August 25, 2019

The Law and Non-Consensual Pelvic Exams

Imagine waking up from anesthesia after surgery to find that your most intimate parts hurt and feel bruised, with no explanation for that pain as your surgery was unrelated. Medical students may have practiced procedures on you without consent. Lawyers specializing in medical malpractice at our law firm can advise you on how to proceed with a claim, and how to assist with making this practice illegal throughout the country.

Medical professionals are supposed to advocate for their patients, and if they use them as training dolls while unconscious to learn how to do pelvic exams, without explicit consent, it is a violation of the patient’s trust and dignity. Some would even equate it to rape, but it is most certainly based on questionable ethics. Many perform rectal and prostate exams too.

Current law

The practice is fairly common – a study in the ‘90s showed nearly 40% of medical schools allow this practice as part of their teaching curriculum, and as many as 90% of medical students performed such exams. Currently, the practice is legal in the majority of states, where no explicit consent is required.

It is currently expressly outlawed in California, Illinois, Maryland, Oregon, Iowa, Virginia, Utah, New York, and Hawaii, and Professor Wilson from Illinois has launched a campaign of public awareness through the Epstein Health Law and Policy Program to have this extended to all states. In a recent editorial in the Chicago Tribune, she called on medical associations to stop the practice.

The American Medical Association, the Association of American Medical Colleges and the American College of Obstetricians and Gynecologists condemned the practice, the latter stating if it is performed solely for teaching purposes explicit consent is required.

Federal Trade Commission and Department of Justice hearings in 2003 brought no relief, but the publicity spurred some state activity.

However, opponents claim that despite there being no federal law explicitly disallowing the practice, it is immoral and indefensible based on the basic principles of informed consent, and are violations of basic rights, autonomy, and trust.

How do they defend the practice?

The medical schools that perform these procedures routinely claim that:

  • If you accept care at a teaching hospital, you implicitly consented.
  • They could not ask for consent as the patient may decline.
  • If you signed a surgery consent form, you have implicitly consented to any procedure.
  • Not enough women would consent to help train students.

All these ‘justifications’ are flimsy at best and can be turned upside down. Informed consent must clearly inform the patient of the condition, the procedure, and potential procedures to be performed and the outcome. Doing procedures that are not medically necessary under sedation, and letting several students perform the same procedure, is unethical and should be stopped. Many university hospitals require explicit consent, and others hire volunteers to act as patients for training purposes.

Changes to the law

The following states have introduced bills, often with bipartisan support, since the beginning of the year:

January 3 – 2019 NH S.B. 117 – New Hampshire
January 8 – 2019 NH H.B. 422 – New Hampshire
January 8 – 2019 MO H.B. 486 – Missouri
January 11 – 2019 CT S.B. 16 – Connecticut
January 16 – 2019 WA S.B. 5282 – Washington
January 22 – 2019 Bill S.1219 Massachusetts
January 23 – 2019 NE L.B. 735 – Nebraska
February 4 – 2019 OK H.B. 1452 & 2019 OK S.B. 621 – Oklahoma
March 1 – 2019 RI H.B. 5797 – Rhode Island
March 4 – 2019 TX H.B. 3017 – Texas
April 2 – 2019 S.B. 279 – Georgia
April 3 – 2019 SF 2782 – Minnesota

It has been suggested that federal regulation involving the receipt of graduate medical education funds is required. Patients may have to resort to tort law to protect their dignity and to allow them to decide who touches their bodies and when.

If you have questions and live in Michigan, call Eileen Kroll, a Registered Nurse and Personal Injury trial attorney, at Cochran, Kroll & Associates, P.C., at 1-866-MICH-LAW (1-866-642-4529) for a no obligation case evaluation.

Nikole has a special interest in medico-legal issues and holds post-basic degrees in medical law and business. She has developed quality improvement and safety plans for many practices and facilities to prevent medico-legal issues and teaches several courses on data protection and privacy, legal, medical examinations and documentation, and professional ethics. She has been writing professionally on legal, business, ethics, patient advocacy, research and medico-legal issues in articles, white papers, business plans, and training courses for over thirty-five years.

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