Unauthorized Pelvic Exams: Public Engagement Initiative

 
 

Medical teaching is crucial to our health—training medical professionals to identify normal and abnormal anatomy helps all of us.  Yet some exams are by their very nature intimate and invasive, like teaching medical students how to palpate a woman’s vagina or pelvic region.  Often these teaching exams are performed on women who are admitted for gynecological surgery.  Sometimes, patients tell us, medical students perform pelvic exams for the student’s benefit on women admitted for non-gynecological surgery.

For nearly two decades, Professor Wilson has spearheaded efforts to require express consent for intimate exams when the exams are for the student’s, rather than the patient’s benefit (see “Autonomy Suspended”, “Unauthorized Practice”, and “Using Tort Law to Secure Patient Dignity” for articles addressing this issue).

Teaching medical students to identify abnormalities by probing a woman’s vagina and cervix — without express consent — can be stopped easily. Ten states have now made the practice illegal, including New York, Maryland, Utah, and Delaware in 2019. Others are:

Yet, the practice persists because the controversy it periodically sparks dies out eventually. And, like clockwork, attending physicians and medical educators resume using women like test dummies — stripping them of the right to decide who touches their bodies.

In the early 2000s, small-scale studies reported that large numbers of medical students were performing exams on anesthetized patients. To understand why, Professor Wilson interviewed faculty at more than a dozen medical schools across 10 states. Four flimsy justifications emerged for dispensing with consent to medical procedures that are done to train aspiring healthcare professionals.

  • The first turned informed consent on its head: We cannot ask for consent, teaching faculty claimed, because if we ask, the patient might say no. Of course, removing the opportunity for autonomy because a person might exercise it makes a mockery of personal agency.

  • The second excuse rested on a fiction: that women implicitly consented to be used for medical teaching when they accepted care at a teaching hospital. But how many people would know that Beth Israel Deaconess is a teaching hospital for Harvard University, or that Stamford Hospital, 40 miles from Manhattan, is a teaching hospital for Columbia University. Neither name nor proximity would tip off reasonable patients. Indeed, in one study, most elderly patients had no idea they were being treated in a teaching hospital.

    Insurance status only compounds matters. Many patients choose network providers for cost reasons, not because they are willing to be subjected to medical teaching.

  • Third, medical educators make legal claims about the forms patients sign — that a student’s intimate examination on an unconscious woman is an ordinary component of the surgery to which she consented; and that consent for one procedure encompasses consent for additional related procedures. Any fair reading of these forms is that women consent to procedures for their benefit, not for students’.

  • The final excuse would be the most compelling, if true: Not enough women will consent to help train students. Yet, studies refute this. Women routinely consent to pelvic examinations for educational purposes.

Those explanations, and the shocking revelation that women could be used for teaching without even being asked, catalyzed what appeared to be tangible change. In 2003, the Federal Trade Commission heard testimony about non-consensual student exams. In the months leading up to those hearings, the American College of Obstetricians and Gynecologists disavowed earlier guidance that had posited a duty by women to participate in “teaching exams.” After the hearing, the Association of American Medical Colleges announced that unauthorized exams are “unethical and unacceptable."

Recent work has made clear that these laws have not hastened meaningful change.  Medical students have raised concerns about the ethics of not asking. Practicing physicians have questions whether unauthorized practice should be discarded.

And of course, patients have urged lawmakers to put a stop to not asking.

Kaitlyn Costello, J.D. Candidate 2019

Since November 2018, when Professor Wilson’s Opinion Editorial appeared in the Chicago Tribune, a team of students at the College of Law has been working on this issue. The goal is to focus the attention of lawmakers, the media, and the public on the need to respect the agency and dignity of all patients in order to secure meaningful change.  Sweeping change will require a movement to succeed.

Jenna Hubaishy, J.D. Candidate 2019

A map of states banning unauthorized pelvic exams as of January 1, 2019.

A map of states banning unauthorized pelvic exams as of January 1, 2019.

A map of of current efforts to ban unauthorized pelvic exams as of May 31, 2019

A map of of current efforts to ban unauthorized pelvic exams as of May 31, 2019

Since January 1, 2019, twenty-two bills have been introduced in fifteen states:

These bills have bipartisan sponsorship in many states.