EMS Denied Transgender Patient Care Causing Her Death, Alleges Sheepshead Bay Lawyer

A photo from Smith’s drivers license.

ONLY ON SHEEPSHEAD BITES: Emergency responders left Shaun Smith to die because she is transgender, claims a lawsuit brought by the victim’s mother. The Sheepshead Bay attorney representing her says it’s part of a disturbing national trend of discrimination against transgender patients.

The allegations stem from a June 15, 2012, incident, when Smith’s mother, Jenette Cox called 911 after Smith – a transgender woman who was born a man – went into diabetic shock. When EMS responders arrived on the scene and found the victim to be transgender, they failed to render services, Cox alleges.

“This is somebody who needed urgent care and didn’t get it, and basically what stopped them were breasts on an originally male body,” said Ilya Novofastovsky, the Sheepshead Bay attorney representing Cox in the malpractice and discrimination case against the NYPD and the FDNY, which operates the EMS.

Novofastovsky said discrimination against transgender people by emergency responders and medical workers is a nationwide problem that causes a delay or absence of care, and leads to additional suffering and even death for the patient.

Court papers state Smith, who had no history of diabetes, died of diabetic ketoacidosis, which results from a shortage of insulin.

The case hinges on whether Smith was dead when the emergency responders arrived, and whether Smith’s transgender state, as Cox claims, influenced the EMS’ response.

Smith, 30, began hormone replacement therapy in 2010. The hormones she took – estrogen, progesterone and spironolactone – caused Smith to grow breasts and shrunk her penis, according to her mother.  Smith bought the pills online and was taking them without consultation from a physician.

Smith woke her mother the night of her death, complaining of shortness of breath, Cox said.  Cox told Smith she would get her sneakers so they could go to the emergency room. By the time she returned, Smith was unresponsive.  She called 911.

Cox said the 911 operator asked her to administer CPR, which she said she was unable to do. The operator also asked her to move the body to the floor, but Cox said she was unable to because she is 69 years old and has a knee injury.

Cox said the ambulance arrived in about 10 minutes.

Two EMS responders followed and checked Smith’s pulse, but they said there was nothing they could do, according to Cox.  Cox repeatedly asked why they were not trying to revive Smith.

“They didn’t even open their equipment to try to work on him,” said Cox. “They didn’t do nothing for my son.”

The responders declared Smith dead at 4:42 a.m.

The case cites a 2010 study done by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, which surveyed 700 lesbian, gay, bisexual and transgender (LGBT) respondents from across the United States. It finds that 19 percent of transgender persons reported having been refused medical care, while 28 percent said they faced discrimination in medical settings.  Five percent reported being denied care by EMS responders.

Spokespeople for the NYPD and the FDNY declined to comment because the case is pending litigation.

Novofastovsky  and Cox also name Harlem Hospital in the lawsuit, which Smith checked into on December 2011, complaining about a headache from having taken “too many diet pills,” according to the hospital report. The medical report includes the hormones that Smith was taking at the time.

Novofastovsky said the hospital was also discriminatory in caring for Smith, having sent her to the mental health clinic rather than given medical care, where they might have discovered the onset of diabetes.

He points to the report from the visit, which diagnosis Smith with an “unspecified, drug induced mental disorder.”

“[Transgender people] don’t get doctors, they get psychologists,” Novofastovsky said.

Novofastovsky said his firm consulted with medical experts on this case, and that the hospital missed an opportunity to address the onset of diabetes, which he claims was brought on by the cocktail of hormones Smith was taking.

“They should have either done hormone monitoring or referred him to a physician, to monitor his intake,” he said.

Harlem Hospital representatives declined to comment on the case.

Novofastovsky would not say what damages he was seeking for his client.

Smith was born and raised in Harlem. She worked as a security guard before being laid off two years ago.

“He helped me a whole lot,” said Cox, who depended on Smith to pick up her medication and do her shopping for her. “I miss my son, because he was my right hand and my left hand.”

