Information on Informed Consent

Informed consent is a process where a physician advises a patient of the risks of surgery or certain other medical procedures and the patient has the opportunity to choose to proceed while aware of the risks. A physician engaged in the process of securing a patient’s informed consent discloses material risks, potential complications, and alternatives to the planned procedure.

A physician’s obligation to seek a patient’s informed consent is not broad, and a recent Pennsylvania case clarified the doctrine of informed consent and concluded that chiropractors have no obligation to seek their patients’ informed conSent.

In the case involving the chiropractor, a woman suffered a massive stroke following a series of cervical manipulations during chiropractic treatment. The stroke left her in a “locked in” state, where she was fully conscious and cognitively aware but unable to move any body part except her eyes. After 18 months, she died of a serious infection.

Her estate sued the treating chiropractors, claiming that the stroke had been caused by a vertebral artery dissection, and further claiming that the dissection had been caused by the cervical manipulation. One of the estate’s theories was that the woman was entitled to have been advised of the risks of the cervical manipulation prior to the procedure. In effect, the estate demanded that the woman have been given the opportunity of informed consent.

The Pennsylvania Superior Court disagreed, citing a long history of the clear limitations of the doctrine of informed consent. Historically, informed consent has been required only of physicians, and only as to surgical procedures. The development of the doctrine was limited to surgical procedures because it arose at a time when surgical procedures were very inherently risky and when moving a patient’s treatment to the level of surgical treatment was a significant decision. Before invading a patient’s body and rendering the patient unconscious, physicians not faced with a compelling emergency were legally required to secure the patient’s informed conSent.

As surgery became more commonplace over the years, and as other medical decisions became more complex, appellate judges started to question the confinement of informed consent to Surgical procedures. The Pennsylvania legislature stepped in and extended the requirement of informed consent to some additional medical procedures performed by physicians, including blood transfusions, radiation, chemotherapy, the insertion of medical devices and appliances, and “experimental” medicine. Presently, informed consent remains associated with surgical procedures and with those additional procedures legislated by statute.

In the case involving the chiropractor, the Pennsylvania Superior Court denied the claims of the Woman’s estate on two theories. First, the court affirmed the longstanding judicial limitation of the doctrine of informed consent to matters involving Surgery. The court also noted that the judicial doctrine applies to physicians and not to chiropractors.

Next, the court reviewed the legislative extensions of the doctrine of informed consent to the short list of medical procedures performed by physicians and noted that the legislative extensions of informed consent also applies only to physicians. Reluctant to abruptly extend the judicial doctrine to chiropractors, and having no authority to extend the legislative provisions, the court held that the deceased Woman was not legally entitled to any advice about the risks of cervical manipulation prior to undergoing the procedure.

All patients and physicians can negotiate and define the terms of their relationship. Any patient can request information about his or her health care, and if not satisfied by the depth of the provider’s advice, the patient can decline treatment. The doctrine of informed consent formalizes that process when a surgical procedure or the additional procedures included by the legislature are involved. Typically, where informed consent is required, patients sign detailed documents acknowledging their understanding of the risks. Any patient undergoing chiropractic treatment, or any patients receiving general medical treatment, should assume that the treating provider has no legal obligation to initiate discussions of the risks of the procedures. And in the absence of a written informed consent agreement, a patient should presume that the health-care provider is not legally obliged to engage in a disclosure of informed consent. Patients who desire information on risks and options should initiate the discussion.