The Legal Implications of Informed Consent in Chiropractor Malpractice Cases.
Background
The plaintiff, Lisa Kern, saw Benjamin Yokoyama, her doctor, in September 2003 and complained of soreness in her left shoulder. On October 3, 2003, she went to the Maple Ridge offices of Forest Chiropractic Inc. after being referred by Dr. Yokoyama for chiropractic care.
Kern received care from doctors Margaret Forest and Johanna Thomas, two defendant chiropractors who routinely practiced there. She also received care from Dr. Amynah Somani, a locum that the company employed to fill in for Dr. Forest while he was away.
Following the treatments, the plaintiff was diagnosed with spinal cord compression brought on by a herniated cervical disc. On November 3, 2003, a neurosurgeon carried out a discectomy to get rid of the herniated disc. Ms. Kern claimed that she was still experiencing a lot of discomfort and that she could no longer work.
Kern argued that the defendants did not obtain informed consent for her treatments and alleged that the chiropractors treated her negligently, resulting in severe bodily harm.
Findings
When brought before the Supreme Court of British Columbia, the judge tested for professional negligence according to Keane v. Adams, stating that the plaintiff must prove four elements:
- A duty of care owed by the defendants to the plaintiff
- The defendants’ breach of duty of care and failure to meet the required standard of care
- The plaintiff suffered damages
- Damages caused by defendants’ breach
The defendants argued that the plaintiff had a pre-existing condition and that the care provided was appropriate and not sufficient to cause the plaintiff’s condition. The
Court concluded that Kern’s symptoms were aggravated by the treatment but that the defendants did not breach the applicable standard of care.
Regarding informed consent, Kern argued that the consent form provided to her mentioned the risks associated, but that it minimized the effect of the consent. The Court found that the written consent form was inadequate and that it did not describe any alternative treatments available to the patient.
The Court also determined that the form minimized the risks involved, not explaining the potential consequences of treatment. However, after considering the presented evidence, the Court concluded that had the plaintiff been fully informed of the risks and alternatives, she would have proceeded with the treatment anyways.
Ultimately, the Court dismissed the plaintiff’s claims, finding that the defendants met the appropriate standards of care and that they were not negligent in their treatment of Ms. Kern.
Read the full case here.
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From CanLII