— Ilie Mitaru

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  1. Diabetes is something ANY competent medic would know to look for in anyone taking HRT. It’s not something that you wouldn’t test for by mistake or carelessness.

    And CPR when someone is not breathing, heat stopped is standard while you assess the situation. It may only help in 1/3 of such cases, but you do it anyway.

  2. If ‘mom’ is suing because her child wasn’t treated because she was transgender, why does she keep using male pronouns? It’s not helping her case. Not one single bit.

  3. I don’t know the exact protocols in NY, but here in NJ, the protocol is
    that we EMTs start CPR unless there are obvious signs of death (rigor
    mortis, lividity, decomposition, or injury too severe to allow CPR e.g.
    decapitation) or we are shown a valid Do Not Resuscitate order.
    Paramedics (who have a higher level of training, and much fancier
    equipment) can check for less obvious but equally definitive signs that
    we don’t have the tools to detect. I’ve had patients where CPR was
    obviously appropriate, where it was unclear so we did it anyway, and
    where we didn’t start because it was clearly too late. Sometimes CPR is
    started for the sake of “doing something” to comfort the family even if
    the EMS personnel know it’s really too late, but that’s not part of the
    ethically and legally mandated standard of care. Without more details
    about the patient’s condition when the EMTs arrived (and whether they
    were EMTs or Paramedics – people who don’t work in EMS often use the
    terms interchangeably), I cannot judge whether the decision was
    medically appropriate or not. And if the only evidence we have is their
    own statements, we may never know if they’re telling the truth or lying
    to cover their asses. I really hope that this was not bigoted
    negligence, but we may never know.

    Incidentally, CPR has a
    baseline success rate of about 5%, not 33%. It depends on a number of
    factors, and can be as high as 50% if defibrillation (if appropriate) is given within minutes, but that’s unlikely unless an AED and someone trained to use it are already present. Even 5% is better than 0% though, so you’re absolutely right that in the absence of obvious signs of death, you do it anyway. I strongly encourage people to become trained in how to perform CPR and use an AED – most laypeople will never be in a situation to perform CPR, but if you ever are, it could literally make the difference between life and death.

  4. Wow what an idiot, taking all that hormone crap w/o a doctor? WTH did she expect? Sounds like a DOA, YODF. That’s dead on arrival, your own damn fault.

  5. It’s not uncommon for family members to use the wrong pronouns, especially early during transition, but that is medically irrelevant. The only relevant questions are whether the EMS providers performed the necessary medical examination, and whether or not the findings indicated that CPR was the appropriate course of action. There are medical criteria to determine whether nor not to start CPR – the patient’s gender, no less the pronouns a family member uses, are not among those criteria.

  6. It is extremely offensive for this publication to knowingly use the wrong pronoun for Shaun Smith throughout this article. I would hope that the author OR EDITOR would correct such a grave error in reporting. This would be a very important and valuable article if the author didn’t loose all credibility by continuously referring to the Shaun Smith (MALE) as a female. Regardless of whether or not Mr. Smith was DOA, or if the first responders did or didn’t to there job, the real travesty is not giving him the basic respect of using the correct pronouns.

  7. She wasn’t getting proper medical attention beforehand. She bought medications from the Internet irresponsibly, perhaps unaware that there are programs here in NYC that would have helped and monitored her while prescribing proper amounts. Financial hardship would not be a prohibitive factor.

    From personal experience I’d say that the EMS personnel had every reason to use CPR, the time period was short and I understand that their protocol under that circumstance would be to administer it.

  8. I was thinking the same thing. Yes I know it is not medically relevant, but if a lawsuit is in play, it would better the case if mom was on the same page….

