A new batch of states is looking to legislate the level of informed consent when it comes to medical students performing pelvic exams for educational purposes on unconscious patients.
At least 20 states already have consent laws for this practice. Montana’s governor signed a bill in April, Missouri has legislation that needs the governor’s signature to become law and Ohio lawmakers are also considering it.
Colorado lawmakers want to go a step further, with Democratic Gov. Jared Polis expected to sign a bill that one bioethicist calls the broadest she’s seen — and says may go too far — due to a requirement of naming the involved students ahead of time and introducing them to the patients.
Several sources contacted by The Dominion Post said they were unaware of any such prohibitions in West Virginia code. A bill introduced last session, HB 3297, did not see a committee agenda.
HB 3297 began with a statement of legislative findings: “West Virginia currently does not have protections for those persons undergoing medical procedures to refuse to have those procedures observed by residents and medical students at the hospital. The Legislature finds that the sanctity and safety of patients undergoing medical procedures is of great importance, particularly when patients are undergoing intimate procedures, or procedures that involve patient nudity.”
The proposed legislation consisted of just two sentences: “Patients may refuse residents and medical students from observing or performing medical care on them. Each hospital shall implement a policy to ensure that patients are informed of their right to refuse such observations.”
WVU operates the state’s largest medical school and referred questions on this to WVU Medicine, which said, “The physicians understand the sensitivity of the issue and only perform the examination as part of the actual procedure by the physician, to understand the anatomy for the procedure and get the best result for the patient. Medical students only perform pelvic examinations in the clinic under the supervision of a physician with patient consent. … Our physicians do not perform procedures on patients without written consent unless emergent in nature.”
A report in Colorado Politics on the progress of the Colorado bill — HB23-1077, Informed Consent To Intimate Patient Examinations — says research shows intimate exams often occur on sedated patients as a way for medical students to practice. A 2019 survey of students from seven American medical schools found that 92% of medical students had performed a pelvic exam on an unconscious female patient, of which 61% said they did not have explicit consent from the patient.
CP said that at the University of Oklahoma, a majority of medical students had performed pelvic exams on unconscious women and nearly 75% of the patients did not consent to the exam. Among medical students in Philadelphia, 90% said they’d performed pelvic exams on unconscious women and they weren’t sure if the women consented.
California, New York and Texas are among the states outlawing such exams, CP said, citing the Epstein Health Law and Policy Program. The American Medical Association has also explicitly disavowed the practice.
The Associated Press reported that proponents “see the Colorado bill as a model we hope other states will pass,” said Elizabeth Newman, public policy director at the Colorado Coalition Against Sexual Assault, which testified in favor of the legislation.
But opponents of the various bills and laws, who are often doctors, argue it’s government overreach which could compromise the established trust between patient and provider and should instead be left to recommendations from medical associations.
Typically, a patient signs a number of forms giving broad consent for a range of procedures that might be medically necessary while someone is anesthetized. That can also include consent for educational
purposes.
“Most folks just sign them and assume they are going to get the care that they need,” said Colorado Democratic Rep. Jenny Willford, who co-sponsored the bill.
But patients often don’t know they were examined while unconscious, and if they do, they may fear coming forward, Newman said. And medical students who could report it are often afraid to raise concerns with superiors who have power over their careers.
Colorado’s bill would require an informed consent process, as well as ensure that the pelvic, breast, rectal or prostate exam is within the scope of the treatment. While this would be required even without students, practitioners are excepted from the consent process in emergency situations.
The bill says a student or trainee may perform an intimate examination on a sedated or unconscious patient for educational or training purposes only if the examination is related to the planned procedure to be performed on the patient; the patient recognizes the student or trainee as part of the patient’s care team; and the student or trainee is under the direct supervision of the supervising licensee.
The bill goes beyond others across the U.S. to include whistleblower protections for medical students who want to speak out, as well as liability for doctors and hospitals if they don’t follow the consent rules. It’s also unique in the requirement that the involved students would be named on the consent form, and be introduced to the patient prior to the procedure.
Kayte Spector-Bagdady, a clinical ethicist, said Colorado’s proposal is the broadest she’s seen and worries that listing the names of involved students could limit learning opportunities. Getting consent is typically done days or weeks ahead of time, but students may be unavailable on the day of the procedure — and Colorado’s proposed law wouldn’t allow others to step in and learn, she said.
“We want people to generally know how to take care of women, and (these exams are) a critical component of that,” said Spector-Bagdady, who co-authored a 2019 recommendation by the Association of Professors of Gynecology and Obstetrics for such exams. “It’s a balance of respecting the autonomy of our patients and ensuring that the next time they go see a doctor, that doctor knows how to care for them properly.”
The West Virginia Hospital Association referred questions on the topic to a representative of the West Virginia Chapter of the American College of Obstetrics and Gynecology, who could not be reached for comment.
The APGO’s 2019 recommendation, endorsed by major obstetric and gynecological professional associations, parallels the Colorado legislation. It says the exam must be explicitly consented to; related to the planned procedure; performed by a student who is recognized by the patient as a part of their care team; and done under direct supervision by the educator.
Newman said the mandates are important not only for patients to give complete informed consent, but for medical students to know that the client has given their consent and to learn the rules governing the consent process.
