Araceli Gomez-Aldana: In separate cases in Illinois, dozens of women have accused their OBGYNs of committing medical and sexual battery while undergoing medical exams. Here to talk about what happens when a woman accuses her doctor of sexual assault is Jody Madeira, a professor and Co-Director of the Center for Law, Society and Culture at Indiana University’s Mauer School of Law. Jody, thanks for being here. 

Jody Madeira: Thank you so much for having me.

Araceli Gomez-Aldana: Jody, in situations where person goes to see an OBGYN and feel like maybe the doctor did something outside the scope of what you would consider standard care, or simply they just felt they were touched inappropriately or made to feel uncomfortable, legally speaking what are their options?

Jody Madeira: So I think that the first thing one needs to do one in this very unfortunate traumatic situation is just write down what happens, right? You get what happens down on paper in a form, or preferably on a computer where it can be saved and brought up just to, number one, decipher if there's a pattern. Number two if you hear of something with this provider in the news, perhaps, creating a contemporaneous record is very important, it establishes accountability and legitimacy and helps substantiate claims. Also, I think that it might help to reach out to an attorney, a medical malpractice attorney comes to mind. And you know, just talk through what happened. The third thing we can do is get their medical records. And fourth, it's always possible as well to make a complaint to the medical licensing board in the state in which the position practices.

Araceli Gomez-Aldana: So should patients in this case go talk to the hospital, should they call the police or first go to the lawyer?

Jody Madeira: So I think that they should go to the lawyer first because you don't know if what has happened is a crime. So I would not want to approach a hospital as a patient until I knew that I had someone in my corner who was backing me up, who was listening to me. Who had told me that what had happened was wrong, was a legal tort or medical malpractice for a crime such as sexual assault. And I would want that person to go with me.

Araceli Gomez-Aldana: One of the things that I always think about is when we go see our doctor, we have to fill out all these forms and essentially we give them consent to touch us, right? So how, how is this different?

Jody Madeira: So I think that this is largely a gut feeling and often times, I think we as patients, particularly female patients don't trust our gut. And so when we go in to talk with a doctor, to be examined by a doctor, the consent we give is limited. It is for a clinical touching, not a sexual touching, not a touching that is in any way non therapeutic. And of course, any touching that is delivered that is not therapeutic, that is meant for the physician's gratification is not a touching to which we consent as patients.

Araceli Gomez-Aldana: And I can imagine that this is when that gray area kind of comes in because as an attorney, you know, can you legally defend, say a gut instinct or when somebody says they feel uneasy, you know, how does that translate to a legal argument? 

Jody Madeira: That's a great question. So I think that often that feel leads us to realize that there are things that are wrong, that there are touching, that are wrong, that there are comments that are wrong. They lead us to larger patterns. They can't be the end all and be all just in and of themselves. You can't prosecute someone based on a feeling, for example. But they're often the indication that hey, something is wrong here. This does not feel right. And I think that, you know, they opened the doors to greater deeper understandings of patterns. Take, for example, the Me Too movement. These women who were victimized by these harassers, perpetrators, you know, predators, had sometimes only feelings to go on until greater harms occurred. And so if we consistently have, for example, as female patients, that a certain provider is creepy, if the doctor caresses our arms and tells us how good we look and that has nothing to do with what we're there for, for the physical examination, for the procedure that we're there for, that might be a warning sign that we might want to get out of the doctor patient relationship and find another provider if we can, who does not do that. That does not raise that gut instinct. So that's, you know, another important part of those feelings.

Araceli Gomez-Aldana: That's Jody Madeira, Professor at Indiana University's Maurer School of Law. Thanks for joining us.

Jody Madeira: Thank you so very much.

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