Powerful Medicine; a dimension of the Nassar case

Posted on January 27, 2018 by

I want to start this post with a really clear content notice; if you’re uncomfortable with or likely to be triggered by descriptions of sexual assault, you may want to gird yourself or take a pass on this post entirely. I experienced nausea myself in reading the accounts, but I don’t think it is really possible for me to get to the most important points of this post without some level of detail in the description.

One of the most important stories in the news is the recent conviction of Dr. Larry Nassar (though he has since lost his license, the title is very important to this post). It has drawn an appropriately severe criticism of oversight mechanisms in youth sports, the role of USA Gymnastics and Michigan State University in protecting him, the failures of our society generally to address even the most egregious instances of sexual violence, prospective institutional liability, and the resignations of officials at many of the impacted institutions. It has drawn attention to the profound and disturbing victim’s impact statements and discussion of the behavior of Judge Aquilina in presiding over sentencing.

I’m not going to talk about any of that; not because I don’t regard it as important (it definitely is important), but rather because there is something else that so many accounts of this discussion miss. It is something that we see in theoretical discussions in bioethics, and is deeply important for addressing and preventing many future predators like Nassar.

Along with the Indianapolis Star, some of the best reporting on this story (especially in recent weeks) has been conducted by ESPN’s Outside the Lines. Their most extensive report on enabling includes notes that Nassar was investigated following reports of sexual assault from patients on several occasions. I want to draw attention to one particular passage, about spring of 2014. (Nassar wasn’t arrested until 2016.)

“[Dr. William Strampel, who has since resigned as dean of Michigan State’s College of Osteopathic Medicine, Nassar’s then-employer] was at home when he received a call telling him that a student had accused Nassar of assaulting her, massaging her breasts and vaginal area when she visited him for a hip injury. The day of her one and only appointment with Nassar, the woman told a receptionist and another doctor at the sports medicine clinic she “felt violated.” Strampel told the detectives he suspended Nassar from seeing patients indefinitely the following afternoon and let law enforcement and the school’s Title IX office take over from there.

The university’s police department opened a criminal investigation. The university’s Title IX department interview four experts to evaluate the complaint, all of whom had ties to Nassar.

Among the four was Dr. Brooke Lemmen, a fellow physician who was viewed by colleages as a close friend and “protege” of Nassar’s. She told the Title IX investigators in the spring of 2014 there was nothing sexual about the treatment Nassar administered. The other three experts agreed with her opinion and decided that the complainant didn’t understand the “nuanced different” between medical procedure and assault.

Lemmen resigned under pressure last January. She faced allegations that she had failed to tell her bosses that Nassar had told her–in 2015–he was being investigated by USA Gymnastics for suspected abuse… She was also accused of removing some of Nassar’s patient files from the sports clinic after he was fired by MSU in 2016.”

There are two features of this that stand out from the standpoint of medical ethics. Setting aside that the Title IX investigators were too incompetent or indifferent to concern themselves with finding an unbiased expert, four experts gave the opinion that a massage of the breasts and vagina were appropriate treatment for a hip strain.

Some have noted that Nassar was a practitioner of osteopathic medicine, which differs in many respects from standard medical practice. (I’ll come back to this point in a bit.) I’m not as familiar with the standards of osteopathic medicine as with standard procedures; some diagnoses for hip pain might involve some cursory massage, but it is unlikely that direct massage of the vagina (as the patient describes) would be appropriate and it is totally implausible (so far as I can tell from some research) that it would be appropriate to massage the breasts. (The only listed exception I’ve been able to find is in the case of certain effects of pregnancy; the patient wasn’t pregnant.) And, in either case, the fact that Nassar’s approach was to administer this without clearly outlining this with the patient shows a clear disregard for best practices in consent.

Osteopathic medicine, unlike some of the other “pathic” medicines, is recognized by the American Medical Association. While some are put off by the fact that Nassar and Lemmen never had the letters “M.D.” after their names, instead having a Doctor of Osteopathic Medicine or “D.O.”, this isn’t really relevant. They were both able to engage in the same clinical practice and required to adhere to the same ethical standards by their national licensing body and/or state licensing board. As far as I can tell from some online research, Lemmen is still in clinical practice in Michigan.

How is it that the experts who were asked to review this case have not been subject to their own review in virtue of their bad judgment? Perhaps they simply failed once in their judgment (though, given the circumstances of Lemmen’s resignation, that is unlikely), but this still seems like a reason to raise concerns over their various practices.

From the mid-90s until Nassar’s arrest, there were a number of professionals that looked at the standards for his “exams” and decided that it was not criminal. There will, and should be, criticism directed at the institutional failures within the major organizations, but there hasn’t been much on the failures of medical professionals to raise concerns about Nassar’s “practice,” and this is damning of either the competence or ethics of those professionals. (And, whether they were incompetent or unethical in their handling is not an especially important difference in sight of the fact that many continue to practice.)

This opens a question of professional ethics: what are the obligations of medical professionals to pay attention to the behavior and practice of their colleagues? What are the consequences for failing to pay adequate attention, or prevent harm in those circumstances?

The exact strength and scope of these questions are complicated, to be sure, but there surely should be some expectation here.

There is a more pressing general point here. Medical professionals are widely trusted; they do good work and often help us in ways that significantly improve our quality of life. In some circumstances, they save our lives. There is a lot that is admirable about the profession, but the power associated with the profession puts it in a worrisome position for abuse. Medical professionals have a long history of abusing the trust of their patients and medical knowledge. (I could go on and on with such stories, but have limited it to a few cases that capture the scope of the problem in research and clinical practice.)

At the risk of sowing some confusion (and trying immediately to clear it up) the French theorist Michel Foucault writes in The Birth of the Clinic (see the end of Ch. 3; emphasis in original):

It is often thought that the clinic originates in that free garden where, by common consent, doctor and patient met, where observation took place, innocent of theories, by the unaided brightness of the gaze, where, from master to discipline, experience was transmitted beneath the level of words. And to the advantage of a historical view that relates the fecundity of the clinic to a science, political, and economic liberalism, one forgets that for years it was the ideological theme that prevented the organization of clinical medicine.

It is not merely that, as a historical fact, medical practice has developed through and dependent on the power relations between the doctor and patient; the doctor has the power to heal the patient, and therefore power over the patient. It is also that the asymmetry of this power relations brings about a freedom of the doctor to do what they regard as best, often with relatively limited input from the patient. (The movement towards informed consent is fairly recent and, unfortunately, the ability of patients to confer informed consent is limited both by the background information accessible to the patient and the ability of the physician to communicate to, and thereby adequately inform, the patient.)

After all,

the complainant didn’t understand the “nuanced different” between medical procedure and assault.

At various points in his practice, Nassar violated best standards and practices in consent and hygiene; these assaults resulted in vaginal bacterial infection and pneumonia for at least one patient, and vaginal tearing for many others. And yet, various complains to this effect were set aside on account of the expertise and standards of “the good doctor.” (Characterized by the results perceived by his superiors at MSU and USA Gymnastics, not by his patients.) And this is the problem.

I don’t mean to suggest in any way that this is a radical view of medical ethics; Arthur Kaplan has been working on these issues for years. It is increasingly important to the discussion, and the various practical questions of how to build accountability is an ongoing discussion, but it is important to keep in mind that cases like Nassar (and there are, I am sad to say, many cases of physicians who similarly abuse their power) are a primary motivation, and should see wider discussion.