Wednesday, December 19, 2018

Pelvic Exams of Unconscious Women: Legal in Most States?

by Sherry F. Colb

In my Verdict column for this week, I discuss the Larry Nassar case and why a doctor was able to sexually abuse his patients with impunity. I propose that the answer might have something to do with the status that doctors occupy in our society. In this post, I want to extend that idea--that doctors occupy a kind of benevolent authoritarian status in our society--to a different kind of abuse, one that is apparently far more widespread than even Larry Nassar's sexual predation.

I had heard about it before but then allowed it to slip my mind. Then the NPR program, "This American Life," brought it back. The show recently featured a story about a very disturbing phenomenon. It seems that young doctors, learning their craft, have routinely performed pelvic exams on unconscious female patients under general anesthesia. According to this story, these exams are not only quite common but are actually legal in most of the country. In this post, I want to consider the meaning of the exams themselves and of their perceived legality, a perception that I would contest.
A few doctors who spoke to TAL reporters described their experiences as medical students. They performed pelvic exams on unconscious women, women who had nothing to gain from undergoing the penetration of their vaginas with a medical students' probing, unwanted fingers. It appears that no one even tried to argue that the medical students were penetrating these patients for their own good. The exam played no role in the women's surgeries and had no role to play in the diagnosis or treatment of any suspected illness. What was the goal? The medical students would be learning, on someone who could not complain or resist, how to do a pelvic exam.

One male doctor spoke of having felt somewhat uncomfortable about the pelvic exams he had performed under these conditions, and he eventually stopped doing them. His superior, a doctor with much more experience (including, presumably, lots of experience forcing himself into the vaginas of unconscious women) seemed to think that this use of female patients' bodies without their knowledge or consent was just fine. But sometimes one's "superiors" are wrong. To take a lesson from the Milgram experiment, which I discuss in my column, sometimes we should not just follow orders.

Interestingly, a different doctor, this one female (the sister of the first one), really had no problem at the time with performing forcible vaginal exams on patients. She was there to learn, and her supervisor had told her to do it. Perhaps she figured that the patients did not suffer any setback in their welfare, because they did not know. If so, she had plainly failed to put herself in the shoes of her patients. She had probably never asked herself how she would feel upon learning that medical students had given her an unwanted pelvic exam. Now, upon facing the question, she expressed embarrassment at having felt fine about what she did as a medical student without ever questioning it.

Before I explain why people imagine that this behavior is legal, let me explain why I compare it to rape. I compare it to rape because it is rape. If someone were to take a big metal instrument and insert it into a non-consenting victim's vagina, we would describe the perpetrator as having raped the victim with the big metal instrument. Statutes might describe it, relatedly, as "aggravated sexual abuse." For similar reasons, when a group of apparently racist police officers shoved a splintered broomstick into the rectum of a Haitian immigrant at a police station, people spoke of the officers' having sodomized their victim with the broomstick.

One need not feel sexually aroused in order to be guilty of rape with one's fingers (aggravated sexual abuse). Once we recognize this fact, we can appreciate the reality that medical students use their fingers to rape their patients when they perform pelvic exams on patients who neither need nor agreed to such an exam. Doctors who tell their students to carry out such "educational" exams are even more culpable than their students. That their motive is educational rather than sexual is irrelevant to how reprehensible the conduct is.

Why, then, do doctors--and apparently the producers of TAL--believe that the exams in question are legal in most states? Do most states allow people to rape other people with their fingers so long as the victims are unconscious at the time? On the contrary, the very fact that a person is unconscious renders the act of penetration a rape, notwithstanding the absence of any need to overcome resistance. The relevant part of the first-degree rape section of New York law, for example, says that "[a] person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person... [by forcible compulsion or] [w]ho is incapable of consent by reason of being physically helpless." 
A victim's unconsciousness is one form of helplessness; it is the opposite of exonerating.

Yet the statute (and perhaps others like it) contains a couple of interesting exemptions. One excludes from the offense a case in which there is a valid medical purpose. Another states that for someone accused of a lesser degree of sexual assault, an exemption applies even when there is no valid medical purpose if the person consents. Using a live woman to practice penetrating patients, however, resembles human experimentation far more than it does pursuing a valid medical purpose.

The exceptions should have no application here, because educating medical students is not a valid medical purpose, as it fulfills no patient need, and an unconscious victim places the crime into a higher category in which consent to pointless intrusions offers no defense.  We would have to look more closely at New York law to determine the precise interaction between using one's fingers (rather than one's penis) to commit rape (or "aggravated sexual abuse"), on the one hand, and application of the medical defenses, on the other. Still, it would seem challenging to claim that forcibly inserting one's fingers into a non-consenting and unconscious patient is medically appropriate.

Those who say that what the doctors have been doing is legal, that it is something other than a sexual assault on a vulnerable victim, cite the consent form that patients sign when they go into surgery. Like the Terms and Conditions on electronics service contracts, the "informed consent" that patients sign before surgery can be long, complicated, and sometimes almost impossible to understand (even assuming that patients have an opportunity to actually read it). Among the terms of the consent form, it seems, in many states, is one that tells the patient that there might be medical students participating on the doctors' surgical team. This vague revelation, people apparently have concluded, represents consent to gratuitous penetration, sufficient to preclude criminal prosecution. As of earlier this year, only five states had explicitly changed this state of affairs.

