Malinowski v. Schneider, 2010 ABQB 734

Court of Queen ’ s Bench of Alberta Citation: Malinowski v. Schneider, 2010 ABQB 734 Date: 20101126 Docket: 0403 01160 Registry: Edmonton Between: Ireneusz Eric Malinowski Plaintiff - and - Murray Schneider and Murray Schneider carrying on business under the firm name and style of Fort Chiropractic Centre Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I. BACKGROUND.....................................................................................................

Page: 4 II. ISSUES................................................................................................................... Page: 5 A. Preliminary Issue - Expert Evidence - Areas of Expertise - Specialist’s Testimony on Standard of Care of Non- Specialist.................................................................................... Page: 6 1. Dr. Kumar.................................................................................................... Page: 6 2. Other Expert Witnesses............................................................................ Page: 9 B.

Legal Test for Medical Negligence................................................................ Page: 9

III. DUTY OF CARE.................................................................................................... Page: 9 IV. STANDARD OF CARE......................................................................................... Page: 9 A. Standard of Care - Legal Principles - Chiropractor Standard of Care...... Page: 9 B. Informed Consent........................................................................................... Page: 10 1 Informed Consent - Law.......................................................................... Page: 11 a.

Risks of the Proposed Treatment.............................................. Page: 11 b. Alternative Treatments and Their Risks and Alternatives........ Page: 13 2. Informed Consent - Evidence................................................................. Page: 13 a. The February 26 Visit.................................................................. Page: 14 . ................................................................................................................. Page: 16 b. The February 27 Visit.................................................................. Page: 16 c.

Experts’ Testimony...................................................................... Page: 16 i. Dr. Carstensen................................................................. Page: 16 ii. Dr. Henderson.................................................................. Page: 17 3. Informed Consent - Analysis................................................................... Page: 18 a. Informed Consent Form.............................................................. Page: 18 b. Post-diagnosis and Pre-treatment Consultation - Risk of Treatment Page: 21 c.

Post-diagnosis and Pre-treatment Consultation - Alternative Treatments Page: 22 d. Informed Consent prior to the February 27 Treatment............. Page: 23 4. Informed Consent - Conclusion.............................................................. Page: 23 C. Would Mr. Malinowski Have Agreed to Treatment if Properly Informed? Page: 23 1. Legal Test................................................................................................. Page: 23 2. Evidence................................................................................................... Page: 24 3.

Analysis..................................................................................................... Page: 24 D. The Role of Workplace Health Support and Associated Professionals.. Page: 25 1. The Relationship Between Dr. Schneider and the Alberta Construction Joint Venture................................................................................................................... Page: 25 2. The Informed Consent Obligations of a Health Professional Associated with an Employer...................................................................................................................

Page: 27 3. The Employer’s Role in A Patient’s Consent....................................... Page: 28 E. Diagnosis and Treatment............................................................................. Page: 29 1. Diagnosis of Mr. Malinowski’s Condition............................................. Page: 30 a. Evidence....................................................................................... Page: 30 i. The February 26 Visit...................................................... Page: 30 ii. The February 27 Visit...................................................... Page: 31 iii.

Conclusion........................................................................ Page: 32 b. Standard of Care - Expert Testimony on Diagnosis................ Page: 32

i. The February 26 Visit...................................................... Page: 33 ii. The February 27 Visit...................................................... Page: 34 c. Standard of Care - Analysis of Diagnostic Procedures and Result....... Page: 36 i. February 26 - Diagnostic Examination.......................... Page: 36 ii. February 26 - Referral for Other Diagnostic Testing.... Page: 37 iii. February 26 - Diagnosis of Sacroiliac Sprain.............. Page: 37 iv. February 27 - Diagnostic Examination.......................... Page: 38 v. February 27 - Referral for Other Diagnostic Testing....

