Investigations – Office of Sexual Misconduct – “Implied Consent”

In my previous post, I discussed informed consent and consent forms. My entire argument regarding my complaint rested on consent. I could only consent to the procedure and the preparatory steps for it as it was explained to me, and that involved my leg, not my pubic region, and certainly not my genitals.

So what is the reason why medical staff don’t go over the preparatory process with patients? Well, they claim it is about time and that that’s just the way they do things. This was the excuse the resident gave when the lawyer asked her during her interview with the investigator.

The investigator asked the doctor about consent regarding preparatory steps. She replied:

Of course, it is debatable regarding the necessity of prepping my groin for a complication that typically would not occur or an emergency that is “super unlikely.” Plus, what I have subsequently learned is that there are vein centers and clinics around the country that don’t expose their patients’ genitals or clip their pubic hair. So I suppose my definition of “necessary” is different. But regardless, I as a patient should have the ultimate say so in what I deem is necessary by virtue of my right to reject, refuse, or withdraw consent. This was denied to me.


The excuse that it’s not possible to cover everything is not true. I will discuss this in a future post. Besides, it is law that the consent process involves a discussion of all known risks, not just the ones most likely to occur. Furthermore, if it is a risk that they prep for, they should be required to inform the patient of that risk and how they will prep for it.

As I stated to the investigator with the Office of Sexual Misconduct, I am not trying to change practices. The hospital has a right to perform a procedure as they want….just as I have a right to approve – or reject – said procedure since the patient is the head of the health care team. Patients should be treated as individuals rather than procedures and merely have a right to know when intimate areas of the body are going to be involved in elective medical procedures in any way. Merely claiming that the doctor and her team did not deviate from their standard practices does not absolve them from performing tasks involving intimate areas of the body without expressed consent. It simply means that countless patients have been unnecessarily and avoidably violated and harmed in the name of “standard care” and “consistent practice.” The excuse of “that’s just the way we do things” is woefully inadequate. Simply following consistent practices is an unacceptable justification for failing to offer and apply options for the benefit of preserving a patient’s personal dignity and bodily sanctity – the patient’s personal dignity, not what medical staff think treating a patient with dignity means. The medical staff had ample time, opportunities, and means to communicate the preparatory process to me. They simply chose not to. And it is for this precise reason that the actions of the doctor and her staff are indeed offensive, egregious, and a violation of a patient’s personal dignity, my personal dignity. The investigator actually disagreed:

At any rate, he ruled that:

He further opined:

And he goes on to say:

So he considers exposing a patient’s genitals to view to multiple people in an operating room and contacting intimate areas of the body while clipping pubic hair and cleansing a groin….mundane? Maybe to members of the medical community but certainly not to patients who experience the sexual contact.

You know, there is a reason why there are specific laws and policies that deal with access of intimate areas of a person’s body. And that’s because of the unique type of harm that results from these types of violations. There’s nothing “mundane” about it.

It is troubling that this investigator and others in similar roles of power do not agree that consent should be secured for visual and physical access of intimate areas of the body during elective medical procedures in order to protect patients and providers alike. It is also disturbing that they do not seem to believe that medical personnel should be held accountable for failing to implement multiple options to avoid genital exposure. The investigator’s viewpoint is in contrast to and counterproductive of the university’s mission for the Office of Sexual Misconduct to eliminate unwelcomed sexual contact.  His stance further allows doctors to abuse their privileged position of power and will enable situations such as these in the medical community.

The investigator’s statement that “Under the context of a medical examination or procedure, it is reasonable to expect that viewing and physical contact will occur”  is true to an extent, but not in all instances.  It is unreasonable to expect me to know that the underwear hospital staff gave me was going to be removed, my genitals exposed, and my groin shaved when incisions were to be made around my knee only and that my groin was never mentioned in any discussion of the procedure.  Furthermore, my genitals were never exposed and my groin was never shaved for any prior medical experience.  Therefore, the investigator’s assessment is ambiguous, incomplete, and flawed. 

The investigator correctly asserts that a reasonable person would expect a surgeon to take the necessary steps to save a person’s life in an emergency, which my procedure was not, or to alleviate a complication that suddenly arises.  The key phrase is “if those circumstances arise.”  This implies that these circumstances would arise during the procedure.  But given that I was exposed, clipped, and cleansed before the procedure, shows that the doctor and her staff were aware of these circumstances – they admitted as much – and a reasonable person would expect to be informed of them.  Besides, the doctor explained one access point she would use should a complication arise.  So one would have expected to have been informed of all possible access points.  Yet, she never mentioned groin access.  