  9. To the grammar police, seriously? For the rest of the speculators, let’s try to keep in mind a few things; First, the decedent was taking serious medications that were NOT prescribed to him for several years! Not days, weeks or months but YEARS! Upon beginning a self prescribed hormone therapy in 2010, the decedent began having medical problems in 2011 and sought help in December. The decedent, ignoring the onset of symptoms, continued using medications NOT prescribed to him. The LAWYER and the family insist that this was a new onset of diabetes however, there are other medical conditions that can and do result in ketoacidosis.

    The story also refers to a hospital diagnosis that the decedent was taking too many diet pills which in itself can cause rhabdomyelosis which can also cause ketotic breath.

    Is it sad that this young life was cut short? Absolutely! However, to believe this ambulance chaser is to assume that the first thing any Paramedic or EMT does upon arrival at the scene of an unresponsive patient is to check the patients genitals.

    Sadly, the city will settle because it is cheaper to do so than fight and easily win in court thus, encouraging even more frivolous suits. Sadder still is that the primary factor in this whole sad story is the decedent taking drugs that were not prescribed for him over a period of YEARS without any medical monitoring. The decedent continued taking these drugs in spite of developing complications and yet, it is someone else who MUST MUST MUST be to blame.

    There is someone else to blame here and that is the mother. She could and should have insisted her son see a physician BEFORE starting a hormone regimen that would play havoc with her sons body. She should have insisted that her son STOP the self prescribed hormone regimen when the symptoms began until he saw a physician. But then we don’t do personal responsibility or accountability anymore do we?

  10. “…the time period was short” based on what? The assertions of an attorney looking for a pay check? Seriously, how can any of us say whether or not CPR should have been started based on nothing more than the claims of an attorney and the plaintiff? When someone you love is in distress, seconds seem like hours.

  11. They arrived a short period after they were called. Ten minutes. And as Zoe Ellen Brain mentioned, you do it even when as the percentages are against you.

  12. Can’t believe those people calling her an idiot for taking the meds without help. Maybe they did not offer her enough help and maybe thats why she had no choice but to self medicate. I agree the ems should have treated her whether she was transgender or not. Plus her mum slipping up and using male pronouns has nothing to with it.

  13. Patrick, I think she means time down. After 3 or 4 minutes of not breathing,
    there is too much brain damage to bring anybody back. The mother is not
    a medical professional but if this woman was talking a few minutes ago,
    then any competent EMT should have started compressions. No way there
    was rigor or any obvious signs that soon, she would have still even been

  14. The point and the case is not whether Smith was ‘really transgender’ or how her mother viewed her. It’s about whether or not her death was preventable. What does it matter how her mother viewed her or what pronouns she used. This lawsuit will not attempt to investigate whether or not she was really transgender so I don’t understand how her mother referring to her as a woman would ‘help the case’. If prejudice was the cause of death that must be dealt with, whether Cox views her child as a man or a woman. You are COMPLETELY and UTTERLY missing the point. Why would the case be less valid because her mother may not have viewed her as a woman? It’s not just medically irrelevant, it’s also totally irrelevant to the case.

  15. So you don’t start CPR? Down less than 10 minutes and responsive before that? You’re either a shitty emt or a shitty person, and it sounds like both.

  16. I agree. If someone is foolish that doesn’t make them less deserving of care. Obese people are only obese because they knowingly eat themselves there. It may be due to a variety of factors, such as depression but no one forces the food down their mouths. They are not denied care because their illness is self inflicted and the same goes for those who have used drugs irresponsibly. It is not the job of doctors to enforce morality, only to facilitate treatment, provide support and to prevent illness when and if it occurs.

  17. Quite simply, the City will NOT win in court. The precipitating factors are not relevant. Improper procedure and possible bias are the questions of this case. The victims choice of self-medicating does not factor into whether you provide treatment or not.

    And please stop using the wrong pronouns.

  18. I am aware that the point is not whether she was really transgender or not. Not my point at all. My point in mentioning the mother is that perhaps the mother had some prejudices herself. I do think it is weird to sue for prejudice if you have the same prejudice yourself. That was my point.

