Can Doctors Perform Pelvic Exams Without Asking?
February 26, 2020 | Medical Malpractice
Before she had stomach surgery at an Arizona hospital, Janine specifically told doctors she did not want a pelvic exam.
They gave her one anyway. And, this was not an isolated incident.
Only a few states in the Union require pelvic exam informed consent.
In most cases, doctors or even medical students may perform such exams if they consider them medically necessary, even if the patient is fully sedated at the time.
The practice also adversely affects medical students who are expected to intimately examine helpless women.
Medical Standard of Care
Generally, doctors have a fiduciary duty toward their patients.
That’s the highest standard of care in the law. Essentially, doctors must cast aside all other priorities, such as making money or their own convenience, and focus only on what is best for the patient.
The bigger they are, the harder they fall.
That higher standard of care makes it easier to establish physician negligence, as outlined below.
Informed consent is one element of a physician’s fiduciary duty.
Patients must fully understand both the exact nature of any surgical procedure and also the risks of the procedure. And, there are always some risks.
Failure to obtain proper consent is a major deal.
In many states, including New York, unconsented procedures, especially while the patient is anesthetized, could be assaults.
Intentional torts like assaults go beyond mere negligence or lack of care. As a result, extremely high damages might be available in such cases.
Misdiagnosis is another common fiduciary duty breach.
Generally, doctors misdiagnose conditions because they fail to listen to patients and they do not properly perform diagnostic tests.
So, misdiagnosis is a dual failure.
In one study, over 80 percent of doctors said they listened carefully to their patients.
But on average, doctors listen to patients for about eleven seconds before cutting them off.
So, doctors have almost no diagnostic evidence, such as the patient’s pain level or source of discomfort.
A lack of hard data compounds this problem.
Many doctors do not run a full array of tests because they are afraid the insurance company will not pay for them.
Other doctors delegate test results interpretation to nurses or technicians. Sometimes these professionals miss things, and other times, items are lost in translation.
Both these areas, concern about money and arranging things for their own convenience, clearly violate the doctor’s duty of care.
What to Expect in a Legal Claim
Almost all civil cases settle out of court, and some settle rather quickly.
Frequently, there is no question as to liability. That’s especially true with regard to misdiagnosis.
If that’s the case, the insurance company has a legal duty to settle the claim within a few weeks.
However, in most cases, there is at least some dispute as to liability.
Lack of consent is a good illustration. Most doctors have patients sign waivers before surgery.
Insurance companies often see these waivers as get-out-of-jail-free cards which excuse almost any negligence, but that’s usually not the case.
For example, perhaps English is not the patient’s first language or there is some other reason the patient does not fully understand the waiver.
So, most New York personal injury attorneys file legal claims to pressure the insurance company into settlement.
Frequently, the insurance company just needs to know that the victim/plaintiff is serious about the matter and has a solid negligence case.
The discovery period usually comes after a court filing.
During discovery, the two sides exchange information about their claims and defenses.
Commonly, medical malpractice claimants must submit to medical exams, provide oral depositions, and answer written questions under oath.
When the discovery period ends, if the case still has not settled, most judges refer these matters to mediation.
A professional mediator works with both sides to try and forge a settlement. If both sides negotiate in good faith, mediation is almost always successful.
Damages in a medical malpractice claim usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Additional punitive damages are often available in these cases as well. A damages cap might apply, in some cases.
Doctors must obtain informed consent and otherwise live up to very high standards.
For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. Home and hospital visits are available.
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