Issue 14 - November 2003

Ask the attorney
The difference between malpractice and lack of informed consent
By Deborah Green, Esq.

Q - A long-standing patient came in the other day and said that she had heard that chiropractic care could cause her to have a stroke. I told her not to worry about it. My associate said that this patient could sue me for malpractice. Is he right?

Your associate is confusing “malpractice” with “lack of informed consent” or “no consent” — all of which can get you into trouble, but for different reasons.

A malpractice suit generally occurs as a result of a chiropractor’s failing to exercise the degree of care, knowledge and skill expected of the average chiropractor in that particular community resulting in injury to the patient. A key element is injury to the patient.

A lawsuit based on a lack of informed consent is a form of malpractice although it does not require the chiropractor to have committed actual malpractice as defined above.

If the chiropractor performed brilliantly but the patient was injured, the basis of the claim against the chiropractor would be that the chiropractor failed to get valid permission from the patient to treat her by not explaining all the risks to her.

The basis of the lawsuit would be that had the patient known of all the risks, benefits and alternatives, the patient would not have agreed to the procedure and would therefore not have sustained the injury.

Treating a patient with no consent may be construed as a battery and subject you to civil and possible criminal liability. Valid informed consent will differ depending upon your state. Generally, two standards exist: the professional standard and the patient-centered standard.

For instance, New York follows the “professional standard,” which requires the chiropractor to disclose any “reasonably foreseeable risk” that a “reasonable” practitioner would have disclosed.

The majority of states follow the “patient-centered” standard, which requires that a chiropractor must disclose the risks that a “reasonable patient” would want to know.

Ms. Green is a practicing attorney in New York and Florida and is a member of the American Health Lawyers Association, the New York State Bar Association Health Care System Design Committee, the New York State Bar Association Health Care Providers Committee, the American Bar Association Health Law Section and the Florida Bar Health Law Section.

If you require clarification on these questions or have any questions of general interest on other legal healthcare issues, please contact the law office of Deborah Green. Her number is 954-236-8282; fax, 954-236-6939; or e-mail, healthattorney@aol.com.

LEGAL DISCLAIMER: This column is provided subject to and governed expressly by the terms of this disclaimer. This column is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted. The information presented herein is not intended to be advice as to a specific fact pattern with which you may be presented. Accordingly, please note that the information contained herein is not being presented as legal advice with respect to any matter and that no attorney-client relationship is hereby established.