  19. Well see here is the thing too… No body really knows how long she was down. The mother went to put shoes on. If she is an elderly lady (69) with a knee injury, it could have taken 5 to 10 minutes for that. And if she collapsed when she first left the room, add on the time it took mom to try to rouse her and decide to call 911. After hanging up, it took 10 minutes to get there, but there may have been 10-15 minutes before that she was unresponsive.
    I cannot say why they did not try. Always supposed to no matter what.
    But there are other signs of death besides rigor that would have been obvious at that point.

  20. I dont think anyone said that because she was transgender she was less deserving. Or even because she was taking internet medication. None of that is any reason for not receiving treatment.
    Again my comment about the mother was more related to her own possible prejudice and also the fact that I would think the lawyer would be wanting to play up the mothers acceptance of her…

  21. Yes I guess you are right, but from my POV, I would accept my son no matter if her decided he was my daughter instead..

  22. I don’t think you or any of us can make a valid judgement on the mother’s position with only the facts in this article. Family relations for trans people is an iffy subject at the best of times.

  23. That is how it is in Wisconsin, too.
    Unless there are obvious signs of death, such as the ones you mentioned, we perform CPR.

  24. Wow… this is terrible reporting.

    My brain hurts after reading this article.

    That being said, if she was dead on scene, they should have started CPR. If rigor mortis or dependent lividity had set in by the time they got there, there would have been nothing they could have done.

  25. Zoe: Well, first she was taking meds without a physician’s approval. There is nothing in this story to denote that the EMS personnel acted in a discriminatory manner.

    However, now that I think on it, part of taking a complete patient report involves learning what medications a patient is taking, and preferably taking the meds with the patient to the hospital. So, they should have known that she may have had a diabetic issue. Given that they simply checked the pulse (if that is indeed all they did… which troubles me because they should have AT THE VERY LEAST had a jump bag and AED with them since the patient was unresponsive when the call was made). So, at the very least, the proper level of care was probably not given, and they are probably right to be sued for malpractice or failure to give proper care or whatever. Honestly, though, based on the shoddy reporting and the lack of information, it is difficult to tell what really happened and how it should be dealt with.

  26. thank you very much for the accurate and consistent use of pronouns in this article. great work, ya’ll!

  27. WOW, you assume that what the lawyer writes is fact? Why have a trial? Why not just execute the EMS folks right now? Your assumption is that the first thing the EMS personnel did was check the patients genitals?

    A person taking illegal drugs for several years, ignoring complications, not being cared for by a physician are all irrelevant because as far as your concerned, the accusations stand on their own sans any real fact or rebuttal?

    What law school did you go to?

  28. Here is the point, do you honestly think the attorney or plaintiff in this case is going to say anything different? BTW, I was a Paramedic for 25 years and NEVER did it ever matter to me what race, religion, sex or sexual proclivity a patient had. It is irrelevant! What is relevant is that not one person here has ANY knowledge about this incident other than what is alleged by the attorney and they never lie right?
    The attorney bases his complaint on what the plaintiff states, NOT on fact! All of this will come out in court BUT, more than a few folks here don’t think the facts matter. All one has to do is accuse a person and that is good enough right?

    If you weren’t on the scene, all you are doing is speculating on what may or may not have happened. Why not put down the ropes and pitch forks and provide the presumption of innocence?

  29. Look, I am not trying to get into a war of words here but since you are relying on Zoe for your medical justifications, ask her how long a diabetic (never diagnosed nor taking meds for diabetes) has to be down before going into cardiac arrest?

    More than10 minutes.

    And no, you don’t work patients who are not viable. To do so would be to needlessly deprive someone who is viable an ambulance.

