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Using tort law to secure patient dignity: often used as teaching tools for medical students, unauthorized pelvic exams erode patient rights. Litigation can reinstate them.

Article Excerpt
To the surprise of many people and the consternation of some medical school Faculty and students, a media firestorm erupted last year over teaching hospitals' practice of allowing medical students to perform pelvic exams on anesthetized patients without their express consent. (1)

This practice, common since the late 1800s, (2) was largely unchallenged until a 2003 study reported that 90 percent of medical students who completed obstetrics and gynecology (ob-gyn) rotations at four Philadelphia-area medical schools performed pelvic exams on anesthetized women for educational purposes. (3)

Although medical students performing educational exams on anesthetized women do not receive feedback and thus cannot hone critical communication skills, teaching faculty argue that being unconscious relaxes the patient's muscles, making it easier to palpate anatomy, and spares the patient the humiliation of being examined multiple times while conscious. (4)

As the controversy unfolded, it appeared initially that informed consent policies might change for the better. The American College of Obstetricians and Gynecologists (ACOG)--which tepidly defended the practice in 1997, asserting that patients have "an obligation to participate in the teaching process" (5)--issued a one-paragraph statement two months after the 2003 study was published, affirming the relevance of informed consent.

If the pelvic exam, ACOG declared, offers a woman "no personal benefit and is performed solely for teaching purposes, it should be performed only with her specific informed consent, obtained when she has full decision-making capacity." (6)

The day after the Federal Trade Commission and the Department of Justice heard testimony on the topic, the Association of American Medical Colleges (AAMC), which represents 125 accredited U.S. medical schools and over 400 teaching hospitals, issued a three-paragraph news release that called the use of women under anesthesia without their knowledge and approval "unethical and unacceptable." (7)

California enacted new legislation making unauthorized examinations a misdemeanor and grounds for revoking a physician's license. (8) Finally, a half-dozen medical schools announced that they had voluntarily begun, or would begin, to ask patients for explicit consent before medical students perform pelvic exams. (9)

Unfortunately, these early victories quickly stalled. At the same time a handful of schools revamped their policies, an equal number of hospitals and medical schools publicly dug in, defending the practice:

* Andrea Rapkin, a professor of obstetrics and gynecology at the University of California at Los Angeles (UCLA) Medical Center, noted that while UCLA doctors inform patients that they will be examined under anesthesia, they "don't specify that it is a pelvic exam." She explained that "we have no reason to specifically state that a medical student will [perform the exam]. It's not the whole team of medical students--it's usually one or two." (10)

Last year, William Dignam, UCLA professor emeritus and former ob-gyn clerkship director, elucidated why an explicit discussion with patients of student participation is unnecessary: "I'm reasonably certain that patients know medical students will be participating," adding, "it's pretty much covered in an overall consent form." (11)

* An ob-gyn professor at the Medical University of South Carolina (MUSC), Steven Swift, acknowledged that medical students who are directly involved in a patient's care perform pelvic exams after the patient is anesthetized for gynecological surgery. They do not secure specific consent for the exam, he noted, as it is considered regular medical practice in the field, like helping with surgical staples. Furthermore, he said, "patients understand this is a teaching hospital and that residents and medical students are involved in their care." (12)

* John Larsen, George Washington University Hospital's ob-gyn chairman, noted that he had "no plan to amend the hospital's policies. 'I'm a policy minimalist,' he said." (13)

Clearly, relying on media exposure or government regulation will be slow going. When the media loses interest, what incentive is there for teaching faculty or hospitals to voluntarily change? Teaching hospitals take patients who are in the worst position to know what's occurring--they are unconscious--and use them in ways that leave no physical signs and are often undocumented in the patients' medical records.

Given the inherent secrecy of pelvic exams on anesthetized patients, hospitals and faculty have yet to defend their conduct in courtrooms. This secrecy, and the resulting lack of legal oversight and accountability, have reinforced the sense that doctors and hospitals don't really need to obtain consent when patients are most vulnerable.

Although patients have been unable thus far to enforce their own interests, the tort system may yet succeed in securing...