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“Women feel almost universally that pelvic examinations that are conducted by medical students while the woman is anesthetized should occur only after the woman has given her permission to the students’ supervisors. There is evidence, however, that a substantial percentage of medical students do not feel that obtaining such consent is important.” — “Don’t Ask, Don’t Tell,” American Journal of Obstetrics and Gynecology,February 2003. Informed consent is a bedrock principle of medical care today. That means it’s the patients’ call, not the doctors’, about which procedures get performed. At one end of the moral spectrum (probably the vast majority of cases), it’s a bothersome formality — “Yes, doctor, I dowant you to fix my broken leg.” But at the other extreme, it’s a hallmark of civilization. The failure to get consent is part of the reason that the Tuskegee syphilis experiments are synonymous with evil. So when you read in a bona fide medical journal something that sounds like a story from Annals of Your Worst Nightmares,it’s easy to be outraged. There’s a valid question about whether that outrage is justified. But there’s also a lesson here for the medical world to think about. The sort of — what? paternalism? insensitivity? arrogance? — that these pelvic examinations seem to illustrate plays right into the classic stereotype that doctors can be, well, paternalistic, insensitive, and arrogant. That’s an especially acute point to consider as Congress moves to cap liability awards in medical cases. If doctors can do something to change their poor public image — and the reality that sometimes underlies it — everyone would benefit. Here’s what’s going on: Teaching hospitals need to teach medical students to perform pelvic exams on women. For decades, they’ve accomplished that, at least in part, by having medical students examine patients who have been anesthetized to undergo necessary gynecological procedures. (Medical schools also use conscious consenting patients, paid volunteers, and mannequins.) The attending physician, before starting the procedure, usually performs an exam to gauge the woman’s condition. Then a medical student does the same thing. And then the physician starts the procedure. The patient has usually signed a general consent form giving permission for medical students to participate in her care. She usually hasn’t given any specific consent, or received any specific notice, that students will do their own exams after the doctor’s. HERE AND NOW These practices aren’t just from the past. Dr. John Larsen, director of the division of maternal-fetal medicine at George Washington University Medical Center, says that he does not receive specific consent for medical students to perform pelvic exams on anesthetized women, aside from the general consent to medical students’ participation in patients’ care. Dr. Anthony Scialli, a professor in the department of obstetrics and gynecology at Georgetown University Medical Center, says that he does not seek separate or specialized consent for such exams, either. Doctors at other teaching hospitals, such as Harvard and the University of Pennsylvania, have in recent years changed their policies to get that sort of consent. The “Don’t Ask, Don’t Tell” article in the medical journal focuses on moral and teaching issues that stem from a lack of consent. But there might also be legal issues worth thinking about. An unconsented penetration of an unconscious woman’s vagina? That might sound like some sort of rape. Actually, it’s not. In Washington, D.C., for instance, all the “sexual abuse” crimes (including the “sexual abuse of a patient or client” crimes) require a person to force another to engage in or submit to a “sexual act” or “sexual conduct.” And both those terms require “an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” New York state law, to give another example, defines “sexual intercourse” by its “ordinary meaning,” and “sexual contact” as being for the purpose of “gratifying sexual desire.” We can pretty quickly and definitively establish that none of that is happening here. But penal codes aren’t the only law around. There’s also tort law. And it’s pretty well established that doctors who don’t want to get sued need to get their patients’ permission. Benjamin Cardozo, when he sat on the Court of Appeals of New York (before he sat on the U.S. Supreme Court), wrote in Schloendorff v. New York Hospital(1914) that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.” That general principle is still valid and still part of common law. There might not be any physical injury from these exams, but the psychological trauma of unconsented exams might be acute. As Jennifer Brown, legal director at the National Organization for Women Legal Defense and Education Fund, says, “I would be very interested to see what would happen if people who have been subjected to these examinations were to bring suit.” That doesn’t mean that they would win. Because it turns out that consent is actually one of the gray areas. Patients at teaching hospitals give somesort of consent to let medical students participate in their care. “I’m comfortable with the standard introduction and the general consent,” says George Washington’s Larsen. Once you have general consent, after all, what point does it serve to keep on getting extra consent for everything that goes on in the hospital? One possible answer is that the consent isn’t really informed. “There might be a sentence or two [in the consent forms] that says you will be interacting with medical students instead of just fellows, and the patients probably don’t know what half of those words mean,” says Dr. Peter Ubel, one of the authors of “Don’t Ask, Don’t Tell.” Another gray area is whether the exams that the medical students perform are for the benefit of the patient or the training of the student. Which is to say, the general consent form, even if valid to cover a student’s still-unpolished participation in necessary care, might not extend to activities done only for the student. Maybe the exams accomplish both purposes. Georgetown’s Scialli says: “With the exam at the time of surgery, the exam is part of the surgical procedure . . . . Students and residents participate in the entire procedure, including pre-surgery.” He adds, “Separating the exam from the remainder of the surgery is artificial.” Or maybe not. George Washington’s Larsen says that once you get to the scenario of two medical students performing separate exams, he can see where there might be concerns. An article in January’s British Medical Journalon the issue of consent and anesthetized patients states that “on many occasions more than one student examined the same patient.” It’s reasonable to suspect that the same might at least sometimes happen on this side of the Atlantic. DISCONTENT WITH DOCTORS So tort suits against hospitals, doctors, or medical students might not succeed. But some people might at least thinkabout suing. And, whether or not they follow through, that means they’re not happy with the current situation. It’s a situation that buttresses one strain of American discontent with doctors — the feeling that doctors tend to do what they think is best, without fully considering the patients’ wishes. That’s a feeling that resonates particularly strongly when it comes to women’s health issues. NOW Legal Defense Fund’s Brown says, “There’s a long history of physicians having extremely cavalier attitudes not just toward women generally, but particularly toward women’s reproductive functions and reproductive organs.” That history of cavalierness, with women’s health issues and more generally, is something that can have tangible consequences. One of the things that doctors have bitterly complained about over the past few decades is the rise in litigation against them. There are lots of reasons that people sue doctors — real negligence, lack of health insurance, inability to accept unavoidably bad medical outcomes, and, of course, simple greed. But there’s also probably a justified sense of frustration behind the wave of lawsuits. One solution to the problem of frustrated patients who keep their lawyer’s phone number on speed-dial is to treat the symptoms. That’s what the House of Representatives did last week — it passed a bill that severely limits the amount of money in pain and suffering, and in punitive damages, that plaintiffs can win in lawsuits against doctors and health care workers. The other approach is to treat the disease itself. Doctors can let patients know that they are trying to change, by at least stopping some of their most obviously questionable practices. Ubel, one of the “Don’t Ask, Don’t Tell” authors, says, “My bottom line is this: We need to do two things. Ask permission and make students know that we’ve asked permission.” He might have added a third goal: When doctors change, to make sure to let the rest of us know. Evan P. Schultz is associate opinion editor atLegal Times . His column, “Controversies & Cases,” appears every other week. He can be reached at [email protected].

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