It seems obvious that if a woman is in a hospital and unconscious, then she should not have to worry about having a pelvic exam performed on her body that she did not explicitly consent to. However, the disturbing reality of what is occurring to patients in hospitals and clinics, especially teaching facilities, has brought this issue to the public’s attention.
While a medical student at the University of Hawaii in 2012,Dr. Shawn Barnes wrote about the shame he felt after being instructed to practice pelvic exams on anesthetized women. His article and activism brought this issue to light and helped to pass legislation that ban unauthorized pelvic exams in the state of Hawaii. In 2019, ELLE magazine conducted a survey of 101 medical students from seven medical schools and found that 92% percent reported performing a pelvic exam on an unconscious patient. 61% percent reported performing this procedure without explicit patient consent.
A 2005 surveyconducted at the University of Oklahoma found that a majority of medical students had performed pelvic exams to gynecologic surgery patients under anesthesia, and that in nearly three quarters of these cases the women had not consented to the exam. These survey results are incredibly alarming and indicate that it is necessary to clarify consent requirements to provide certainty for patients.
At the national level, the American Congress of Obstetricians and Gynecologists (ACOG) position is that “pelvic examinations on an anesthetized woman that offer her no personal benefit and are performed solely for teaching purposes should be performed only with her specific informed consent obtained before her surgery”. The Patient Privacy Protection Act aligns with ACOG’s position to ensure that unconscious patients are not used as teaching tool without their knowledge and explicit consent. Wisconsin Assembly Bill 128 simply requires hospitals and clinics in Wisconsin to have consent policy in place for pelvic exams on a patient who is under general anesthesia or otherwise unconscious.
Teaching medical students to identify abnormalities by conducting intimate exams— without prior express consent — can be regulated. Seventeen states have now made the practice illegal, including: Utah, Maryland, New York, California, Illinois, Virginia, Oregon, Louisiana, Maine, New Hampshire, Washington, Delaware, Hawaii and Iowa to ensure our patients are protected. See legislative examples below.
California: AB663 – (approved by the Governor 10/1/2003) – Prohibits a physician, surgeon, and medical student from performing a pelvic examination on an anesthetized or unconscious patient unless: 1) the patient has given informed consent; 2) the pelvic examination is within the specified scope of care; or 3) if the patient is unconscious and the pelvic examination is required for diagnostic purposes. A violation of this act would be considered a misdemeanor. Accordingly, the bill imposes a state-mandated local program per the state constitution.
Hawaii:HI Rev Stat § 453-18 (2013) – Prohibits physicians, osteopathic physicians, surgeons, and students from performing a pelvic examination on an anesthetized or unconscious female patient unless: 1) the patient gives prior verbal or written informed consent to the pelvic examination; 2) the pelvic examination is within the scope of care for the surgical procedure or diagnostic examination; or 3) the patient is unconscious and the pelvic examination is required for diagnostic purposes.
Illinois:SB2729 – Sen. Iris Y. Martinez, Jaqueline Y. Collins, M. Maggie Crotty, Kimberly A. Lightford (1/11/2005) – Provides that a physician or student undertaking professional instruction or clinical training may not perform a pelvic examination on an anesthetized or unconscious female patient unless 1) the patient gave informed consent to the pelvic examination; 2) the pelvic examination is within the scope of care for the surgical procedure or diagnostic examination; or 3) the pelvic examination is required for diagnostic purposes for an unconscious patient.
Virginia: HB2969 – Sen. Robert B. Bell (1/10/2007) – Prohibits students participating in a course of professional instruction or clinical training program from performing a pelvic examination on an anesthetized or unconscious female patient unless 1) the patient or her authorized agent gives informed consent to the examination; 2) the examination is within the scope of care ordered for the patient; or 3) the examination is necessary for the diagnosis or treatment of a patient who is incapable of giving informed consent.
Maryland:SB909 – Sen. Brian Feldman (signed/enacted 5/13/2019) – This bill prohibits health care practitioners and “certain students and trainees” from performing “a pelvic, prostate, or rectal examination” on an anaesthetized or otherwise unconscious patient unless one of the following elements are satisfied: 1) the health care practitioner, student, or trainee has obtained informed consent from the patient for the examination; 2) the examination is within the standard of care; 3) the patient is unconscious and the examination is necessary for diagnosis or treatment; and 4) in the case of an emergency when it is impractical to obtain patient consent and the examination is necessary for diagnostic or treatment purposes. The bill also authorizes health occupations boards to take actions against practitioners in accordance with hearing provision, which include reprimanding, placing on probation, or suspending or revoking the license or certificate of health care practioners under the board's jurisdiction who fail to comply with the requirements of this section.
Utah: SB188 – Sen. Daniel McCay (enacted 3/12/2019) – This bill requires written consent for pelvic examinations; states that the department may refuse to issue a license or renewal, or revoke, suspend, restrict, or place on probation an individual’s license if the individual has failed to obtain that consent; and holds that the health care provider is presumed to have lacked informed consent with respect to the patient examination if the health care provider fails to comply with the requirements for informed consent.
New York:S3353 – Sen. Jessica Ramos (signed 12/16/29) – Section one adds a new section 18-b to the public health law to state that in case of any health care procedure or examination, the fact that the procedure or examination is performed in the course of education or training does not diminish the requirement for informed consent for the procedure or examination.This bill is not specific to pelvic exams like the Wisconsin bill, but rather amends public health law to require informed consent for “medical procedures” during education or training more broadly.
Louisiana: HB 435 - Rep. Edmond Jordan and Rep. Barry Ivey (signed/enacted 6/11/20)