November 20, 2020
Informed consent has long been the cornerstone of professional ethics, and something that we as consumers of legal, medical, and other services generally demand. The desire for more consent within the healthcare context is not surprising in light of several recent scandals: Larry Nassar’s abuse of Olympic-athlete patients, doctors secretly inseminating IVF patients with their own semen, and medical students performing pelvic examinations on unconscious women for educational purposes. In an effort to prevent such unwanted bodily intrusion, the Florida Legislature recently passed Senate Bill 698 (now Fla. Stat. s. 456.51), which seems to require all medical practitioners to obtain written consent before any pelvic examination. While the Florida legislature clearly had good intentions, the bill itself took on a broader scope than was originally intended, leaving OB/GYN doctors, pediatricians, and other medical specialists in the dark about what the law actually means. Moreover, medical professionals feared that the bill will unduly interfere with patient—doctor relationships and “hold women’s health care to a different standard than other care.” Thankfully, the Board of Medicine’s recent clarifying declaratory statements about the bill may have quelled some of these uncertainties and fears.
The contents of SB 698 originated in a previously proposed bill, SB 1470. Under this bill, a health care provider would not be able to perform a pelvic examination on an anesthetized or unconscious patient, unless he or she obtained written consent from the patient or the patient’s representative. The term “pelvic examination” in this context was defined as a medical examination requiring contact with a patient’s sexual organs. According to Jeff Scott, General Counsel for the Florida Medical Association, the language of the bill clearly indicated that its original purpose was to prevent non-consensual pelvic examinations while female patients were under anesthesia. Even after the concept for the new statute was moved into SB 698, the Senate Criminal Justice Committee noted that medical students around the country have been known to perform pelvic examinations on unconscious women for educational purposes. However, during the last week of the legislative session, the Florida House of Representatives suddenly amended the bill without consulting with the FMA or other medical organizations.
The finalized bill redefined a “pelvic examination” as:
the series of tasks that comprise an examination of the vagina, cervix, uterus, fallopian tubes, ovaries, rectum, or external pelvic tissue or organs using any combination of modalities, which may include, but need not be limited to, the health care provider’s gloved hand or instrumentation.
This by itself considerably broadened the scope of the law, seemingly encompassing not only “traditional” female pelvic exams, but also male rectal examinations, hernia examinations, surgery on the pelvic area, and visual examinations of external tissue, which many doctors would not consider to be pelvic exams. The bill also broadened the circumstances in which consent is required, stating that any health care practitioner may not perform any “pelvic examination” without written consent—regardless of whether the patient is conscious—absent a court order or medical necessity.
Without further guidance, Jeff Scott argued, the bill’s broad language would require doctors to obtain written consent even when doing so would be superfluous; i.e., if the patient’s sole purpose of visiting the doctor is to obtain the pelvic exam, when inserting a catheter, or before merely visually examining an infant for diaper rash. Further, the bill does not specify what consequences a practitioner might face for failing to obtain a patient’s consent before conducting a pelvic examination. In response, the Florida Medical Association, along with the Florida Academy of Family Physicians, the Florida Chapter of the American Academy of Pediatrics, the Florida Chapter of the American College of Physicians, and the Florida Society of Dermatologists and Dermatological Surgeons, sought declaratory statements from the Florida Board of Medicine clarifying that:
- doctors do not have to obtain written consent of male patients prior to genital or rectal examinations;
- doctors do not need to obtain written consent when performing surgical procedures, when touching the listed tissues or organs for diagnostic purposes (such as inserting a catheter, rectal wound care, rectal temperature readings, or cleansing area after diaper change), or touching such tissue or organs as part of a diagnostic procedure of other tissues or organs not involving those listed;
- one written consent form may cover additional examinations during the same course of treatment;
- written consent is not needed for mere visual examinations without physical contact with the listed bodily tissues or organs (ie when examining a rash, wound, or anomaly on an exterior tissue or organ)
- consent is not needed in cases where a pelvic exam is medically necessary and where the doctor enters a note in the patient’s medical record indicating the reasons for the exception and why the doctor could not obtain written consent.
On August 7, a month after the new law went into effect, the Board of Medicine finally considered the bill’s vagueness and passed several motions affirming portions of the FMA’s petition. While the Board’s Counsel, Edward Telleceha cautioned that the Board had no authority to change the law, the Board ultimately agreed that based on the language of the bill and the legislature’s intent:
- the new legislation clearly only referred to female patients;
- consent is not need when performing pelvic examinations for non-diagnostic reasons; and
- consent is not needed where the examination is only visual, and there is no physical contact with any of the parts of the anatomy included in the definition of “pelvic examination.”
As for the remaining clarifications sought by the FMA’s petition (such as whether one consent form may be used to authorize additional pelvic examinations during the same course of treatment), the Board concluded it did not have the authority to answer those questions. These findings are to be finalized during the next board meeting in October.
Thankfully for many medical practitioners, the Board of Medicine was able to clarify some points of confusion about the new law. However, since the legislature is ultimately the only governing body that can change the law or make further clarifications, practitioners should be wary of whether they need to obtain written consent from their patients, even during routine checkups and visits. For the time being, practitioners should err on the side of caution and provide patients with new consent forms each and every time they conduct a “pelvic examination.”
Turner O’Connor Kozlowski, P.L., can help you navigate the consent maze. Call (352) 372-4263 for more information.
