With the attention that the #MeToo movement has generated, many medical professionals and patients are beginning to question implied consent more closely. Does a doctor need to ask a patient for permission before the doctor touches the patient? Is implied consent enough to protect a doctor from sexual assault claims?
Highlights from this article include:
- A Patient’s Right to Informed Consent
- Express Consent vs. Implied Consent for Medical Services
- Sexual Assault Claims Against Doctors
- Steps to Take if You Suspect Sexual Assault by a Medical Professional
A Patient’s Right to Informed Consent
As a patient, you have the right to understand the procedures and treatment being performed by your physician. The laws regarding informed consent clearly lean toward more disclosure and transparency rather than less. There are some exceptions to the general rules for informed consent, such as in life-threatening situations, but generally, a physician is required to obtain informed consent or permission to perform procedures, services, or care. Patients have the right to ask questions and gain additional information before treatments or procedures begin.
In most cases, for a patient to provide informed consent, the doctor must:
- Describe the recommended treatment or procedure;
- Discuss the risks and benefits of the treatment or procedure;
- Describe any alternative treatments or procedures that might be available and why the doctor is choosing this specific course of treatment or procedure over those alternatives;
- The probable results if no treatment is taken; and,
- The doctor’s opinion of the probability of success and the doctor’s definition of success.
For treatments involving invasive procedures, a doctor typically obtains written informed consent from a patient. Written consent states that the patient has received all information about the treatment or procedure, understands the information, and agrees to the treatment or procedure. In other cases, verbal consent might be sufficient to cover a doctor’s liability to obtain informed consent.
A doctor who fails to obtain informed consent could be held liable for medical malpractice if the patient suffers harm from a procedure or course of treatment. In many cases, a doctor or hospital requires patients to sign a blanket statement that consents to treatment for noninvasive, routine procedures.
However, these blanket consent forms may not be sufficient to protect a medical provider from malpractice or even sexual assault charges. If the medical provider did not take additional steps to ensure that the patient was fully informed about a specific procedure or treatment, the medical provider could be liable if the patient is harmed.
Express Consent vs. Implied Consent for Medical Services
Express consent occurs when a patient signs a written consent form acknowledging the patient’s desire to proceed with a procedure or course of treatment. For example, a patient signs a consent form for surgery stating that the surgeon has discussed the procedure, risks, benefits, alternatives, and other information with the patient, and the patient elects to proceed with the surgical procedure after being fully informed. The written consent form is an example of express consent.
However, a patient may also give express consent verbally. Saying, “Yes, I consent” or “Yes, proceed” is sufficient to provide express consent if the patient has been fully informed of the procedure or treatment. The requirement to obtain written consent varies depending on the procedure or treatment.
Implied consent is given through a patient’s actions. A patient coming in for a routine physical may give implied consent to having blood drawn by giving the nurse his or her arm for the nurse to stick with the needle. A patient may give implied consent to having an x-ray taken by lying down on the table when instructed by a technician.
However, is going to the doctor for a routine examination giving implied consent for the doctor to touch you without asking for your permission? Most patients assume when we go to the doctor’s office for treatment that the doctor is going to perform some type of physical examination. We expect a medical provider to check our vitals and we expect some level of physical contact, but at what point does a doctor need to obtain consent before proceeding with physical contact?
USC Involved in Multiple Claims of Sexual Assault Against Students by Campus Physicians
For instance, dozens of male patients allege that a doctor at the University of Southern California (USC) sexually assaulted them. The men claim that Dr. Dennis Kelly performed unnecessary and invasive physical examinations without their consent.
USC is also involved in another sexual assault lawsuit involving a former USC gynecologist who is accused of sexually assaulting multiple female students.
Hundreds of women have come forward claiming that Dr. George Tyndall’s interactions with patients were not medically appropriate. He is charged with 11 counts of sexual battery by fraud and 18 counts of sexual penetration. Victims allege that they were not aware of what was happening because they were led to believe that the actions being taken by the doctor had a professional purpose.
Pelvic Examinations Performed While Patients are Unconscious
Another example of a lack of consent is doctors performing pelvic examinations on unconscious women. While this might sound outrageous, it appears that it happens quite often. One example involves a young Utah woman who went to the emergency room for uncontrolled vomiting. The emergency room physician eventually gave her an anti-nausea medication, which had a sedative effect. She passed out. The doctor performed a pelvic examination looking for evidence of a sexually transmitted infection, which the patient had denied was possible before she passed out. Regardless, the doctor performed the pelvic examination without gaining her permission. She woke up during the pelvic exam.
The policy of medical students or doctors performing unnecessary pelvic examinations on unconscious women as a learning technique is routine at many teaching hospitals. The practice has led some states to enact laws prohibiting pelvic examinations on unconscious women without their consent.