Something is wrong with this picture. First, a vague agreement to have medical students be part of the "treatment team" does not, in any rational analysis, count as consent to have a medical student (or, sometimes, several medical students) stuff their fingers into an unconscious patient's vagina as "practice" for future pelvic exams. If it is, then why don't medical students remove the patient's large intestines and unravel them or cut out the appendix and return it? Once we are treating the patient as a blow-up doll for medical students, why not just lengthen the surgery by an hour and learn what it feels like to hold each of the different organs in one's hand?

Here is what one doctor had to say on the matter:
That [performing nonconsensual pelvic exams on unconscious patients] was my experience as well. It's suprising [sic] how worked up some people get over the issue. You will be naked on a brightly lit table for all to see. A medical student will put a tube into your bladder. We're about to flay your belly open and remove your uterus and ovaries. But to do a pelvic exam! What a violation! 
If you get into this habit of being deathly afraid of the patient's feelings about an internal exam you will never learn how. I'm not saying that you should be a jerk about it, but you owe it to your future patients to get some idea of what stuff feels like.

The doctor is here confessing to having, as a student, digitally raped his patients, but he is far from contrite. He instead mocks the patients for being so ridiculous as to believe, had they known of his assaults, that he had violated them. After all, once you are cutting open a patient and doing other things to infringe upon her bodily integrity for the sake of her health (maybe), you ought to be able to do whatever you like so you can "get some idea of what stuff feels like." 

Classy guy.

Doctors and their obedient medical students have digitally raped patients with impunity and will continue to do so in almost every state. Many apparently feel no shame about it and believe they are entitled to continue doing it. And we seemingly ratify this feeling with an implicit "medical students' education" exemption from the rape laws, one that treats what amounts to a service agreement as true consent to educational rape.

As I suggest in my column, I believe that we elevate doctors to a special status in our society, one that enjoys exemption from the ordinary rules. I propose that Larry Nassar's ability to get away with his crimes had much to do with the ways in which we defer to doctors and treat what they say as the final word, despite our misgivings. In the case of medical students' digital rape of patients--at their culpable supervisors' urgings--we once again encounter doctors who apparently feel no moral qualms and no fear of punishment in contemplating what most of us regard as an extremely serious crime against the person.

If anything comes out of this blog post (in combination with the associated column), I hope it will be a greater willingness to judge the actions and statements of doctors. When they tell you that you need triple-bypass surgery, ask yourself why they said nothing about what you eat, whether perhaps the advice has more to do with what insurance will reimburse (or the doctor's limited knowledge) than it does with what is in your actual best interests. When they tell you that what they are doing "for" you is helpful, ask yourself whether you actually feel better, the same, or worse in response to the treatment. When they seem to be abusing a patient you know, ask the patient what is going on, and believe what he tells you. And when you go into surgery, tell him and nurses and the ombudsman in charge, and put in your chart as well, that you expressly refuse permission to any medical student to do a pelvic or other unnecessary exam. And finally, if you are a prosecutor, try to persuade a court that prosecuting doctors that order these non-consensual pelvic exams is consistent with the law of aggravated sexual abuse or the equivalent. Argue that the most natural reading of the rape statutes is to apply them to nonconsensual exams.

I do not mean to suggest that you can never place your trust in a doctor. You can, of course. But to quote a phrase of which Ronald Reagan became fond in describing his relationship with Mikhail Gorbachev, "Trust, but verify." Even as a hospital patient, you remain an individual with a right to autonomy, bodily integrity, and freedom from sexual assault.


David Ricardo said...

These actions are an unspeakable abomination, something out of Nazi medical experimentation.

Thanks for bringing this to our attention, who could have imagined such a thing.

barcrunchsub said...

I didn’t hear the podcast, but did the doctors also digitally penetrate unconscious men’s anuses without consent as well? Shouldn’t medical students learn what their ‘“stuff” (say prostate) feels like too? If not, it seems the sexual motivation becomes easier to infer.
I’m against any digital penetration without consent, and If it did happen to men too it should stop.
Were any women doctors interviewed who actually defended toe practice?

Samuel Rickless said...

This is definitely and undoubtedly rape. And you are right in your column to point to the fact that there is unthinking deferral to doctors, on the presumption that their job is to benefit us and that they know far more than we do about what is good for our physical health. Your answer is, in part, to #QuestionDoctors. But I wonder whether that advice is too general. I am also concerned that it does not get at the root of the problem.

1. Doctors now routinely deal with patients who claim to know more than the doctors do. Patients read stuff on the internet and self-diagnose, to their own detriment. The last thing we want to do is to encourage patients to question their doctors' *medical judgments*. That way lies the anti-vaccination insanity, homeopathy, and snake oil. In your column, you suggest questioning a doctor about the need for a medical procedure. Perhaps changing diet will do the trick. I am not disagreeing with the suggestion that patients be encouraged to ask questions of their doctors, and I am not disagreeing with the suggestion (that goes beyond what you explicitly said) that it is good to get a second medical opinion from a doctor. But if we ask questions as patients, we also need to be prepared for a certain level of deference to the doctors' answers. If we question the doctors' *answers*, then we are well on the road to overriding their professional judgments, which would be bad for everyone.

