As other states require consent for pelvic exams, Connecticut bill stalls

After Terry Tsang didn't get a response to letters he sent, he decided to attend a public forum to ask local legislators what happened with a bill that would've prohibited the practice of pelvic exams on anesthetized patients without their consent.

"I was horrified when I found out that things like that could be done to a woman while unconscious, while waiting for surgery," said Tsang, a Groton resident who has worked at Pfizer for more than 25 years. "First I thought it was fake news."

At the Groton Senior Center on June 26, Democratic Reps. Christine Conley, Joe de la Cruz, Kate Rotella and Anthony Nolan were taken aback. None of them had a memory of that bill.

An aide quickly confirmed why: After a public hearing on Feb. 4, the bill never made it out of the Public Health Committee, and none of those four is a member of the committee.

Sen. Heather Somers, R-Groton, wasn't invited to participate in that forum but is a ranking member of the Public Health Committee. She explained to The Day last week that the bill didn't progress largely because there was no evidence this practice is happening in Connecticut, making the measure something of a solution in search of a problem.

Hospitals say they already have policies in place for obtaining consent.

Perhaps because the bill didn't go anywhere, it didn't get any attention from Connecticut media. But the state was one of more than a dozen to introduce this kind of legislation this year, and the bans passed in Utah, Maryland and New York.

These states join California, Illinois, Virginia, Oregon, Hawaii and Iowa in banning nonconsensual pelvic exams. Those states respectively passed laws in 2003, 2004, 2007, 2011, 2012 and 2017.

Generally, the laws prohibit pelvic exams unless the patient has provided informed consent beforehand, or unless the exam is necessary for diagnostic or treatment purposes — as opposed to being merely a teaching tool for medical students.

Studies, stories drive action in other states

For a pelvic exam, a doctor or nurse slides one or two gloved fingers into the patient's vagina while using the other hand to press on the abdomen, checking for signs of an infection, cyst, tumor or other issue.

The University of Hawai'i at Mānoa's chancellor and medical school dean said in joint testimony in 2012 that a pelvic exam under anesthesia "is a superb learning experience, as the patient is fully relaxed and the intra-abdominal organs are easier to palpate."

They supported the intent of Hawaii's bill to require consent but wanted more clarity on how consent could be given.

Attorney John Kasprak wrote in a 2004 report for Connecticut's nonpartisan Office of Legislative Research, "Medical students, as part of their training, often are allowed by their training physicians to perform pelvic examinations in the operating room when the patient is unconscious and the patient has not given explicit consent to the examination."

He went on to say that many OB/GYN departments don't regularly inform women when they will be undergoing pelvic exams by medical students while anesthetized.

The OLR research report on nonconsensual pelvic examinations was next updated in January of this year. Principal Analyst Nicole Dube said she was unable to find information on how many teaching hospitals use this practice.

A 2003 study found that 90 percent of students at five Philadelphia-area medical schools reported performing the exams for educational purposes during their OB/GYN rotation, but the study was not clear on consent.

This past March, Ashley Weitz — a rape survivor, and survivor advocate — shared her experience with the Utah Health and Human Services Committee. She testified that in a Utah hospital emergency room in 2004, she woke up from deep sedation screaming as someone was performing a pelvic exam, one to which she did not consent.

"Had I been offered the opportunity to consent, had I been explained the risk and benefits of the exam and why it needed to be done, I likely would've consented," she said.

In 2012, then-medical student Shawn Barnes testified to the Hawaii House Committee on Judiciary that during his third-year OB/GYN clerkship, he was asked four to five times a day for three weeks to perform pelvic exams on anesthetized women, "without specific consent, solely for the purpose of my education."

He felt ashamed and raised concern, only to be told this was considered standard practice.

"A strange dichotomy seemed to exist between a culture of medicine that considered unconsented pelvic exams a non-issue, and those outside the world of medicine that seemed to have no idea the practice existed and were repulsed by the thought of it," he wrote.

Medical societies have opposed the practice of not requiring consent. The American Association of Medical Colleges called it "unethical and unacceptable. An opinion from the American Congress of Obstetricians and Gynecologists states that if an exam is performed solely for teaching purposes, "it should be performed only with her specific informed consent, obtained when she has full decision-making capacity."

Connecticut legislators voice concern over lack of evidence, redundancy

Sen. Gary Winfield, D-New Haven, and Rep. Josh Elliott, D-Hamden, introduced the bill this past January. Elliott said he wouldn't be the best person to talk to about the bill and Winfield couldn't be reached for comment.

Neither is on the Public Health Committee. Its co-chairs — Sen. Mary Daugherty Abrams, D-Meriden, and Rep. Jonathan Steinberg, D-Westport — did not respond to requests for comment.

In the Feb. 4 public hearing on the bill, Lucy Nolan of the Connecticut Alliance to End Sexual Violence wrote, "It is a disrespectful practice and assumes, arrogantly, that the medical profession's needs are more important than bodily autonomy of a woman, especially while she is at her most vulnerable."

Yale University School of Medicine's statement said there is "widespread agreement among obstetricians and gynecologists" that pelvic exams should not be performed on an anesthetized patient without consent, and that it is the school's practice to obtain consent at the preoperative visit. Yale recommended that the committee rely upon medical societies to set standards rather than enacting legislation.

"It is our practice to obtain consent from our patients at the preoperative visit with the gynecologist," Karen Peart, a Yale spokesperson, said by email Tuesday. "The preoperative consultation provides an opportunity for the gynecologist to discuss the planned procedure and to explain the involvement of the team members who will be involved in the procedure. Additionally, all consent forms contain specific language explaining the involvement of trainees in the decision making and procedural process."

The Connecticut Hospital Association said it supports the concept of the bill but asked that it be revised to provide exceptions for emergencies and unexpected developments during surgeries. The updated bill language provided exceptions for cases when the exam is within the scope of the procedure or necessary for diagnostic purposes.

CHA spokesperson Michele Sharp said in an email to The Day last week, "Although the bill did not progress in the legislature, we were satisfied with the changes that had been made in response to the testimony we submitted. Ultimately, we feel the measure is unnecessary, as we do not believe this practice is occurring in Connecticut."

Sen. Somers called the title of Senate Bill 16 "highly inflammatory."

"If anything, it had a more negative effect, because it gave women the impression something could be happening to them when it's not," Somers told The Day last week.

She said hospitals use dummies to teach pelvic exams or pay willing participants to come in.

Somers said nonconsensual exams do not happen in Connecticut, and that if they did, it would be considered medical assault — something covered under existing laws. Committee meeting minutes show that other legislators, Republican and Democratic, agreed with her point that this bill would therefore be redundant.

"Obviously if any of us on Public Health felt this was even a remote possibility, we would've pushed it," Somers said, but she noted the Department of Public Health has not received any reports this practice has occurred. And so, the committee opted instead to focus on problems it knows are happening, she said.

Robin Fretwell Wilson, a University of Illinois College of Law professor who has spent years advocating for consent legislation around the country, told the Deseret News in Utah it's "almost impossible" for people to know if they'd been used for a practice exam, and medical students don't want to talk about it.

Terry Tsang echoed these concerns and said that because of the medical school hierarchy, students are afraid of speaking up. He suggested the Connecticut General Assembly summon medical students for a closed-door hearing.

"If teaching hospitals are doing what they're supposed to do, getting explicit consent, and if this becomes law, they have nothing to worry about," he said. "They are in compliance, so what's the big deal?"

Tsang first heard about the practice of nonconsensual pelvic exams upon reading an Associated Press article published in May. He has since written to multiple legislators, and he hopes the bill is introduced against next session.

e.moser@theday.com

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