Consent. Examined while unconscious

• Author: Lorelei Laird
• Pages: 20-21

20

ABA JOURNAL | SEPTEMBER–OCTOBER 2019

National Pulse | CONSENT

shley Weitz didn’t expect a pel-

vic exam when she went to the

emergency room for uncon-

trolled vomiting.

It was 2007, and the doctors in

the Utah emergency room couldn’t tell

what was wrong, despite multiple tests.

The attending physician was trying

to discharge Weitz when she vomited

again. Instead, he gave her Phenergan,

a drug they’d been hoping to avoid be-

cause it has a powerful sedative effect.

She passed out.

She woke up screaming, with her feet

in stirrups and the doctor’s hand in her

vagina. The doctor was looking for signs

of a sexually transmitted infection, but

Weitz, who says she was a “really good

23-year-old Mormon girl ” at the ti me,

had insisted that it wasn’t possible. He

did the exam anyway—and he didn’t

ask for permission.

That’s how Weitz ended up test-

ifying before the Utah Senate earlier

this year in favor of a bill that forbids

medical examination of pelvic areas

without the patient’s express consent.

“I am a survivor of childhood

sexual abuse. And some of the

discussion during committee hearings

on this in Utah included the question

‘Is this assault?’ ” says Weitz, now

in her mid-30s and an advocate for

trauma survivors. “I can tell you from

experience that it absolutely triggered

my past and itself was a violation.”

The Utah bill passed—and so did a

similar bill in Maryland. Other such bills

were introduced this year in Connecticut,

Massachusetts, New Hampshire and New

York. All of them are aimed at stopping

the practice of performing pelvic exams

on unconscious women, often by medical

students learning the exams. Having

students involved in care is routine at

teaching hospitals, and patients are

typically told students will be involved in

their care. Pelvic exams under anesthesia

are considered a great training tool, since

conscious patients may tense up and

make the area harder to feel.

But some institutions don’t obtain fully

informed consent for the procedures—

they don’t ask at all, believing it’s enough

to say students might be involved in the

care, or they put it in the form but don’t

call attention to it. And patients knocked

out for surgery may not even know what

happened to their bodies. As Weitz

notes, that makes the practice seem

more like a sexual assault than a form

of medical education.

Proponents say the bills are necessary

to stop doctors from glossing over the

“informed” part of informed consent,

the legal standard for medical treatment,

and make sure patients have control over

what happens to their own bodies. But

the Connecticut and New Hampshire

bills failed, in part, thanks to opponents

who say the concerns are exaggerated

and the proposed laws would regulate

doctor-patient relationships so closely

that they could inadvertently stop doctors

from providing necessary care.

“It seems like it should be an

easy question to resolve. Women are

performing a valuable service,” says

professor Robin Fretwell Wilson of the

University of Illinois College of Law,

who has followed the issue for many

years. “But the question is whether

you should have to ask, and I think the

answer is ‘yes.’ ”

Who’s affected?

Informed consent is a cornerstone of

medical ethics and codied by state laws.

Failing to get it can be grounds for a

personal injury lawsuit, not to mention

professional discipline from state medical

regulators. In extreme cases, it can even

be the basis of criminal battery charges.

CONSENT

Examined While

Unconscious

Informed consent requirements are before state legislatures

due to an uproar about pelvic exams performed under anesthesia

BY LORELEI LAIRD

Photo by Zinkevych/Getty Images

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