Sexual Assault or Medical Malpractice
The question becomes when does a case involve medical malpractice or sexual assault. Performing procedures and treatments without gaining a patient’s informed consent are typically litigated as medical malpractice. If the patient is harmed because the doctor did not fully inform the patient of the risks of the procedure, the patient may have a civil claim under California’s medical malpractice laws.
However, when a doctor performs an exam or procedure or touches a patient without the patient’s consent, does that rise to the level of sexual assault? It depends on the factors of the case.
When a doctor performs an unnecessary procedure that results in touching the patient, it could rise to the level of sexual assault, even if the doctor asked permission to conduct the procedure or the permission was implied because the patient did not say stop or followed the doctor’s instructions during the procedure.
If the procedure was not medically necessary, the doctor’s actions could be considered sexual assault.
An example is Dr. Larry Nassar. He sexually abused hundreds of young women while claiming the procedures were medical treatments for various conditions. Allegations of a coverup by USA Gymnastics and Michigan State University have also led to lawsuits against those institutions by victims of Dr. Nassar.
Consent to treatment does not give a doctor the right to sexually assault a patient. As part of informed consent, the doctor must explain why the treatment is medically necessary. However, if the doctor is using the medical treatment as a means to sexually assault a patient, the doctor can be held liable in civil court for damages and in criminal court for assault.
Steps to Take if You Suspect Sexual Assault by a Medical Professional
Because of the #MeToo movement and intense spotlight on sexual assault cases, some medical providers have chosen to ask permission before they touch a patient, even during routine exams in which certain contact is expected as part of the examination. For instance, some physicians may now ask their female patients for permission to touch their breasts during a yearly gynecological physical, even though patients usually expect that type of physical contact during an annual GYN examination.
It is important to remember that even though a physician might ask permission to touch you or claim a procedure is medically necessary, your consent to treatment is not consent to be sexually assaulted by a doctor. You might have consented to a pelvic examination, but you did not consent to a doctor unnecessarily touching you or acting in a manner that is inconsistent with medically approved practices.
If you believe that a doctor sexually assaulted you, you might have several options for seeking compensation for your damages. The doctor might also face criminal charges for sexual assault, depending on the circumstances and facts in your case.
If you believe you were injured because of the sexual assault, seek medical care from another physician. At the same time, contact a California sexual assault attorney to discuss your legal rights and your options for holding the doctor liable for sexual assault.
What is Sexual Assault in California?
Sexual assault covers a variety of criminal offenses that include the unwanted touching of a person’s intimate areas. Examples of sexual assault offenses include, but are not limited to:
- Unwanted touching or groping
- Forced sexual acts of any nature
- Sexual exploitation
- Attempted rape
- Any unwanted penetration of the victim
- Sexual abuse
Sex crime convictions carry severe criminal penalties under state and federal laws. However, sexual assault can also be the basis for a civil lawsuit. Under a civil claim for sexual assault, a person can seek monetary compensation for damages and injuries caused by the sexual misconduct. Damages that might be recoverable in a sexual abuse claim include, but may not be limited to:
- Medical expenses and bills
- Counseling and therapy
- Loss of income
- Mental anguish and emotional distress
- Physical pain and suffering
The types of damages and the amount of compensation depend on numerous factors. An experienced California sexual abuse attorney can discuss your claim in more detail during a free consultation.
Time to File Sexual Assault Lawsuits are Limited
California recently changed its statute of limitations or deadlines for filing sexual abuse lawsuits. Even though some victims may have longer to file lawsuits for sexual assault, there are deadlines for filing sexual assault lawsuits. If you miss the deadline, you could lose your right to hold the party or parties responsible for your injuries accountable for their actions.
It is best to consult a California sexual misconduct attorney as soon as possible. An investigation into sexual assault claims against physicians can take time to complete. Law enforcement agencies handle criminal investigations in sexual assault claims against physicians. However, they do not handle civil claims, nor do they assist in obtaining evidence to prove allegations in a civil lawsuit.
An attorney helps you build a civil claim by conducting an independent investigation into the fact surrounding sexual misconduct claims against doctors. Having an experienced lawyer handle your civil claim can increase your chance of recovering compensation for a California sexual assault claim.
The Lawyers of The Thompson Law Office Stand with Survivors of Sexual Abuse
Our legal team has extensive experience handling sexual abuse and sexual misconduct claims, including sexual assault claims against medical professionals. We have the resources, skills, experience, and knowledge that you need on your side as you stand up for your right to hold a medical professional accountable for sexual misconduct.
If you are a sexual abuse survivor, please 1-650-513-6111 to schedule a free consultation with a California sexual assault lawyer or request additional information about sexual assault claims in California.