  30. So an EMT comes into a call, determines no lifesaving measures will help and that makes them discriminatory? Over my career, then, I must hate babies, males, females, old people,young people black people, white people and every race in between. Pronouncing death, however uncomfortable for families, is something an EMT does rather regularly in New York City and its based on criteria far more relevant than someone being transgendered- dependent lividity, rigor mortis, etc. Obviously, the entire story is not written here, but I don’t see how the leap to discrimination was made… The factors preceding this death- most likely resulting from self-medication- are irrelevant in the actions of the EMT’s. It seems just from this story, they came in an made a clinical determination that the person was dead. A separate issue is the previous ED visit for using too many “diet pills”- my guess this was the excuse for the internet-pharmacy purchased medications. My advice- NEVER do anything you do not want to explain to medical professionals- and DON’T lie to us…it makes it harder to take care of you, and may end up compounding your problems. I feel for this mother, but from the story, it doesn’t seem that this is much more than the premature loss of a life I hope is at peace.

  31. Im sure there is a logical explanation for why EMS didnt start CPR. If there is obvious death which includes rigor mortis and dependant lividity, EMTs in NYC are allowed to pronounce the patient dead. As a EMT/Paramedic who was working in NYC for the past 10 years, I highly doubt any provider would not start CPR because someone is transgender. The real issue is the mother trying to blame the death of her son/daughter on someone else. I have no doubt in my mind that the hormome therapy she was partaking in not under a doctors care caused her blood sugar to spike causing diabetic keto acidosis leading to death. To blame the Harlem hospital as well is even more ridic. It is easy to blame someone else because your inaction in your childs life when something goes wrong. Maybe, parental intervention in dangerous self medicading procedures without the consultation of a medical professional couldve been done effectively without the tragic outcome. Finally, I dont know about you but bad knee or not if my child was in arrest I would do whatever I could to try to revive them. Just saying.

  32. Very well said. It’s hard to tell in that particular situation and we may never know. What has me more concerned was that she went to the doctor prior to this and was not properly checked out, just simply wrote off as “mental” case and handed to a shrink, when really headaches and dizzy spells are the first signs of diabetes! And sometimes one test isn’t enough to rule it out. You might have to undergo prolonged testing of the urine and blood before it can be determined. It’s just sad that this happened and it saddens me even more the prejudices doctors and healthcare professionals have. As a lesbian person I was recently looking for a ‘gay’ friendly doctor to which one of my straight friends replied, well does it really matter? Of course it matters! I was looking into having children and needed a woman doctor. Doctors who aren’t ‘gay’ friendly may not treat me with the same respect as a straight couple who is having problems conceiving. Which means I’ll spend more money on a doctor who is giving less than good healthcare and it’ll take longer for me to get pregnant. not only that but they’ll look at me and my wife every time we go in like “well why don’t you just go get a penis and be done with it.”

  33. Should I take your last question to be an admission that you know little about the construction of law?

    I assume that some basic provable facts exist. The major one is that this person was not given procedures that possibly could have saved her life. The interpretation as to why this happened shall be made by a court of law. The family of this person has to right to seek redress, and ask for damages based upon a consideration as to why the events surrounding her death occurred as they did.

    You keep coming back to issues that would not be an allowable defense for the failure of these individuals to do all that was possible to save this person’s life. While these matters will come up as the historical timeline of events, they are background to what is of relevance in deciding this case. Just as they are background in the news story reporting the filing of this lawsuit.

  34. The construct of the lawsuit is what? Let’s go to law 101 and define the requirements of a tort shall we?
    1)duty to act; The EMS Crew had a duty to act when they arrived on scene
    2)Breach of duty: your assumption is that the EMS crew failed to act properly based on what?
    3)Proximate cause; your assumption that the failure to perform CPR is what killed this individual. Again based on what?
    4) Damages; The assumption that had the EMS crew performed CPR, the patient would have had a different outcome.

    Assumptions are not admissible.

    For the record, I personally believe that the LBGT community should be treated equally in every aspect of any civilized society. I also believe that you have gotten on your soap box to pillory the EMS crew without ever even hearing their version of the story.

    Imagine that, convicted based solely on an accusation, Sure hope that never happens to you.

