Law Professor’s Scholarship Leads to New Legislation Banning Unauthorized Exams

Lexington, VA • Tuesday, May 29, 2007

Prof. Robin Fretwell Wilson

Imagine you're a woman going in for surgery at a well-known teaching hospital. You're confident in your surgeon and you've signed all the usual consent forms. Unfortunately, what you don't know is that while you're under anesthesia medical students may be performing a pelvic exam without your knowledge or consent.

Thanks in large part to recent scholarship by Robin Fretwell Wilson, professor at the Washington and Lee University School of Law, this controversial practice will be banned on July 1.  

In January and February, Wilson appeared before the Senate Committee on Education and health and a House subcommittee discussing House Bill 2969, new legislation that prohibits students at teaching hospitals from performing pelvic exams without a patient's consent. It was Wilson's 2005 article on the practice and discussions with House Delegate Robert Bell (R) that led Bell to introduce the legislation for the 2007 session.

Medical professionals have agued that asking for informed consent would result in most patients not giving consent, reducing the teaching opportunities so critical to the "see one, do one, teach one" method of medical education. However, Wilson's research shows otherwise.

"Not only does this claim turn informed consent on its head, it's just wrong on the facts," says Wilson. "There are really good studies of consent that demonstrate women will give permission for educational pelvic exams if medical professionals simply take the time to explain the need and ask permission."

Medical professionals also say that this practice is authorized already under current hospital consent forms, another claim that Wilson disputes. "It's clear that a pelvic exam or other invasive procedure can occur without consent if there is a medical need," says Wilson. "However you can't reasonably read these contracts as authorizing this for the student's education."

As part of her testimony before the House committee, Wilson discussed her plan to address the complexities and ambiguities of hospital consent forms, a plan that will involve students from the School of Law. Members of W&L's new Health Law Association will work pro bono with hospital counsels to review and redraft existing consent forms to add language that specifically authorizes educational pelvic exams. Students will also draft sample consent forms for any hospital to use.

Wilson is proud of her role in the new legislation and that it has created an opportunity for her students to gain some practical experience. "This is what we should be trying to achieve in the law," says Wilson. "Rather than simply writing articles that are critical of a practice, we should be working to translate that critique into real reform in society."

In recognition of her contributions to the legislation, Delegate Bell in July will present Prof. Wilson with a Citizen's Lawmaker Award, given annually to four to five individuals for bringing forward ideas that result in legislative change.

Related Resources

Faculty Website – Robin Fretwell Wilson

Autonomy Suspended: Using Female Patients to Teach Intimate Exams without Their Knowledge or Consent, 8 Journal of Health Care Law & Policy 240 (2005). SSRN Link

House Bill No. 2969: A Bill to amend and reenact § 54.1-2959 of the Code of Virginia, relating to supervised training programs; students enrolled in schools of medicine allowed to engage in certain activities; prohibition of unauthorized pelvic exams.

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