Page: 39 vi. February 27 - Diagnosis of Sacroiliac Sprain.............. Page: 39 2. The Choice of Treatment for Mr. Malinowski’s Condition................... Page: 39 a. Evidence....................................................................................... Page: 39 b. Standard of Care - Expert Testimony on Choice of Treatment Page: 40 i. Dr. Carstensen................................................................. Page: 40 ii. Dr. Kumar......................................................................... Page: 40 iii. Dr. Henderson..................................................................

Page: 41 c. Standard of Care - Analysis on Choice of Treatment.............. Page: 43 F. Was the SMT Therapy Conducted in a Technically Correct Manner for a Sacroiliac Joint Sprain?......................................................................................................................... Page: 44 V. INJURY OR LOSS............................................................................................... Page: 44 VI. CAUSATION........................................................................................................ Page: 44 A.

Background.............................................................................................. Page: 44 1. Spine Anatomical Structure.................................................................... Page: 44 2. Intervertebral Disc Injury.......................................................................... Page: 46 3. Cauda Equina Syndrome....................................................................... Page: 47 B. Known and Accepted Facts................................................................... Page: 48 C.

Issues........................................................................................................ Page: 49 1. Aside from the L3-L4 Intervertebral Disc Injury, What was the Condition of Mr. Malinowski’s Spine at the Time?.................................................................................. Page: 50 2. What is the Typical Period Required for Pressure by an Anomalous Material on the Cauda Equina and Thecal Sac to Lead to CES Symptoms?......................... Page: 50 3.

When was the Nucleus Pulposus From the L3-L4 Intervertebral Disc Ejected into the Vertebral Canal?....................................................................................................... Page: 51 4. Is the Force of an SMT to the Sacroiliac Region Never Sufficient to Aggravate a Damaged L3-L4 Intervertebral Disc?............................................................................ Page: 55 5. Is it Probable that Mr. Malinowski’s L3-L4 Intervertebral Disc Injury was Aggravated by the Chiropractic Adjustment to the Sacroiliac Joint?................................. Page: 59 6.

Conclusion................................................................................................ Page: 62 VII DAMAGES........................................................................................................... Page: 64

A. Mr. Malinowski’s Claim................................................................................. Page: 64 B. Medical Questions......................................................................................... Page: 65 1. “Crumbling Skull” - Pre-Injury Conditions that would Lead to Future Impairment Page: 66 a. Spine and Back........................................................................... Page: 66 b. Psychological State and Substance Dependancies............... Page: 67 2. Impairment that Resulted from the CES Injury...................................... Page: 69 C. Mr.

Malinowski’s Employment and Educational History and Future........ Page: 69 1. Pre-injury Educational Background....................................................... Page: 70 2. Pre-injury Work History............................................................................ Page: 70 3. Post-injury Educational and Work History............................................. Page: 70 4. Expert Analysis of Mr. Malinowski’s Aptitudes and Skills................... Page: 70 5. Conclusion - Mr. Malinowski’s Education and Work Prospects......... Page: 71 a. Mr. Malinowski’s Employment/Unemployment Habits.............

Page: 71 b. Mr. Malinowski’s Employment Advancement........................... Page: 72 c. Mr. Malinowski’s Career Alternatives........................................ Page: 73 d. Mr. Malinowski’s Failure to Mitigate.......................................... Page: 73 D. Specific Damage Claims............................................................................. Page: 74 1. Non-pecuniary Damages........................................................................ Page: 74 injuries............................................................................................................. Page: 76 2.

Income and Earning Losses................................................................... Page: 76 3. Loss of Housekeeping Services............................................................ Page: 78 4. Future Cost of Care................................................................................. Page: 81 a. Medication.................................................................................... Page: 81 c. Swimming Passes....................................................................... Page: 81 d. Grab Bars and Reacher..............................................................

Page: 81 e. Back Belt...................................................................................... Page: 81 f. Access to a Hot Tub.................................................................... Page: 81 g.

