Using Tort Law to Secure Patient Dignity
Robin Fretwell Wilson
University of Illinois College of Law
Ness, Jett & Tanner, LLC
Wyche, Burgess, Freeman & Parham, PA
U of Maryland Legal Studies Paper No. 2004-24
The practice of using anesthetized patients to teach pelvic exams on female patients in university hospitals has been well documented for years. A 1992 study showed that 37 percent of U.S. and Canadian medical schools allowed students to use anesthetized women without their consent to learn how to perform pelvic exams. Anecdotal accounts in the U.S. confirm that men are not immune from such indignities. Although patients have been unable, thus, far to enforce their own interests and protect their dignity, the tort system may yet succeed in securing the right of patients to decide who touches their bodies and under what circumstances.
Using tort law to secure patient dignity examines the theories of recovery available to those who have been the subject of unauthorized teaching exams. It evaluates a patient's likely success under theories of medical battery and malpractice, failure to obtain informed consent, and breach of fiduciary duty. It explores the obstacles to recovery and the arguments that will be raised by physicians and teaching hospitals in defense of this practice, and concludes that the tort system may be the most effective vehicle to redress the unauthorized use of patients' bodies as teaching tools and to curb this practice.
Number of Pages in PDF File: 13
Keywords: Patient rights, pelvic exams, informed consent, medical malpractice, medical battery, informed consent, fiduciary duty
Date posted: November 5, 2004