Written Consent Required for Pelvic Exams in Florida

Executive Summary

Florida requires patient consent before performing a pelvic exam. The degree of consent varies depending on the circumstance. Additionally, there may be some circumstances where consent is not required or only the initial pelvic exam will require the consent. Physicians should review the new guidelines to ensure compliance with any requirements, as fines for any violations can add up. 

Recommended Actions 

• Ensure that you’re staying current regarding this Florida law and your practice is in compliance with any updates.
• Ensure that you’re having a conversation with your patients when obtaining consent, instead of simply having them sign a consent form. 
• If you’re unsure whether consent is needed prior to an exam, err on the safe side and obtain it.

During the 2020 Florida legislative session, a bill was introduced to require written consent before the performance of a pelvic examination. Numerous physicians and medical groups immediately voiced concerns about ambiguities within the bill and requested clarification from the Florida legislature — which MagMutual advocated for on behalf of our PolicyOwners. Senator Lauren Book’s new bill, SB 716 “Consent for Pelvic Examinations”, sought to make consent clear and clarify the intent of the original bill through an amendment. It became effective July 1, 2021.

The new legislation:

1. Revised the definition of “pelvic examinations”
2. Clarified when written or verbal consent is required
3. Revised the circumstances under which pelvic exams may be performed without consent
4.  Provided that under certain circumstances consent is needed only for the initial pelvic exam

Although somewhat clearer, the new law still fails to clearly delineate when consent is required. Thus, it is essential that providers review policies and consent forms to ensure that they understand what is required of them when conducting pelvic examinations.

Definitions and Requirements

Policies and procedures must specifically address the definitions and requirements outlined below.1.    

What constitutes a pelvic examination?

The definition of “pelvic examination” means an examination of female reproductive organs by a healthcare provider’s gloved hand or instrument. A pelvic exam does not include any visual assessment, imaging or non-diagnostic/surgical procedure. A pelvic exam does not apply to biological males, a discrete visual exam of any female reproductive organs or to the performance of a surgical procedure to any female reproductive organs.

When is consent required?

Consent is required prior to conducting any pelvic examination, unless an exception applies. Healthcare practitioners must obtain written consent from patients who are going to be under anesthesia or who will otherwise be unconscious. A legal representative may provide consent if one has been appointed. However, if the patient is conscious, the healthcare practitioner must obtain verbal consent and written consent. 

A healthcare practitioner does not need to obtain consent -- verbal or written -- if the pelvic exam is being conducted because of a court order, emergency situation, or as part of a child protective investigation or any other criminal matter.

A healthcare practitioner only needs to obtain written consent for the initial pelvic exam in a series of pelvic examinations when a healthcare practitioner is providing care to pregnant women having contractions in a licensed facility. The healthcare practitioner must ensure that the pregnant woman is aware that multiple pelvic exams may be conducted during the course of her care.

Who is responsible for obtaining the required consent?

A health care practitioner, medical student or any other student receiving training as a health care practitioner may not perform a pelvic examination on a female patient unless the necessary consent was obtained. “Healthcare practitioner” is defined very broadly and includes various licensed professionals such as physicians, optometrists, massage therapists, physical therapists, osteopathic physicians and allopathic physicians.[1]

As with the original law, the updated law does not specify whether the practitioner is required to personally obtain the consent or if it can be obtained by another individual. MagMutual recommends that the performing practitioner discusses the examination with female patients prior to the patient’s written consent being obtained.  

Specific Consent Form Required

The consent form for a pelvic examination must be specific to, and expressly identify, the pelvic examination. In addition, for an initial pelvic examination performed on a pregnant woman having contractions, the consent form must “inform the patient that multiple pelvic examinations may be conducted during the course of her care and treatment at the facility.”

The Florida Medical Association developed a sample pelvic examination consent form, which can be found here.  

Penalties

Failure to obtain informed consent could lead to criminal charges if it is determined to be battery. Administrative penalties also may be brought against the healthcare practitioner, including revocation or suspension of his or her license, administrative fines and corrective action.[2]

Lessons Learned: 

Ensure that your practice has written policies and procedures complying with these new consent requirements for pelvic exams.

Ensure that all staff members are adequately trained regarding these new requirements and can implement your practice’s new polices. 

Ensure that your written consent form is compliant with the law’s requirements or use Florida Medical Association’s sample pelvic examination consent form.

Potential Damages:        

Since violations of this new law can result in a provider facing medical malpractice issues and disciplinary action, there is a greater potential for a higher payout. However, the frequency of such claims is relatively low. To date, MagMutual’s policyholders have not made a claim for any loss relating to violating this new law.

[1] Florida Statute 456.001(4)
[2] Florida Statute 456.072