Summary, Future Cost of Care.................................................. Page: 82 5. WCB.......................................................................................................... Page: 82 6. Special Damages.................................................................................... Page: 82 E. Damages - Conclusion................................................................................. Page: 82 VIII. COSTS................................................................................................................. Page: 83

Schedule “A” - Expert Witnesses.................................................................................. Page: 88

I. BACKGROUND [ 1 ] Mr. Malinowski was born in Poland in September of 1972. He completed grade eight and had begun attending a technical school for mechanics. Approximately six months later, he moved to Germany. There he attended a technical school for electricians for approximately four months, picked grapes in a vineyard and pulled aluminum off vehicles in a scrap yard for a short period of time before immigrating to Edmonton at the age of 16. On arrival in Canada, he briefly attended Louis St. Laurent High School to take English as a second language.

From then on, he worked at various jobs during the summer as well as part-time while taking various classes at St. Joseph’s High School between September 1989 and September 1992. He did not graduate from high school. Further particulars of his background and work experience will be detailed later in this judgment and therefore will not be repeated here. [ 2 ] On February 25, 2002, Mr. Malinowski was working as an apprentice electrician for Tracer Field Services Canada at the Shell Upgrader project near Fort Saskatchewan. He was injured while pulling very heavy electrical cable.

He was assisted to the on-site medical trailer where he remained for the rest of his shift that day. He required assistance to take the bus back to his residence, as well as the assistance of his father to get to his bed once he arrived there. [ 3 ] The next day, Mr. Malinowski returned to the workplace but was unable to return to his duties. After spending some period of time in the on-site medical trailer, he was taken by two safety workers to Dr. Schneider’s chiropractic clinic in Fort Saskatchewan. Dr. Schneider examined, diagnosed and treated Mr. Malinowski during that visit. The next day, Mr.

Malinowski had a second appointment with Dr. Schneider at the on-site medical trailer at the Upgrader site. Details of those visits will be outlined later in this judgment. [ 4 ] Late on February 27, Mr. Malinowski visited his family physician, Dr. Sawicki. The following morning, Mr. Malinowski remained in bed all day taking painkillers. When he woke on March 1 he had numbness in his saddle area and could not feel his legs. He called 911 and was taken by ambulance on a stretcher from his bed to the Misericordia Hospital.

His symptoms progressed while at the Misericordia Hospital and eventually he was diagnosed with cauda equina syndrome (“CES”). Emergency surgery was performed by Dr. Broad, a neurosurgeon. [ 5 ] Other than one brief period in which Mr. Malinowski attempted to work as a painting estimator, he has not worked since September 27, 2002. [ 6 ] Dr. Schneider attended the Canadian Memorial Chiropractic College from the fall of 1984 until he graduated with academic honours in 1988. He passed the Canadian Chiropractic Education Board exams and then returned to Alberta in 1988.

He passed the exams required by the College of Chiropractors of Alberta and has been practicing as a chiropractor in Alberta since that time. He has, throughout his years of practice, taken continuing education courses. In addition, in 1992, he became a fellow of the College of Chiropractic Rehabilitation Sciences Canada and, in 1994, a fellow of the College of Chiropractic Orthopedists (Canada).

He also took graduate level training for advanced diagnostics and treatment procedures in relation to chiropractic orthopedics through the Royal Melbourne Institute of Technology University and the Southern California University of Health Sciences, culminating in his receipt in 2002 of a Master’s Degree in Applied Science (with distinction) from the Royal Melbourne Institute of Technology University. Among other positions throughout his years in practice, Dr.

Schneider was also a member of the consensus group committee involved in the development of the Glenerin Guidelines, a set of approved practices for Canadian chiropractors. [ 7 ] Dr. Schneider first attended on Mr. Malinowski at his office in Fort Saskatchewan. The focus of his practice was occupational injuries as a result of referrals from personnel at the Shell Upgrader project. From approximately 2001, Dr. Schneider had established what he described as a somewhat formal relationship with the employers at the project.

Injured workers would be sent in cabs from the job site to see him at his clinic on an almost daily basis. As time went on, he and the project’s occupational health staff decided that it would better to treat injured employees at the Upgrader site because, in Dr. Schneider’s words, “the transportation issues were getting ungainly, and the time these workers were spent (sic) off the site was beginning to affect their productivity issues”. Therefore, he negotiated a contract under which he would see new patients at his clinic for their first visit and thereafter he would treat them at the job site.

