November 28, 2023
A new Pennsylvania law will require medical facilities to obtain written and verbal consent from patients before performing pelvic, prostate and rectal exams on them while they are unconscious.
The bill signed Monday by Gov. Josh Shapiro makes Pennsylvania one of at least 20 states to adopt consent requirements for these exams, which are sometimes done to give medical students training opportunities on patients who are under anesthesia. In many instances, the exams are not medically necessary and the patient may be unaware that they have occurred.
"Such exams were labeled learning opportunities for students. However, unconscious, non-consenting women are no one's learning opportunity," state Rep. Liz Hanbidge, a Democrat from Montgomery County, said at a news conference. "If a coherent person declines a pelvic, prostate or rectal exam, one would not be performed. Their response would not be open to interpretation and people under anesthesia deserve the exact same respect."
Hanbidge and state Rep. Elizabeth Fiedler, who co-sponsored the legislation, had been pushing for support in Harrisburg since they introduced the bill in 2019. The new law takes effect Jan. 19.
"It’s never been more important to empower patients to make decisions about their own bodies and lives," Fiedler said.
Pelvic exams require physicians and medical students to physically inspect sensitive body parts using their fingers. They are often done in the offices of specialists, who perform the exams on consenting patients who are awake. In other medical settings, practitioners have viewed performing exams on unconscious patients as a relatively commonplace training procedure.
But in recent years, a wave of states have passed laws requiring informed consent for these exams based on increased scrutiny of the medical ethics of conducting them on unsuspecting patients — most often women.
In 2020, The New York Times examined the emerging shift against the practice among some doctors who were unnerved by their own training experiences in years past. One of the leading figures to reveal how common the exams were was Dr. Ari Silver-Isenstadt, a Maryland pediatrician who attended medical school at the University of Pennsylvania three decades ago.
Silver-Isenstadt was entering a gynecological clerkship and had been advised by a friend that he would likely be expected to perform pelvic exams on unconscious women. He reportedly discussed the matter with his wife and decided to intentionally show up late for gynecological operations, missing the portions of appointments when he might have been asked to do the exams.
Within weeks, Silver-Isenstadt was reported to the dean of the medical school, who agreed to exempt him from completing the exams on anesthetized patients. But Silver-Isenstadt spent the ensuing years gathering data on the practice. He co-authored a 2003 study published in the American Journal of Obstetrics and Gynecology that used surveys of about 400 medical students in Pennsylvania. The study found that 90% of those surveyed had done pelvic exams on unconscious patients.
Sometimes, patient paperwork requires people to sign consent waivers for a variety of procedures that may be medically necessary while under anesthesia. The paperwork may include consent for educational exams that are medically unnecessary.
Fiedler's attention to the issue was sparked by a constituent, Keren Sofer, who approached her about an exam she suspected was performed on her without consent.
“Secrecy, lack of transparency and the subsequent justification for it should never be a part of a person’s medical care,” Sofer said ahead of Shapiro's signing of the law. “A patient’s explicit consent protects patients, doctors and medical students. This is a practice which, despite being condemned by American professional medical associations, is shockingly still occurring across the Commonwealth."
Fiedler and Hanbidge pointed to a recent a study in the Journal of Surgical Education that found 75% of medical students at the University of Pittsburgh School of Medicine supported requiring patient consent for pelvic exams.
Hanbidge said some hospitals in Montgomery County had already prohibited such exams without consent from patients. The new law ensures that all medical facilities in the state must obtain consent from patients.
"Patients' humanity is not tied to their consciousness, and unconscious persons should never be viewed as merely an object for learning," Hanbidge said. "Now, under Pennsylvania law, patients have the right to choose or refuse consent for such examinations to be performed for non-emergent teaching purposes."