The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 716
INTRODUCER: Judiciary Committee; Health Policy Committee; and Senator Book
SUBJECT: Consent for Pelvic Examinations
DATE: April 15, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Rossitto-Van
Winkle Brown HP Fav/CS
2. Bond Cibula JU Fav/CS
3. Rossitto-Van
Phelps RC Favorable
Winkle
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 716:
 Amends, narrows, and simplifies the definition of “pelvic examination”;
 Amends current law requiring written consent for all pelvic examinations performed by
health care practitioners and trainees to require written consent for anesthetized or
unconscious patients and to require verbal consent from any conscious patient, with
exceptions;
 Modifies the current exception allowing an examination to avert a serious risk of bodily
impairment to simply refer to the statute on emergency services and care;
 Adds three new exceptions, thereby allowing an examination without consent, related to
emergency medical conditions, a child protective investigation, and certain criminal offenses
against a child; and
 Provides that a single written consent for a pelvic examination may authorize multiple health
care practitioners or students to perform a pelvic examination on a pregnant woman having
contractions.
The bill is effective July 1, 2021.
BILL: CS/CS/SB 716 Page 2
II. Present Situation:
The Department of Health
The Legislature created the Department of Health (DOH) to protect and promote the health of all
residents and visitors in the state.1 The DOH is charged with the regulation of health practitioners
for the preservation of the health, safety, and welfare of the public. The Division of Medical
Quality Assurance (MQA) is responsible for the regulatory boards2 and professions within the
DOH.3
Pelvic Examinations
In Florida, allopathic and osteopathic physicians, autonomous advanced practice registered
nurses (autonomous APRNs), APRNs working under a protocol with a supervising physician
whose practice includes a pelvic examination, licensed midwives, and physician assistants
supervised by a physician whose practice includes pelvic examinations, may perform pelvic
examinations and are subject to regulation by their respective board or council.4
Pelvic Examinations on Unconscious or Anesthetized Patients
In recent years, articles have detailed reports of medical students performing pelvic
examinations, without consent, on women who are anesthetized.5 This practice has been
common since the late 1800s, and in 2003, a study reported that 90 percent of medical students
who completed obstetrics and gynecology rotations at four Philadelphia-area hospitals performed
pelvic examinations on anesthetized patients for educational purposes.6
Several medical organizations have taken positions that pelvic examinations under anesthesia by
students in a teaching environment should require the patient’s informed consent:
1
Section 20.43, F.S.
2
Under s. 456.001(1), F.S., the term “board” is defined as any board, commission, or other statutorily created entity, to the
extent such entity is authorized to exercise regulatory or rulemaking functions within the DOH or, in some cases, within the
DOH, MQA.
3
Section 20.43, F.S.
4
Supra note 2; and chs. 458, 459, 464, and 467, F.S.
5
For examples, see: Paul Hsieh, Pelvic Exams on Anesthetized Women Without Consent: A Troubling and Outdated
Practice, FORBES (May 14, 2018), available at https://www.forbes.com/sites/paulhsieh/2018/05/14/pelvic-exams-on-
anesthetized-women-without-consent-a-troubling-and-outdated-practice/#74d152df7846 (last visited Mar. 8, 2021); Dr.
Jennifer Tsai, Medical Students Regularly Practice Pelvic Exams on Unconscious Patients. Should They?, ELLE (June 24,
2019), available at https://www.elle.com/life-love/a28125604/nonconsensual-pelvic-exams-teaching-hospitals/ (last visited
Mar. 8, 2021); Lorelei Laird, Pelvic Exams Performed without Patients’ Permission Spur New Legislation, ABA JOURNAL
(Sept. 2019), available at http://www.abajournal.com/magazine/article/examined-while-unconscious (last visited Mar. 8,
2020); and Amanda Eisenberg, New Bills Would Ban Pelvic Exams without Consent, POLITICO (March, 2019), available at
https://www.politico.com/states/new-york/albany/story/2019/03/13/new-bills-would-ban-pelvic-exams-without-consent-
910976 (last visited Mar. 8, 2021).
6
John Duncan, Dan Luginbill, Matthew Richardson, Robin Fretwell Wilson, Using Tort Law to Secure Patient Dignity:
Often Used as Teaching Tools for Medical Students, Unauthorized Pelvic Exams Erode Patient Rights, Litigation Can
Reinstate Them, 40 TRIAL 42 (Oct. 2004), available at
https://www.researchgate.net/publication/256066192_Using_Tort_Law_to_Secure_Patient_Dignity (last visited Mar. 8,
2021).
