When patients sign consent forms prior to surgery, they often don’t read the fine print. Even if they do, they can’t imagine every scenario that would fall under the things to which they’ve given their consent. In some cases, these might involve undefined procedures and exams for “educational and training purposes,” particularly at teaching hospitals.
These procedures sometimes included exams of “intimate” areas that had nothing to do with the surgical procedure the patient was undergoing. As doctors and nurses in training started speaking up about their discomfort in doing these exams on patients under anesthesia, lawmakers took note.
Some states, including New Jersey, enacted laws prohibiting pelvic, prostate and other intimate exams medically unnecessary for the procedure a patient is undergoing without their prior informed consent. Doctors who violate the law by telling a student or someone else who reports to them to do an exam can face disciplinary action for professional misconduct.
What’s in the guidance from HHS?
Now the Biden administration is taking steps to help make patients across the country equally safe from being subjected to these invasive exams without their informed written consent. U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra recently sent a letter to teaching hospitals and medical schools throughout the U.S. informing them that any breast, pelvic, prostate and rectal exams done for educational and training purposes must have that consent.
The consent form must include clear language stating what kind of exams a patient is agreeing to if they do. Hospitals that don’t comply with the guidance risk fines, investigations and – probably most significantly – loss of their Medicare and Medicaid funding.
The potential effect of such exams on patients
An invasive and medically unnecessary exam at a time when a patient is sedated or completely anesthetized may not amount to medical malpractice in the traditional sense. However, a patient certainly could suffer physical harm if it’s done by someone who’s just learning. These exams are typically done when patients are awake, so they can speak up if they’re in pain. Further, finding out that it happened without their knowledge can be traumatic for some patients. At the very least, it’s an invasion of privacy and a breach of trust.
It’s important for patients to know their rights and explore their options if a doctor or other medical professional violated those rights. Getting legal guidance can help.
