascular problems which present in an ED such as myocardial infarction, cerebral vascular accident, thrombosis or embolism (Getahun, 2018). Because the prostate is not removed in gender affirmation surgery, transgender wom- en must still be screened for prostate cancer. In fact, prostate cancer in

• The Emergency Nurses Association is the authoritative body for emergency nurses accessed at www.ena.org

• The American College of Emergency Physicians is the authoritative body for emergency physicians and can be located at www.acep.org

• The Society of Trauma Nurses offers education and information on the care of trauma patients at https:// www.traumanurses.org

• The Emergency Nurses Association Emergency Nursing Scope and Standard of Practice includes the framework for emergency nurses and advanced practice nurses functioning in the emergency setting.

• A few primary resources published by the Emergency Nurses Association (ENA) for standards of emergency care include Emergency Nurses Core Curriculum (7th Edition) and Sheehy’s Manual of Emergency Care (7th Edition). Both books can be purchased in the ENA store at www.ena.org

Another JLNC

SideNOTE

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FEATURE

transgender women might be of a more aggressive form. Transgender men must be screened for breast, cervical, ovarian and endometrial cancer (Braun, 2017). ED staff must be educated in the clinical management of transgender patients to ensure that the standards of practice are adhered to. Clinical referrals that would be made for cisgender patients should also be made for transgender patients.

HUMAN TRAFFICKING LGBT youth are at risk of homelessness from parental rejection and constitute about 40 percent of the runaway and homeless youth population (U.S. Dept. of HHS, n.d.). Homelessness is a risk factor for trafficking and forced pros- titution (U.S. Dept. of State, 2017). LGBT youth are disproportionately trafficked and ED providers must know how to recognize potential trafficking victims. When suspecting that an LGBT youth has been trafficked, ED personnel should use a trauma-informed approach in their care and provide a social service consultation. Polaris identifies the top five risk factors for human trafficking as:

1. Recent migration/relocation; 2. Substance use; 3. Runaway/homeless youth; 4. Mental health concern; and 5. Involvement in the child welfare

system (Polaris, 2019).

Because victims of trafficking are likely to have limited access to health care, the

care they do receive is often provided in EDs (Mumma, 2017). ED providers, therefore, are in a unique position to rescue trafficked persons from their captors. The Office on Trafficking in Persons offers training to educate first responders on recognizing and assist- ing trafficking victims. The program is referred to as SOAR training and involves the elements of:

• Stop – Become aware of the scope of human trafficking;

• Observe – Recognize verbal and non-verbal indicators of human trafficking;

• Ask – Identify and interact with a potential human trafficking victim using a victim-centered approach; and

• Respond – Act effectively to a poten- tial human trafficking victim (U.S. Dept. of HHS, 2019).

CONCLUSION ED staff must be educated in the care of LGBT patients so as to not further marginalize them. The standard of care that would be provided to other patients must be provided to sexual minorities with the same vigilance. Additionally, because LGBT patients are more likely to present to the ED for domestic violence, hate crimes, depression, suicidality, or human traf- ficking, staff must know to screen this population for these particular risks (Sutter, 2018).

As the Emergency Nurses Associa- tion states, “When emergency nurses and other healthcare staff embrace an inclusive, affirmative environment within the emergency care setting and act as advocates for change, they can significantly promote equal treatment and access to healthcare for all patients” (ENA, 2016).

NURSING IMPLICATIONS • Recognize and address implicit bias

in one’s own practice. Unchecked anti-transgender implicit bias results in knowledge gaps and poor treat- ment (TLDEF, 2016)

• Distinguish between gender identity and sexual orientation.

• Distinguish between transgender and cross-dressing.

• Recognize that LGBT patients might not feel safe in the ED and create a safe environment for them by making them feel welcome.

• Recognize IPV with the LGBT population.

• Maintain education regarding the clinical implications of medical transitions.

• Recognize hate crimes with the LGBT population.

• Recognize human trafficking with the LGBT population, particularly with LGBT youth.

• Know what community resources are available for this population.

Transgender women on hormone therapy might be at higher risk for cardiovascular problems. The prostate is not removed in gender affirmation surgery, so transgender women must be screened for prostate cancer.

• Distinguish when a presenting complaint is and is not related to a patient’s transgender status. Ques- tions about gender identity are inappropriate and offensive if they are not medically relevant. Transgen- der patients experience ED providers as being unable to know when and how their transgender medical history is relevant to their presenting complaint (Straker, 2017). Over-cu- riosity is a form of transphobia that makes patients feel unsafe and fur- ther marginalized. (Willging, 2019).

