Do you have a valid ‘informed consent’?
By Steven Conway, DC, Esq.

Until recently, I did not ask my patients to sign an informed consent form. When I began to see a number of news stories about cerebral vascular accidents, I decided to modify my office procedures. I now have my new patients sign an informed consent form when they complete their other intake forms. Am I now fully covered for any liability or should I be doing something extra?

Having new patients sign an informed consent form should be a standard procedure in every chiropractic office. Remember, though, that you may have to repeat this procedure for patients returning to your office at a later date, if their current condition is different from their original complaint.

Your procedural question brings out an important point that needs to be emphasized.

Signing the form as part of your intake process does not provide the proper mechanisms or procedures to allow the patient full disclosure of the risks and benefits of your proposed treatment. Although the form may outline the generalized risks of chiropractic care such as CVAs, a patient’s signature is no guarantee that he or she has read or understood the information on the form prior to signing it.

It may become just another form that the patient signs during the intake process.

Consequently, having a signed informed consent form without actually reviewing and discussing the information with the patient devalues the validity, purpose, and limited protection of the form.

For the patient’s consent to be valid, you, the doctor, need to review with the patient the six basic elements that should be included on an informed consent form. These six elements are:

1. The patient’s diagnosis/condition and the proposed treatment, modality, or procedures for correction;

2. The relevant risks and benefits of the proposed treatment, modality, or procedures;

3. Alternative treatment or procedures that are available to the patient and the relative risks, benefits, and uncertainties related to each alternative;

4. The risk and/or benefits of not receiving or undergoing any treatment or procedure;

5. The assessment of the patient’s understanding of the information provided; and

6. The acceptance by the patient to undergo the recommended treatment, modality, or procedure.

In addition, the patient needs to be competent and the consent must be voluntary in order to be valid.

How much information does a full informed consent form need? Three basic standards determine the amount. The most consistent of the three standards is the “reasonable patient standard.”

This standard requires sufficient information that the average patient would need to know and understand in order to be an informed participant in the decision. You are not required to make the patient a mini-chiropractor; you just have to provide enough information so that the average person would say, “I get it and understand the risks involved.”

The other two major standards are the “reasonable physician” and “subjective” standards.

Both have properties that make them less advantageous than the reasonable patient standard. I mention them to alert you that your specific state may have one of them as the standard you need to follow.

Review your state statutes or legal case law to identify which standard is appropriate in your specific case.

To further protect yourself if a liability claim should occur with a patient, document the oral communication process and file the document in the patient’s records.

Include in this documentation that you:

1. Met face to face with the patient;

2. Reviewed each of the components listed above with the patient;

3. The information reviewed is contained within the informed consent form;

4. The patient was competent and understood the information; and

5. The patient voluntarily signed the associated informed consent form.

I would recommend modifying your office procedures to a more appropriate system. This would include providing patients with an oral presentation of the risk, benefits, and alternatives for their condition and your treatment, and then having them sign the informed consent form.

These proposed modifications will provide you with a valid informed consent and the associated benefit should a liability claim be filed.

Steven Conway, DC, DACBOH, Esq., is a partner in True North Chiropractic Consultants LLC, which provides guidance and ethical solutions to the barriers found in chiropractic practices. He can be contacted through truenorthchiropracticconsultants.com or by e-mail at chirolaw@aol.com.

DISCLAIMER: This column is provided for educational purposes only. The accuracy or timeliness of the information presented is not warranted. The information is not presented as legal advice and no attorney-client relationship is established.