As discussed in a prior blog issue on Medical Malpractice and Informed Consent, most medical procedures involve some level of risk. All risks such as potential side-effects and complications must be disclosed to patients by the medical practitioner before the procedure takes place. This information allows patients to make an informed decision about whether or not to proceed. This is known as informed consent.
Information to be Disclosed to Patients
Patients must be informed of the following before undergoing a medical 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
Challenges to Informed Consent
Providing patients with relevant information is not the only challenging part of obtaining informed consent. The patients must also understand what they have been told. Difficulties with comprehending the risks associated with a procedure can arise in a number of different situations. For example, a language barrier may exist between doctor and patient. In addition, there is the inherent complexity of medical terminology that most non-medical individuals do not understand. There is furthermore stress and anxiety around some medical procedures which undoubtedly cause added difficulty with comprehension and understanding.
Despite these difficulties, medical practitioners have a duty to take reasonable steps to ensure that patients understand what they are told. What is considered a “reasonable step” will depend on the circumstances of each case.
Chiropractor Negligence – Lack of Informed Consent
In Loffler v. Cosman 2010 ABQB 177, the injured claimant brought a claim for injuries against his chiropractor as a result of a herniated disc he suffered from a chiropractic manipulation to his neck. The injured claimant alleged that the chiropractor was negligent in several regards. One allegation was that he did failed to properly obtain informed consent.
As it related to the issue of informed consent, the injured claimant argued that the chiropractor did not satisfy his duty by simply providing him with an “informed consent form” setting out details on the treatment and associated risks without any explanation or discussion. He testified that he simply scanned the form not believing it pertained to him because he was not seeking chiropractic care for an accident or an injury. He also stated that he believed the form was a formality that needed to be signed. He furthermore testified that he did not understand the meaning of certain words used in the form.
The chiropractor testified that his practice was to instruct his receptionists to tell patients that if they had any questions regarding the informed consent form, they could ask him. If the patient signed the informed consent form and did not ask any questions, his standard practice was to verify that the form had been signed following which he would continue with the procedure. The informed consent form signed by the injured claimant explaining the risks was also a standard form document provided by the regulatory body. As it related specifically to the injured claimant, the chiropractor confirmed that he explained the proposed treatment prior to administering it.
The trial judge concluded that the chiropractor was not negligent and that informed consent was properly obtained from the injured claimant on the following basis:
- The chiropractor was not required to explain the specific risk of a disc herniation because it was disclosed in the form the injured claimant signed
- The injured claimant was provided with an opportunity to ask questions about the procedure and the associated risks, but asked none
- There was no evidence that the chiropractor was aware or ought to have been aware that the injured claimant merely “scanned” the form and did not understand it
- The risks, including a risk of suffering a disc herniation, were clearly outlined in the informed consent form
- Based on his standard practice of relying on his receptionists to advise patients to ask questions regarding the form, the chiropractor was entitled to believe the injured claimant had read and understood the form because he did not ask any questions