Kern v. Forest, 2010 BCSC 938
July 28, 2011- The Claimant saw her family doctor complaining of left shoulder pain. Her family doctor referred her for chiropractic treatment and she was treated by two chiropractors. After the treatments, the Claimant was diagnosed with spinal cord compression, caused by a herniated cervical disc. A neurosurgeon performed a discectomy and removed the herniated disc. The Claimant continues to have substantial pain today and is unable to work. She sued the chiropractors.
The Judge concluded that the Chiropractors had failed to properly inform the claimant of the risk of suffering a herniated cervical disc from the treatment. Although the issue of informed consent arises most often in the context of the physician-patient relationship, the judge concluded it is well established in British Columbia that other health care professionals have a similar duty of disclosure in respect of treatment and procedures that they perform.
Generally speaking, a patient is entitled to be informed of the following:
1. The purpose of the treatment.
2. The benefits of the treatment.
3. The known consequences.
4. The possible risks.
5. The form of treatment.
6. Alternatives to this treatment if they exist.
7. Possible consequences of the refusal to accept the recommended treatment.
The judge found the written consent form to be inadequate. There was no description of alternative treatments. It minimized the risks involved: “Some very slight risks to treatment, including, but not limited to, muscle strains and sprains, disc injuries and strokes” (emphasis added). There is no explanation of the consequences if the risk of disc injury materialized. The evidence fell short of establishing that Ms. Kern was fully informed. In light of the inadequacy of the consent form, merely ensuring the patient understood what was said on the form is similarly inadequate. Here, there has been a failure to adequately describe the possible negative consequences of the treatment.
However, the injury claimant must establish that if she had been fully informed of all the risks she would not have proceeded. The judge found that the claimant, despite the risks, would have had the treatment anyway. The judge also found that the treatment was the cause of the injury but concluded that the chiropractors were not negligent and were not in breach of the applicable standard of care. The judge aptly distinguished between Clinical Guidelines for Chiropractic Practice in Canada, which are guidelines, and the applicable standard of care. The claim was dismissed.
In November, 2010 this case was considered in a successful Alberta personal injury case against a chiropractor (Malinowski v. Schneider,  6 W.W.R. 673) in which the claimant was awarded $158,000.00 for pain and suffering. Posted by Mr. Renn A. Holness
Issue: Should claimants have to prove that they would not have attended the treatment that injured them had they known of the risks?