BILL: CS/CS/SB 716 Page 3
 The American Medical Association Council on Ethical and Judicial Affairs recommends that,
in situations where the patient will be temporarily incapacitated (e.g., anesthetized) and
where student involvement is anticipated, involvement should be discussed before the
procedure is undertaken, whenever possible.7
 The Association of American Medical Colleges, reversing its prior policy position, offered
that “performing pelvic examinations on women under anesthesia, without their knowledge
or approval … is unethical and unacceptable.”8
 The Committee on Ethics of the American College of Obstetricians and Gynecologists
resolved that “pelvic examinations on an anesthetized woman that offer her no personal
benefit and are performed solely for teaching purposes should be performed only with her
specific informed consent obtained before her surgery.”9
Forty-two states do not require the informed consent to pelvic examinations under anesthesia by
students and residents. California, Hawaii, Illinois, Iowa, Maryland, Oregon, Utah, and Virginia
prohibit unauthorized pelvic examinations.10
The Association of American Medical Colleges (AAMC) has found that most teaching hospitals
inform patients that trainees will be involved in their care and, generally, patients approve of the
trainees’ involvement.11 The chief health care officer for the AAMC notes that recent articles on
unauthorized pelvic examinations rely on studies from more than 10 years ago and before more
detailed informed consent forms were used.12 Typically, students and residents practice pelvic
examinations with special mannequins and standardized patients who are specifically trained for
this purpose.13
Informed Consent
Informed consent for medical treatment is fundamental in both ethics and law.14 Informed
consent is a process in which a health care provider educates a patient about the risks, benefits,
7
AMA Council on Ethical and Judicial Affairs, Medical Student Involvement in Patient Care: Report of the Council on
Ethical and Judicial Affairs, AMA Journal of Ethics (March 2001), available at https://journalofethics.ama-
assn.org/article/medical-student-involvement-patient-care-report-council-ethical-and-judicial-affairs/2001-03 (last visited
Mar. 8, 2021).
8
Robin Fretwell Wilson, Autonomy Suspended: Using Female Patients to Teach Intimate Exams Without Their Knowledge
or Consent, 8 J OF HEALTH CARE LAW AND POLICY 240, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=880120 (last visited Mar. 8, 2021).
9
American College of Obstetricians and Gynecologists, Committee on Ethics, Professional Responsibilities in Obstetric-
Gynecologic Medical Education and Training (Aug. 2011), available at https://www.acog.org/Clinical-Guidance-and-
Publications/Committee-Opinions/Committee-on-Ethics/Professional-Responsibilities-in-Obstetric-Gynecologic-Medical-
Education-and-Training?IsMobileSet=false (last visited Mar. 8, 2021).
10
Lorelei Laird, Pelvic Exams Performed without Patients’ Permission Spur New Legislation, ABA JOURNAL (September
2019), available at http://www.abajournal.com/magazine/article/examined-while-unconscious (last visited Mar. 8, 2021).
11
Stacy Weiner, What “Informed Consent” Really Means (Jan. 24, 2019), available at https://www.aamc.org/news-
insights/what-informed-consent-really-means (last visited Mar. 8, 2021).
12
Id.
13
See note 11.
14
American Medical Association, Informed Consent: Code of Medical Ethics Opinion 2.1.1, available at https://www.ama-
assn.org/delivering-care/ethics/informed-consent (last visited Mar. 8, 2021).
BILL: CS/CS/SB 716 Page 4
and alternatives of a given procedure or intervention.15 A patient must be competent to make a
voluntary decision about whether to undergo a procedure.
The idea of informed consent was established in 1914 in a case in which a patient was operated
on without her consent.16 In determining whether she had a cause of action against the hospital in
which the operation was formed, the judge in the case opined that “every human being of adult
years and sound mind has a right to determine what shall be done to his own body, and a surgeon
who performs an operation without his patient’s consent commits an assault, for which he is
liable for damages.”17
Informed Consent Relating to Forensic Examinations
When sexual assault occurs, the effective collection of evidence is of paramount importance to
the successful prosecution of sex offenders.18
Florida law mandates the reporting of abuse and neglect of both adults and children.19,20 When
the abuse or neglect involves sexual abuse or violence, human trafficking, sexual battery,
prostitution, lewdness, indecent exposure, or obscenity, a forensic medical examination,
sometimes including a pelvic examination, is often involved.
A forensic medical examination serves two purposes. The first is to address the medical needs of
individuals disclosing sexual assault. This is accomplished, with the patient’s consent, by:21
 Evaluating and treating injuries;
 Conducting prompt examinations;
 Providing support, crisis intervention, and advocacy;
 Providing prophylaxis against sexually transmitted infections;
 Assessing female patients for pregnancy risk and discussing treatment options, including
reproductive health services; and
 Providing follow-up care for medical and emotional needs.
