Be informed about chiropractic informed consent

Apply these tips to secure your practice against legal challenges with chiropractic informed consent

Insurance policies protect us from financial losses that may result from damage to the insured or their property. The insurance policy is a document that is further strengthened by decisions and actions pertaining to the risks we face. We typically do not think about these actions and risks until the threat becomes real. Chiropractic informed consent acts as an additional insurance factor in risk-management procedures. If inadequate or left undone, the consequences of a faulty informed consent may cause stress and financial losses.

Assessing risks and benefits

Risk management must be based on sound principles. In the legal realm, our actions are guided based on the “Standard of Care” in particular situations.

Standard of care is defined as “that which a minimally competent physician in the same field would do under similar circumstances.”¹ As chiropractic physicians, we must rely on scientific evidence and best-case practices to guide us in our decision. Assessing the risk and benefits of treatment and acting in the best interest of our patients is a daily occurrence. Our patients look to us to make sound decisions based on fact and not opinion.

Patient-informed consent is a method to document a patient’s acknowledgment of their understanding of the risks, alternatives and possible benefits of any treatment they receive. Informed consent in health care is the law, codified by the 1914 Schloendorff vs. The Society of the New York Hospital case. The evolution of the informed consent has occurred throughout Common Rule, but also in requirements from state to state. Informed consent is also an important ethical consideration for doctors and health care providers.

In chiropractic informed consent, the patient jointly participates in the accepted risks and benefits of the recommended treatment. All treatment comes with certain benefits and risks. We must weigh those benefits and risks against other alternative care and the benefits and risks presented in those alternatives. Patients can then make an educated decision about their treatment. Once the patient is aware of the facts, they give their consent to proceed.

In most cases, chiropractic treatment poses little risk to the patient. In other cases, unforeseen issues may be at hand, thus, unforeseen circumstances may occur. In an informed consent, we must provide inherent or foreseeable risks of treatment and alternative treatment options. Patients must be given enough time to weigh these intrinsic risks, consider their options and seek a second opinion, if appropriate. In addition, patients also must consider what may occur if no treatment is rendered.

Elements of informed consent

The Joint Commission requires documentation of all the elements of informed consent “in a form, progress notes or elsewhere in the record.”² The following are the elements needed for documentation of the informed consent discussion:

1. the nature of the procedure;
2. the risks and benefits of the procedure;
3. reasonable alternatives;
4. risks and benefits of alternatives; and
5. assessment of the patient’s understanding of elements 1 through 4.

It is the obligation of the provider to make it clear the patient is participating in the decision-making process and avoid making the patient feel forced to agree with the provider. Merely stating that you discussed the inherent risks does not prove it was actually done. The informed consent document must provide information. The amount and content of the information is typically controlled by state statute. The provider must make a recommendation and provide their reasoning for said recommendation.

Minors (typically under 18 years old) cannot provide informed consent. Therefore, the parent or legal guardian must give informed consent for most medical decisions on behalf of the child. In this case, it is not “informed consent” but rather “informed permission.”

An exception to this rule is a legally emancipated child who may provide informed consent for themselves. The laws vary from state to state, but the general approach to defining examples of an emancipated minor includes minors who are:

1. under 18 and married;
2. serving in the military;
3. able to prove financial independence; or
4. mothers of children (married or not).

One should be aware of their state’s requirements, if any, for chiropractic informed consent. Sources would be the Board of Chiropractic Examiners’ websites, state associations, or information provided by your malpractice carrier. When guidance is unclear, document your good-faith effort to achieve compliance. In general, the informed consent utilized should include:

1. describing the proposed treatment;
2. emphasizing the patient’s role in decision-making;
3. discussing alternatives to the proposed treatment;
4. discussing the risks of the proposed intervention; and
5. eliciting the patient’s preference (usually by signature).

Frank discussion of the inherent risks between the provider and the patient is crucial. Documentation should indicate that there was a discussion, what risks were discussed, if the patient asked questions and the answers given, and the permission to proceed. Additionally, many consent forms express that there are no guarantees that the proposed procedure will provide a cure to the problem being addressed.

Chiropractic informed consent and risks of treatment

Thankfully, risks associated with chiropractic treatment are relatively low and minor. The most common side effect of manipulation is muscle soreness.

However, the manipulation is still a medical procedure that carries a certain amount of risk, although uncommon. Patient safety is a significant focus in patient care, and an effective informed consent is considered a patient safety issue.

It is the physician’s responsibility to assess the particular risks of treatment to the patient, the patient’s ability to comprehend the information presented, and whether the patient can make an independent, voluntary decision. Some consent forms may contain language that is at a reading level too advanced for many patients to comprehend. In this case, the use of visual communication tools should be considered. Patients should be actively engaged in the discussion to enhance communication and ensure patient safety and understanding.

Do not leave yourself open to legal challenges

The patient’s signature is proof of an indication of this understanding and decision. The patient’s name or legal representative’s name, signature, date and time are recommended as part of the minimum elements. Merely having a paragraph in your intake forms bearing no signature or just initials may not survive the test of a legal challenge.

Including risk management, compliance and ethics in your policies and procedures makes good business sense. Ask the appropriate questions and follow federal and state guidelines in your chiropractic informed consent. Following the government and state guidelines on risk management will further protect you from financial losses, increased stress and adverse legal decisions.

MARIO FUCINARI, DC, CPCO, CPPM, CIC, is a Certified Professional Compliance Officer, Certified Physician Practice Manager, Certified Insurance Consultant, and a Medicare Carrier Advisory Committee member. As a member of the Foot Levelers Speaker’s Bureau, he travels throughout the year to share his expertise with audiences across the country. Contact him for classes such as Medicare, documentation, coding, examination or rehabilitation training. For further information, you may email him at Doc@Askmario.com or check his website at Askmario.com.

REFERENCES

1. Hall v. Hilburn, 466 So. 2d 856 (Miss. 1985).
2. “Informed Consent,” Parth Shah, Imani Thornton, Danielle Turrin, John E. Hipskind, StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2022 Jan.2021 Jun 14.