2. The root of the problem is the consequentialist/utilitarian approach that is rife in the medical world, combined with what I think of as expertise-based arrogance. Consequentialism is everyone in medicine, particularly in its history (think of the Tuskegee syphilis "experiment" or forced sterilization). This needs to be faced head-on, even now. And the way to do it is to bring non-consequentialism into medical schools, by training doctors to think as non-consequentialists. One of the problems here, I think, is that consequentialism is the unthinking person's initial approach to moral matters. And this default assumption will remain in the minds of doctors who have not been trained to think about ethics from a non-consequentialist perspective. Legal requirements that embody non-consequentialist assumptions will be seen as external constraints, rather than internal requirements to the profession, and will be resisted. The other problem here is that, as experts in their field, doctors tend to transfer their sense of knowingness to other matters, including matters about which they know considerably less than, say, moral philosophers. So, as part of medical training, we need to teach medical students humility about *moral* knowledge. We also need to teach them to defer to some degree to *moral* professionals.

David Ricardo said...

A major reason that patient s want to substitute their opinion for medical opinions is the reprehensible actions of the drug companies telling them to do so.

Greg said...

I'll make an additional point that is irrelevant to the rape discussion here, but is relevant to some of the concerns raised in the original post.

At the risk of addressing a hostile audience, one unfortunate additional thing that often drives doctors' actions is a fear of lawsuits. Actions that serve little purpose besides reducing the risk of lawsuits are pervasive throughout the medical profession. Insurance companies, hospitals, and sometimes doctors themselves often drive patient-hostile decisions because doing so protects the medical practitioner from either the patient or the patient's family. Hospital ethics boards are supposed to help with this somewhat, but often the patient-hostile actions become standard medical practice. Procedures around DNRs are one area where the wishes of the patient are routinely ignored. Most typically this is due to the physicians deferring to the wishes of family above those of the patient, but sometimes it happens in other scenarios as well, such as the story shared by Prof. Colb.

Getting back to the primary issue, I also agree with everything Samuel Rickless said, and I think he brings up two important points. While there are good reasons we teach medical providers to be consequentialists in certain situations (like emergency triage,) medical providers need a more broad understanding of moral ethics to apply in other situations.

A lot more could also be said about the expertise-based arrogance issue as well.

Sherry F. Colb said...

Thanks for all of the interesting and thoughtful comments! I believe doctors do rectal examinations on male surgical patients as well. I do not know whether it happens with the same frequency, given that doctors may acquire less diagnostic information from a rectal exam. On the points about internet medical knowledge and consequentialism, I have a few thoughts. First, people do need to be careful and critical in their acquisition of medical knowledge from the internet, from friends, from anecdotal experiences (I once drank rooibos tea with ginger and got through the winter without getting sick, so....). The need to be careful, however, is consistent with approaching one's doctor's pronouncements with a critical ear as well. Doctors have said the darnedest things to me and to members of my family, not just about values but about facts, and a willingness to question their statements is a crucial part of being an informed consumer of medical care. As to consequentialism, I think that attributing this moral theory to the medical students who perform--and medical doctors who order the performance of--digital rape on their patients gives too much credit to the medical students and doctors. People who do what they need to do --in settings in which their crimes are unlikely to be detected--are behaving like narcissists who prioritize their own ascent over the interests and inviolability of their patients. Maybe they also argue that they have to commit these rapes in order to learn, but the argument is so stupid that it can only be the product of a mind failing to even put in the effort to come up with something a bit more plausible. I believe that some doctors are very fine people, but the esteem in which doctors are held (coupled with the perverse incentives of our health care system) produces professional amorality, not consequentialism. I once expressed impatience with an ER doctor treating my mother. A nurse ran over and started yelling at me, "You're talking to a DOCTOR!" to which I responded, quietly, "And you're talking to a lawyer."

Speaking of lawyers, doctors' misconduct has very little to do with malpractice liability. Every test and every procedure triggers compensation by insurance, and that compensation drives doctors to order tests and procedures. If doctors were actually concerned, as a group, with avoiding malpractice suits, they would probably try to minimize the number of patients dying in the doctors' care. Yet doctors in hospitals routinely skip the hand santizer and skip the handwashing. As a result, about 100,000 Americans die every year from hospital-induced infections. Having a long talk with a patient increases the odds that a doctor will find out what's really going on, and it decreases the odds that the patient will sue. Yet doctors generally choose instead to spend a few minutes with the patient, sending other professionals to take vitals and interact with the patient, thereby squandering the opportunity to really take the measure of the patient. Once in with the patient, moreover, doctors typically type on their laptops the whole time and barely make eye contact. Compensation structure has a far greater effect on doctors than malpractice liability. Doctors like to say that malpractice liability is the problem, because it sounds better than saying that greed and self-worship are the problem, but the behavior belies the claim.