  35. Zoe Ellen is not the basis of my understanding of this but I trust her authority on such matters.

    And I have witnessed extreme measures being taken on a person whose chances of resuscitation were almost zero.

  36. I am not trying this case. I am merely making an intelligent observation that the facts as presented represent a actionable claim. I make no claim that a court will find that the the interpretation of the facts will result in a finding of fault by the responding parties. EMS will present their defense to the charges. The court will decide on the validity of their representations of fact. All I am saying is that there is merit in the filing of this suit, and definite questions about the actions that were taken by emergency personnel.

  37. A claim has been filed, no facts have been presented. Otherwise I think we agree overall.

  38. Is your comments about pitchforks directed to me? I did not even comment once on what the EMT did or did not do. It did not even occur to me that they did not do what they should. I just assume they would. All paramedics I have known in my 20 year Nursing career treat patients no matter sexual assignment

  39. Thank you for noticing what all of the fighters failed to. The person’s own mother refused to attempt CPR. Seriously?! You are looking for money from NYC because the responding ambulance did what they are trained to do after you left your child lay dead on the couch for at least 10 minutes. Also, the article doesn’t say if arrival was 10 minutes after initial call, or after hanging up, or somewhere in between. Also, if the lawyer’s allegations are true about the EMTs seeing breasts on a male body, that means they cut off the shirt to attempt CPR, therefore working the code, or at least attempting something There are too many holes in this story to give her the millions she will attempt to get.

  40. As a transgender who works in the health system I can tell you that people of color and minorities are no only treated different but are to a certain point afraid of doctors and health workers. Poor people of color can be mistreated and use for all sort of experiments. This is just one more case among the many that I witness within my 20 years working in this field. If a transgender person goes to the doctor it will be very smart if a family member goes along. That way they know you aren’t just a person without care. Just saying!

  41. So, this man killed himself by smuggling in counterfeit drugs from India by internet. He suffered from mental illness and substance abuse, then.

    The NGLTF “report” states men like him face discrimination. They don’t if they do not defraud doctors.

  42. The problem is that not everyone is like you.

    In a national sample of over 6500 Trans people:

    “19% of our sample reported being refused medical care due to their transgender or gender non-conforming status, with even higher numbers among people of color in the survey”

    The Tyra Hunter case was particularly blatant, with multiple witnesses

    “The circumstances surrounding Hunter’s death sparked widespread fear in the LGBT community that its members might be mistreated and harassed by
    the very institution responsible for rendering them emergency medical assistance. Injured in an automobile accident, Hunter died shortly after a firefighter stopped treating her when the firefighter realized that Hunter was a man dressed in women’s clothes. Rather than assisting Hunter as she lay dying, the firefighter harassed her by making homophobic jokes to his fellow firefighters.”

    Did this happen here? No idea. I’d like to think it didn’t, that the EMT people present acted with the same professionalism that I’ve always seen from them.

    But the evidence is overwhelming that sometimes it *does* happen. The mother’s story may be completely wrong, but unfortunately, it’s perfectly plausible.

  43. “Jenette Cox called 911 after Smith – a transgender woman who was born a man”

    You mean her mother literally gave birth to a full-grown man? Holy shit why did we not hear of this sooner?

  44. The hormones did not cause DKA. If she developed Type 1 diabetes as an adult, it is frequently missed by many healthcare professionals, sadly. Because so many are uneducated and believe that only children develop Type 1 diabetes. If they do catch diabetes in an adult who is of young to middle age and not obese, they still assume that it is Type 2 insulin resistance rather than an autoimmune condition. It is a terrible situation that puts many people at risk for diabetic ketoacidosis. Transgender people’s healthcare needs are not being met in too many cases to be sure, but 1/2 of all people do not know that they are at risk for diabetes at all. And 5-10% of those diagnosed as Type 2, are actually autoimmune diabetics and given the wrong advice and the wrong medications, when what they need is insulin.

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