Most people don’t realize that New Jersey has a law prohibiting pelvic and other exams of intimate areas while a patient is under anesthesia without their informed consent if that exam is unrelated to the procedure they’re undergoing. Likely, most people aren’t aware that this is even a risk that they would otherwise need to be concerned about.
Unfortunately, surgeons have sometimes used the opportunity of having a patient under sedation to train aspiring doctors and nurses to perform these procedures. That’s why New Jersey and a number of other states have taken steps to prevent this practice.
New Jersey lawmakers said, “Consent to a medical procedure involving anesthesia does not automatically include consent for other non-essential medical activities….” Doctors who violate the law can be disciplined for professional misconduct.
New guidance issued this month
Now the federal government has taken an important step to require that hospitals get this informed written consent to such exams throughout the country. This month, the U.S. Department of Health and Human Services (HHS) issued guidance that requires this consent for any breast, pelvic, rectal and prostate exams for “educational and training purposes”
The department has had some guidance already for hospitals, but it hasn’t been this clear or specific. The new guidance was reiterated by HHS Secretary Xavier Becerra in a letter to medical schools and teaching hospitals.
While most hospitals throughout the country have always had broad language in their surgical consent forms that would allow them to perform these exams purely for training purposes, these individual state laws and now this new federal guidance require more specific language.
Potential consequences for defying the guidance
Hospitals that fail to comply with this new guidance could lose their Medicare and Medicaid funding and also potentially face fines. They could also face investigations, which of course, can lead to discovery of other wrongdoing.
While it may not be medical malpractice in the sense that most people think of it, performing an invasive exam with no medical benefit to a patient – without their consent and while they’re under anesthesia – is certainly an invasion of their privacy. Learning that it was done can be highly distressing. Further, some exams, if not correctly done, can result in harm. It’s crucial for patients to know their rights and what their options are if those rights were violated – particularly if they suffered harm as a result of ill-advised (and possibly illegal) practices.