As discussed in a prior blog post, informed consent is often a significant issue with a number of medical malpractice claims involving not only doctors, but also non-medical doctors such as chiropractors, physiotherapists, massage therapist and acupuncturists. Because most medical procedures involve some level of risk, all medical practitioners have an obligation to fully inform their patients about the procedure and the associated potential side-effects and complications so that they can make an informed decision about whether or not to proceed. This is known as informed consent.
To obtain informed consent from a patient, medical practitioners must disclose and explain the following to their patients before performing the procedure:
- The nature of the treatment, its gravity, and any associated risks that would want to be known by a reasonable patient
- The frequency or statistical chance of a material or special risk arising
- The nature and severity of the injury that could ensue
Another critical issue is medical negligence causation. The medical practitioner’s negligence must be found to have caused the patient’s injury and resulting damages. The question the court will ask is whether the patient would have suffered the loss but for the medical practitioner’s negligence.
A chiropractor’s negligence in relation to informed consent was considered in Dickson v. Pinder 2010 ABQB 269.
In that case, the injured claimant attended a chiropractor due to neck pain and a headache. When she attended for an appointment, the chiropractor manipulated her neck using spinal manipulative therapy and she heard a popping sound. Although the original pain resolved, she felt a different type of pain following the procedure. The pain worsened that evening where she felt a searing pain behind her left eye. She went to the emergency room where she learned she had suffered a stroke. She sued the chiropractor in negligence alleging that he failed to obtain her informed consent to the procedure.
The court reviewed the evidence concerning whether the chiropractor obtained informed consent from the injured claimant prior to the procedure.
The injured claimant testified that she had never been to a chiropractor before. She had little knowledge of what chiropractors did. When she arrived at the clinic, she felt rushed. She was provided with a document to sign titled “Informed Consent to Chiropractic Treatment”. She was then escorted to the examination room where she first met the chiropractor. She could not recall if he reviewed the form with her. She did not recall what he told her about the procedure. They reviewed her history and then she authorized him to treat her neck. She testified that if she had known there were other alternative forms of treatment available to her, she would not have proceeded with the procedure. She also testified that she did not even understand what a stroke was or the seriousness of it before she underwent the procedure.
The chiropractor testified that he could not recall the injured claimant or the procedure specifically. Therefore, he testified about his clinic’s general procedures. He stated that he, not his staff, was responsible for answering any questions that patients have relating to the consent form. After meeting with a patient and performing a physical examination, he would explain the treatment he proposed and the risks involved in the treatment. He knew that it was his duty to inform his patients of all risks, no matter how slight. He testified that he “always” discussed risks with his patients. The procedure he performed on the injured claimant is one where he always advises his patients of the risk of a herniated disc, rib fracture and stroke. If the patient was comfortable with the Informed Consent Form, he would simply ask whether they had any questions. He would explain the proposed procedure and then ask if the patient would like to proceed with the treatment. He would not discuss alternative forms of treatment.
On the issue of informed consent, the trial judge concluded on the evidence that by not explaining the characteristics and consequences of a stroke, the chiropractor failed to disclose sufficient information to allow the injured claimant to make an informed decision. He further breached his duty of disclosure in not discussing treatment alternatives to “spinal manipulative therapy”. However, the claim was ultimately dismissed on the basis that the injured claimant did not establish causation in that there was expert evidence that she suffered a stroke due to other reasons and not the procedure.