Florida’s New Patient Consent Law Has Broad Impact on Health Care Providers: Here’s What You Need to Consider

The Florida Legislature recently passed a law expanding many health care providers’ obligation to obtain additional patient consent prior to the provision of a wide range of health care services. Because a portion of the law takes effect July 1, 2020, immediate attention is essential.

The law was designed to address years of consent issues related to reproductive health services. However, the plain language of the law broadens applicability well beyond reproductive medicine. Effective July 1, 2020, the law requires health care practitioners to obtain patient consent to render pelvic examinations and/or to inseminate reproductive material. This article focuses on the pelvic examination consent requirement. The key consequence is the broad applicability of the law. For many health care practitioners, there is much to consider.

What constitutes a pelvic examination?

The new law defines a pelvic examination as “a series of tasks that comprise 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.” The inclusion of broad language such as “series of tasks,” “need not be limited to” and “any combination of modalities” results in the inclusion of many types of examinations that go far beyond reproductive health. For example, while physical examinations appear to be expressly included, the definition does not rule out visual examinations and could even be construed to include many urological and gastroenterological examinations, and even the taking of a temperature rectally. Given the use of such broad language, we believe it appropriate to obtain written consent when rendering any type of examination of the listed pelvic areas.

Do I need to obtain written consent from the patient each time I conduct a pelvic examination, or, is it sufficient to obtain the patient’s general consent for all pelvic examinations I will perform on the patient during his or her entire course of treatment?

The new law requires patient consent be “executed specific to, and expressly identif[y], the pelvic examination.” This phrase can reasonably be interpreted to require written consent prior to each pelvic examination. Although this is a burdensome requirement for health care practitioners who perform pelvic examinations daily, absent future guidance to the contrary, the best practice is for health care practitioners to obtain patient consent in writing before the rendition of each pelvic examination.

What needs to be included in the patient consent form?

The new law does not provide suggested language for the written consent document. At a minimum, the consent must be obtained by the patient, or the patient’s legal representative, in writing and must identify the proposed pelvic examination to be conducted.

It should also be noted that the new requirements have been implemented in addition to, and do not take the place of, existing consent laws, including Florida’s Medical Consent Law. Thus, in addition to these new consent requirements for the services covered by the statute, health care providers are still required to obtain a patient’s informed consent for any treatment or service.

Are there any exceptions to the consent requirement?

Written consent is not required under the new law if (1) the pelvic examination is mandated by court order for the collection of evidence, or (2) the examination is “immediately necessary to avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the patient.”

Unless definitive guidance is issued to narrow the scope of the new law, the language should be interpreted to apply as broadly as it is written. If you have any questions regarding these requirements, please contact the Johnson Pope Health Care Team.

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.