The other purpose is to address justice system needs through forensic evidence collection. This is
accomplished by:
 Obtaining a history of the assault;
 Documenting exam findings;
 Properly collecting, handling, and preserving evidence;
15
William Gossman, Imani Thornton, John Hipskind, Informed Consent (Aug. 22, 2020), available at
https://www.ncbi.nlm.nih.gov/books/NBK430827/ (last visited Mar. 8, 2021).
16
Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).
17
Id.
18
United States Department of Justice A National Protocol for Sexual Assault Medical Forensic Examinations
Adults/Adolescents, 2nd. Ed., Apr. 2013, available at https://www.ojp.gov/pdffiles1/ovw/241903.pdf (last visited Mar. 18,
2021).
19
Section 39.201, F.S.
20
Section 415.1034, F.S.
21
State of Florida, Office of Attorney General, 2015, Adult and Child Sexual Assault Protocols: Initial Forensic Physical
Examination, available at http://myfloridalegal.com/webfiles.nsf/WF/JFAO-77TKCT/$file/ACSP.pdf (last visited Mar. 18,
2021).
BILL: CS/CS/SB 716 Page 5
 Interpreting and analyzing findings; and
 Subsequently presenting findings and providing factual and expert opinion related to the
exam and evidence collection.
Victims of sexual violence, like any other individual, must give informed consent to a forensic
medical examination before the examination may be performed. A health care practitioner, a
medical student, or any other student receiving training as a health care practitioner may not
perform a pelvic examination on a patient without the written consent of the patient or the
patient’s legal representative executed specific to, and expressly identifying, the pelvic
examination, unless:
 A court orders performance of the pelvic examination for the collection of evidence; or
 The pelvic examination is immediately necessary to avert a serious risk of imminent
substantial and irreversible physical impairment of a major bodily function of the patient.22
In the event that the victim is a child, or an adult who lacks the capacity to give consent, the
victim’s legal representative may sign the consent forms. If the victim is unable to consent due to
being incapacitated, the examiner may not commence with the examination without a court
order.23
Florida Requirements for Informed Consent
In Florida the only general law on medical consent appears in ch. 766, F.S., Medical Malpractice
and Related Matters.24 However, Florida physicians and physicians practicing within a
postgraduate training program approved by the Board of Medicine (BOM) and the Board of
Osteopathic Medicine (BOOM) must explain the medical or surgical procedure to be performed
to the patient and obtain the informed consent of the patient. The physician is not required to
obtain or witness the signature of the patient on a written form evidencing informed consent, and
there is no requirement that the patient use a written document, although hospitals and facilities
where procedures are performed typically require consent in writing.25,26
In 2020 the Florida Legislature created s. 456.51, F.S., Consent for pelvic examination,27 in
response to media reports that medical students may be performing pelvic examinations on
22
Section 456.51, F.S.
23
Id.
24
Section 766.103, F.S., provides: No recovery shall be allowed in any court in this state against any physician, chiropractor,
podiatric physician, dentist, APRN, or PA in an action brought for treating, examining, or operating on a patient without his
or her informed consent when: 1) The action of the practitioner in obtaining the consent of the patient, or another person
authorized to give consent for the patient, was in accordance with an accepted standard of medical practice among members
of the medical profession with similar training and experience in the same or similar medical community; and 2) A
reasonable person, from the information provided under the circumstances, would have a general understanding of the
procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the
proposed treatment or procedures, recognized among practitioners in the same or similar community who perform similar
treatments or procedures; or 3) The patient would reasonably, under all the surrounding circumstances, have undergone the
treatment or procedure had he or she been advised by practitioner in accordance with the provisions of the first.
25
Fla. Adm. Code R. 64B8-9.007, and 64B15-14.006 (2019).
26
See The Joint Commission, Advisory on Safety Issues, Issue 21, (Feb. 2016), Informed Consent: More than Getting a
Signature, available at https://www.jointcommission.org/-/media/tjc/documents/newsletters/quick_safety_issue_twenty-
one_february_2016pdf.pdf (last visited Mar. 8, 2021).
27
CS/CS/SB 698, Ch. 2020-31, s. 3, Laws of Fla.
BILL: CS/CS/SB 716 Page 6
anesthetized or unconscious women without obtaining informed consent from the woman prior
to anesthesia or from any other person who can provide consent.28
Section 456.51(1), F.S., defines a “pelvic examination” to include a series of tasks that
encompass an examination of the vagina, cervix, uterus, fallopian tubes, ovaries, rectum, or
external pelvic tissue or organs using any combination of modalities, which may include, but
need not be limited to, the health care provider’s gloved hand or instrumentation. Under current
law, a health care practitioner, medical student, or any other student receiving training as a health
care practitioner is not permitted to perform a pelvic examination on a patient without the written
consent of the patient or the patient’s legal representative, executed spec