The investigator’s statement that “Consent does not require acknowledgement of all the details which could be reasonably inferred from consent to the general activity” is flawed, falls outside the specific nature of intimate contact, and hinges on the doctrine of implied consent.  Implied consent is based on an assumption that the patient possesses some prior knowledge that a specific task could be performed and, thus, there is a presumption of consent.  In my case, because I was told that  incisions would be made around my knee, I expected steps to be taken to prepare my leg.  But not my groin and lower abdominal region right up to my penis on the side and base.  Implied consent when dealing with intimate areas of the body is in direct contrast to the university’s Sexual Misconduct policy that defines consent as“knowing, voluntary, and clear permission by word or unambiguous action.”  Implied consent is not clear permission by word or unambiguous action. Recall above that the investigator opined that consent does not require acknowledgement of each step. But since consent as it is outlined in the policy deals with sexual misconduct, it applies precisely to intimate areas of the body defined as “breasts, buttock, groin, or genitals.”  And thus, the investigator’s examples illustrating implied consent, such as receiving an IV or drape, do not apply because they are actions that do not involve intimate areas of the body.  His example of addressing emergency situations or complications that may arise during a procedure is also inapplicable because these may not involve intimate areas of the body.  Therefore, his examples are irrelevant with regards to the policy on Sexual Harassment and Sexual Misconduct and my case.  For his example of clothing removal, a patient would expect clothing to be removed if it  directly interfered with the procedure.  A patient would expect a gown to be removed for a procedure involving the midsection area for example.  But how could I expect the disposable underwear provided to me would be removed when my groin was never mentioned in any conversation about my procedure at any point?  The fact that I was provided with underwear and a wrap-around gown made me feel that my privacy would be protected.  Furthermore, my genitals were never exposed and my groin was never shaved during any previous medical experience.  So it would be unreasonable to expect me to understand that intimate areas of my body were going to be visually and physically accessed for a procedure centering around my leg.  The investigator’s perception of what a patient should expect is unreasonable and inconsistent with this scholarly article which says that intimate procedures require “specific expressed consent.”  Therefore, it is unreasonable for implied consent to be considered, especially given the fact that neither the Sexual Harassment nor Sexual Misconduct policy allows for this concept.  

Invoking the doctrine of implied consent is further evidence of exerting power and harassment because it denies a patient the ability to refuse consent for performing intimate procedures without a patient’s knowledge, and thus, contributes to the unwelcoming and intimidating environment at this university hospital and countless others across the country.

The investigator agreed with the scholarly article I shared in my response to his investigative report stating that medical harm is often the by-product of action rather than conscious intent.  But what he failed to acknowledge is that it is in part the reliance by medical personnel on the doctrine of implied consent that propels this action that causes harm.  In a paragraph above, he acknowledged that “The lack of detailed consent in this case led to a deficit between what [the doctor] expected the patient to understand about the procedure and what this specific patient understood about what would happen.”  Understanding is the cornerstone of consent. And a patient cannot understand without information.  Thus, it is absolutely reasonable that it was the abuse of position of power by the doctor and her staff that created this deficit in the consent process when they assumed that they did not need to inform me that they would be visually and physically accessing intimate areas of my body, and that this information should not be important to me. According to the sexual harassment policy,  which states that “sexual harassment unfairly exploits the power inherent in [a]….position,” it is absolutely reasonable that the the doctor and her staff abused their position of power, and thus, are responsible for sexual misconduct.

The investigator failed to acknowledge that modest individuals and vulnerable members of society, such as sexual assault victims, who are hypervigilant of protecting their bodily autonomy and sanctity, would indeed find the environment at this university hospitals and others unwelcoming, intimidating, and hostile if medical personnel are allowed to abuse their privileges of power to decide that expressed consent is unnecessary to visually and physically access intimate areas of a patient’s body that are not directly involved in outpatient procedures.  Hospitals should be safe places where individuals seek healing without fear of assaults on their personal dignity and humanity.  Vulnerable people need to be protected by the systems in place tasked for that purpose, and that includes protection from medical personnel. But that doesn’t happen.

The investigator acknowledged that it may be advisable for this university hospital to implement a more detailed consent process, but he claimed that this does not insinuate a conclusion of unreasonableness on the part of the doctor and her staff.  How could it not? Why make such an advisement unless the choices medical personnel make as they navigate the consent process cause harm?  This approach enables an abuse of a position of power.  Thus, it stands in contrast with the sexual harassment and sexual misconduct policy.

So what did the appeal officer say?

And how did the lawyer with the general counsel of the university respond when I next appealed to the governing board of the university?

So these women just parroted what the investigator said instead of actually considering my very valid and very true arguments, all of which are proven true based on the university’s policies and statements and notes made by the medical team. “This matter was fully and fairly investigated, reviewed, and concluded”? What utter rubbish. In other words, they believe that because it doesn’t say in the consent form that they couldn’t strip me naked and put their hands all over my private areas for a procedure that didn’t directly involve intimate body parts that they didn’t do anything wrong. It’s similar to a stance the university took when I pointed out that their policy doesn’t afford legal counsel for witnesses.

That’s all the nonsense they could come up with because they’re wrong. They had nothing with which they could legitimately rebut my arguments. They’re wrong.

So that’s it. To summarize, it was ruled that the conduct of the doctor and her staff were not egregious or unreasonable because their actions occurred within a medical context. Consent was irrelevant to them. What is egregious is the fact that, by virtue of their findings in their investigations, the doctor and her staff, the investigator, the appeal officer, and the lawyer with the university’s general counsel have dictated to me what I should find to be egregious or not, that I should have expected intimate access during my elective medical procedure, that I should accept unwanted and non-consensual exposure and contact with intimate areas of my body in medical settings, and that I am an unreasonable person if I don’t.  So they placed all of the blame on me.

And you will experience such an egregious miscarriage of justice, too, because, as you have hopefully been observing, patients have no true avenues to seek accountability.

I will conclude this series on consent with a quote from this article about a woman secretly recording sexually abusive remarks from her surgeon while she was sedated. The hospital merely reminded OR staff to knock it off.

“It used to be that empathy and compassion were traits required when caring for patients, but now many of my friends and acquaintances remark that their animals receive better care, and better informed consent, from their veterinarians than they do from their personal physicians. Communication is a lost art or skill in the medical field, and I predict it will get worse with the overwhelming use of email, texts, and social media in general.”

And I haven’t even discussed all the lies yet.