• Use appropriate pronouns. Misgen- dering a patient is abusive.

• Include sexual and gender minorities in cultural competency education.

• Include the care of LGBT patients in educational curriculum and orientation materials. The American Academy of Family Physicians pro- vides a curriculum guideline (AAFP, 2016) and the Joint Commission offers a “field guide” for care of the LGBT community (TJC, 2014).

• Include pre-hospital providers in antidiscrimination training. LGBT patients need to feel safe in the ambu- lance as well as the ED (Kruse, 2018).

• Provide gender-neutral bathrooms.

• Use an identity-based model rather than a disease-based model in caring for transgender patients to avoid pathologizing gender dysphoria or further stigmatizing (Braun, 2017) (MacCarthy, 2015).

• Institute policies and procedures to document gender identity. The Centers for Medicare and Medicaid Services specifically address the need to have policies of non-discrimina- tion which includes sex and gender identity as a condition of participa- tion (Federal Register, 2016.)

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• Early identification of sepsis leads to lower patient mortality and better outcomes. Guidelines for early Recognition of Sepsis in the Pediatric Patient can be found at https://www.ena.org/docs/ default-source/resource-library/practice-resources/topic-briefs/early-recognition-of-sepsis-in-the- pediatric-patient.pdf?sfvrsn=bf003c0b_10

• A patient with an infection or suspicion of infection will likely need blood cultures. Guidelines to help the emergency nurse prevent blood culture contamination can be found at https://www.ena.org/docs/default-source/resource-library/practice-resources/cpg/ bcccpg2c37f1815b664d2fa8d7e9fd0f475a41.pdf?sfvrsn=6d1899fb_12 Contaminated blood culture specimens can lead to a delay in the most appropriate care.

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Tesch, Brian Peter (2019) How to Better Assist Transgender Individuals Caught in Violent Domestic Relationships, Scholars Strategy Network, January 2018, retrieved from https://scholars.org/contribution/ how-better-assist-transgender-individuals- caught-violent-domestic-relationships

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Wallace, Cynthia (2015) Are LGBT-Inclusive Approaches for Patients and Staff on Your Radar Screen?, ECRI Institute, October 1, 2015, retrieved from https://www.ecri. org/Resources/AHCJ/2016_Resources/ Are_LGBT_Inclusive_Approaches_for_ Patients_and_Staff_on_Your_Radar_Screen.pdf

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Tesch, Brian Peter and Bekerian, Debra A. (2015) Hidden in the Margins: A Qualitative Examination of What Professionals in the Domestic Violence Field Know about Transgender Domestic Violence, Journal of Gay & Lesbian Social Services, November 16, 2015, Vol. 27, Issue 4, pp. 391-411, retrieved from https://www.tandfonline.com/doi/abs/ 10.1080/10538720.2015.1087267?src=recs ys&journalCode=wgls20&

Wang, Timothy et al. (2016) What The New Affordable Care Act Nondiscrimination Rule Means for Providers and LGBT Patients, The Fenway Institute, retrieved from https:// fenwayhealth.org/wp-content/uploads/HHS- ACA-1557-LGBT-Non-Discimination-Brief.pdf

Edie Brous RN, BSN, MS, MPH, JD is a Nurse Attorney in private practice in New York City where she concentrates in profession- al licensure representation,

medical malpractice defense, and nursing advocacy. She has practiced in major litigation law firms representing nurses, physicians, hospitals and pharma- ceutical companies. Edie is admitted to practice before the bars of the state courts of New York, New Jersey and Pennsylvania, the Southern and Eastern Districts of the New York Federal Courts and the United States Supreme Court. She is a member of many bar associa- tions and nursing organizations and was the 2011 president of The American Association of Nurse Attorneys.

Ms. Brous has an extensive clinical and managerial background in OR, Emergen- cy and Critical Care Nursing. In addition to her law degree, she holds masters de- grees in Public Health and in Critical Care Nursing from Columbia University. She has been part time faculty at Columbia University, and has held adjunct faculty positions at several universities teaching legal aspects of nursing. Ms. Brous has lectured and published extensively on le- gal issues for nurses and co-authored the textbook Law and Ethics for Advanced Practice Nurses. She is the 2008 recipient of the Outstanding Advocate Award and the 2017 Outstanding Litigation Member Award from The American Association of Nurse Attorneys.

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