Yamille Hernandez
Yamille HernandezSenior Articles Editor

Imagine going to the hospital for uncontrollable vomiting. After an ultrasound and blood work, doctors are unable to figure out what is wrong. A doctor asks if they could run a test for sexually transmitted infections and you decline. The vomiting continues and so they prescribe you a powerful sedative to stop you from throwing up. You wake up and find a doctor finishing a pelvic examination that you did not consent to and that you did not know or expect would happen. That is what happened to Ashley Weitz in 2007.

Ashley is not the only one this has happened to and unfortunately, she is not the last one. The practice of having ob-gyn medical students practice pelvic examinations on women under a general anesthesia for surgeries related and unrelated to gynecological reasons has been a common practice since the late 1800s and remained unchallenged until a study unveiled that 90 percent of medical students practiced pelvic exams without consent during their ob-gyn rotation in the Philadelphia-area schools.

While this practice is not tracked by hospitals, many medical students have admitted to performing pelvic exams without patient consent and are speaking out against it. This prompted several states to introduce bills which make this practice illegal unless women gives explicit consent to a pelvic exam before-hand. Florida recently had a bill introduced to the House Chamber, which would have required explicit consent to perform a pelvic examination unless it was court ordered or was immediately necessary to avoid a serious risk of physical impairment. This bill died on the calendar. Today, only 11 states require specific consent for pelvic exams.

Opponents of the bill say that requiring specific consent is redundant because the patients provide their informed consent by attending a teaching hospital and signing documents allowing medical students to perform medical procedure on them. However, many women are not aware that they may receive a pelvic examination while under anesthesia . . . especially if they are seeking medical attention for something unrelated to their reproductive organs. These proposed bills usually call for a separate form which indicates that the patient is consenting to an examination of their pelvis.

Patients that have been victims of pelvic exams without consent may be able to sue the hospitals and doctors for battery, negligence or breach of consent.

A battery requires an intentional, unwanted, offensive contact. An unwanted pelvic exam conducted intentionally by the doctors for educational purposes seems to fit this category. However, proving that the exam was actually conducted may be difficult since many hospitals do not document the practice that their students conduct on patients. If the patient’s lawyer is hard-pressed to prove the intentional tort of battery, they may find it easier to prove medical malpractice which requires that they prove that the hospital created an unreasonable risk of harm in allowing the medical students to perform examinations on the patient. Interviewing the student doctors who were assigned to the area where the patient was on the day of the unauthorized pelvic exam may provide the evidence required for a medical malpractice.

The patient may also sue for a failure to obtain informed consent. This cause of action requires the plaintiff to prove that there was a breach in the standards of disclosure which led to an uninformed consent on the plaintiff’s behalf which led to the damages. The plaintiff will have to prove that the hospital and doctors had a duty to inform her that a pelvic exam may be conducted and that even if the hospital had informed the plaintiff, the plaintiff would not have consented.

While legal remedies may be available, avoiding an unwanted pelvic exam is the best option. The practice of performing unconsented to pelvic exams happens most often in teaching hospitals because they have many students who need to practice what they learn. If you live in a state where this practice is legal, when you are in a hospital – even if not in a teaching hospital – you should: (1) specifically state to your doctors and nurses that you do not agree to a pelvic exam, (2) you should also contact the hospital management team who can inform you of the hospitals policy on performing pelvic examinations on women under anesthesia, and (3) inform them that you do not agree to this practice.