June 22, 2004
NON-CONSENSUAL PELVIC EXAMINATIONS
By: John Kasprak, Senior Attorney
You asked for information on states that have passed or considered legislation recently on non-consensual pelvic examinations.
Medical students, as part of their training, often are allowed by their training physicians to perform pelvic examinations in the operating room when the patient is unconscious and the patient has not given explicit consent to the examination.
California law prohibits a physician and a medical student from performing a pelvic examination on an unconscious or anesthetized woman unless she gives informed consent, the examination is within the scope of care, or the examination is required for diagnostic purposes.
Illinois recently passed legislation requiring a physician, medical student, or other health professional to inform the patient of his profession upon giving treatment, including pelvic examinations.
Many OB/GYN departments do not regularly inform women when they will be undergoing pelvic examinations by medical students while under anesthesia. Pursuant to this practice, the training physician performs the examination first, and the medical student repeats it. A growing number of advocacy groups, citing both ethical and legal grounds, believe that more specific patient approval should be required for such exams, beyond current standards of informed consent.
Ordinarily, consent forms at teaching hospitals will include language to inform the patient that medical students may be involved in their care. Patients are informed that (1) they are receiving case from a teaching hospital and (2) that medical students may be involved in their care. If the examination being performed by the student is invasive, but is a procedure that would normally be contemplated in the course of treating the patient, then the informed consent agreement would be sufficient.
But there are cases where an instructor or attending doctor wants more than one student to examine the same patient or to have students examine patients for whom the particular pelvic examination is not indicated. Some observers argue that every patient should be given an opportunity to refuse any procedure or treatment. In all cases, the patient should be fully informed of the risks, benefits, and potential complications of all the procedures being contemplated while she is under anesthesia.
Some states have begun to act on this issue.
California passed legislation in 2003 (AB 663, Chapter 644; attached) addressing the unauthorized pelvic examination issue. Specifically, the act prohibits a physician and surgeon and a medical student from performing a pelvic examinations on an anesthetized or unconscious patient unless (1) the patient has given informed consent to the examination; (2) the pelvic examination is within the specified scope of care; or (3) if the patient is unconscious, the pelvic examination is required for diagnostic purposes. This law took effect January 1, 2004.
The Illinois Legislature passed a bill in its 2004 session (HB 1082; attached) that amends its Medical Patient Rights Act to address the unauthorized examination issue. The bill states that “any physician, medical student, resident, advanced practice nurse, or physician assistant who provides treatment or care to a patient shall inform the patient of his or her profession upon providing the treatment or care,
which includes but is not limited to any physical examination, such as a pelvic examination. In the case of an unconscious patient, any care or treatment must be related to the patient's illness, condition, or disease.”
This legislation was sent to the governor on June 17, 2004. It takes effect July 1, 2004.
Another Illinois bill, introduced in the Senate and similar to the California legislation, has not passed (SB 2729; attached).
In 2003, Kentucky considered, but did not pass, legislation somewhat related to this issue. Kentucky HB 172 (attached) would have provided that a person “ is guilty of unlawfully performing a physical examination when he is, or pretends to be, a physician, nurse, physician assistant, nursing assistant, X-ray technician, or mental health care professional and performs or prolongs a breast examination, a genital examination including a female pelvic examination, or a rectal examination solely for the purpose of sexual gratification, arousal, or abuse.” Unlawfully performing an examination would be a Class D felony.
The New York State Assembly is considering legislation that addresses pelvic examinations from a health insurance coverage standpoint, but does not concern the informed consent issue (AB 671; attached). This bill, which its Insurance Committee is considering, provides that every health insurance policy which provides coverage for hospital, surgical, or medical care must cover diagnostic testing for ovarian cancer upon the recommendation of a physician. Such testing must include a pelvic examination, a sonogram, and a CA 125 blood test and related laboratory and diagnostic services.