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    Thursday, October 02, 2003

    Beware of Experts: Especially if they're getting paid for their trial testimony. Here's a gynecologist who's being sued for sexual harassment for what the expert witness for the plaintiff says is unorthodox medical care:

    Tugging a woman's nipple during a breast exam is "like milking a cow," a doctor testified Monday in the continuing sex-abuse trial of Phoenix gynecologist Brian Finkel.

    "It's never done," testified Dr. Sidney Weschler of South Dakota during the eighth week of Finkel's trial.

    But something similar to that is done during a breast exam to check for nipple discharge.

    Finkel also is accused of performing unnecessary rectal examinations on two patients.

    Weschler acknowledged under cross examination that he taught students that no "pelvic examination is complete without a rectal examination." However, he said it is a "teaching standard that is rarely applied" in practice. Rectal exams are typically done only on women age 40 and older to check for diseases, he said.

    If rectal exams are a "teaching standard rarely applied" at the expert witness's medical school then those medical students aren't getting their money's worth. Rectal exams are done during pelvic exams to palpate the back of the uterine wall and other masses that may be lurking behind the uterus. Under different circumstances and in the hands of a different attorney, not doing a rectal exam could be construed as negligent.

    He also testified that touching certain parts of the vaginal area during an examination is unnecessary because most abnormalities are obvious. Some women have testified that Finkel manipulated their vaginas during exams.

    It may be true that "most abnormalities" are obvious, but there are also plenty of abnormalities that are only detectable by touch. In addition, a thorough visual inspection of the external genitalia requires that flaps of skin be moved out of the way.

    Context is everything, of course, and maybe the doctor did some inappropriate touching, but on the basis of this story it looks as if he's guilty of nothing more than doing a more comprehensive examination than most of his colleagues take the time to do.

    UPDATE: The Bloviator says that I'm being coy:

    You fail to mention that the doctor has 60 counts of assault and abuse charged against him by 35 different patients. That's a pretty important piece of information. Your post makes it seem as if this was a one-time misunderstanding. Apparently, this guy has frequent misunderstandings with his patients.

    Had the physician had a better "bedside manner," explaining thoroughly to the patient prior to conducting the exam what exactly he was going to do and why he was going to do it, and documenting that such a conversation took place in the medical record, he likely could have avoided such a situation. Also, it's unclear whether the physician had an opposite-sex assistant in the room at the same time (which also tends to reduce lawsuits). These types of harassment-oriented cases (inappropriate touching) tend to arise only in two situations:

    (1) when the physician and patient are on different pages about what is/should be done (meaning: a poor informed consent discussion - and even then they don't tend to come up unless the doctor comes across as a little creepy); and

    (2) when the doc is really trying to get away with stuff he shouldn't be doing.

    He has more on his blog, just scroll down since the archive links are, of course, bloggered. Although he makes good points about the importance of communication during sensitive examinations, he misses the point of my post. It isn't about whether or not the doctor is guilty. It's about the quality of the expert witness testimony. "It's never done" (regarding manipulating nipples during a breast exam), rectal exams are "teaching standards that are rarely applied," and that touching the genitalia is "unnecessary because most abnormalities are obvious," are all statements that are simply not true. And the expert knows it, as does anyone who paid attention in medical school.

    Based on that testimony, anyone doing a thorough exam would be accused of harassment. Think it doesn't matter because it was only part of a court case? Think again. Plenty of women have now read the testimony in their local newspaper. And just what are they going to think when their physician performs an appropriate breast and pelvic exam? Chances are, after reading that expert's perceived wisdom, they're going to be suspicious - even if their doctor does the appropriate explaining.


    posted by Sydney on 10/02/2003 07:33:00 AM 0 comments


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