It was through this process that Dr. Schneider came to be involved in Mr. Malinowski’s care on February 26, 2002. II. ISSUES

[ 8 ] At issue is whether Dr. Schneider is liable for negligence in his treatment of Mr. Malinowski and, if so, the amount of damages for which he is responsible. Sub-issues related to these main issues are set out and dealt with below. A. Preliminary Issue - Expert Evidence - Areas of Expertise - Specialist’s Testimony on Standard of Care of Non-Specialist 1. Dr. Kumar [ 9 ] Dr. Schneider challenged Dr. Kumar’s status to give an expert opinion on whether Dr. Schneider had met the standard of care when he diagnosed, advised, and treated Mr. Malinowski. Dr.

Kumar identified a number of what he considered breaches of Dr. Schneider’s standard of care: 1. Dr. Schneider incorrectly diagnosed Mr. Malinowski’s injury as a sacroiliac joint sprain, despite having concluded that a lumbar disc injury was a possible diagnosis; 2. Dr. Schneider did not order bed rest, nor did he refer Mr. Malinowski for medical imaging to clarify the nature of his injury; instead he proceeded immediately to conduct a chiropractic adjustment; and 3. Dr. Schneider did not warn Mr. Malinowski of the symptoms of CES and the need for Mr.

Malinowski to immediately seek medical attention if those symptoms appeared. [ 10 ] Dr. Schneider argued that Dr. Kumar offered an opinion outside his area of expertise. Dr. Kumar is a neurosurgeon, while Dr. Schneider is a chiropractor. Courts recognize that an expert in a given subject cannot comment on the expertise of a second, different discipline. [ 11 ] Chiropractic is described by Dr. Schneider as an independent, self-regulated profession, which has its own standards and procedures.

Alberta courts have described the standard of care of a chiropractor as “the degree of care, diligence, judgment and skill which is exercised by a normal, prudent or reasonable chiropractor under like or similar circumstances and with the same experience and training”: Olsen v. Jones , 2009 ABQB 371 , 11 Alta. L.R. (5th) 203 . [ 12 ] For a medical professional, expert testimony should be from a medical expert in the same profession: Gemoto v. Calgary Regional Health Authority (c.o.b. Alberta Children's Hospital) , 2006 ABQB 740 at para. 315 , 67 Alta. L.R. (4th) 226 ; Nattrass v.

Weber , 2008 ABQB 259 at para. 182 , 444 A.R. 303 , reversed on other grounds 2010 ABCA 64 , 316 D.L.R. (4th) 666 . Since Dr. Kumar cannot offer guidance on the standard of care on a different subject, Dr. Schneider submitted that his evidence was irrelevant and should be excluded as prejudicial. Dr. Schneider stressed that courts have been cautious and have excluded expert opinions that relate to the standard of care in relation to medical specialists. In Alakoozi v. Hospital for Sick Children , [2002] O.T.C. 817 at para. 73, 117 A.C.W.S. (3d) 828 (Ont. Sup. Ct.

J.) , affirmed 2004 CanLII 8394 (ON CA) , 187 O.A.C. 187 , 131 A.C.W.S. (3d) 762 (Ont. C.A.) , the Court concluded that expert testimony from one medical specialist, a pediatric haematologist, did not assist when determining the standard of care for a different kind of medical specialist, a pediatric otolaryngologist. [ 13 ] Mr. Malinowski argued that Dr. Kumar’s evidence on diagnosis and treatment of back injuries relates to the standard of care of any medical professional. He argued that Dr. Kumar’s opinion should not be excluded, though it might deserve less weight.

There are other instances where a non-chiropractor medical expert has commented on the standard of care of a chiropractor ( Barber v. Wilson (1996), 8 O.T.C. 350 at paras. 8-9, 64 A.C.W.S. (3d) 586 (Ont. Ct. J. (Gen. Div.)), and the appropriateness of chiropractic treatment on a particular patient ( Nobel v. Bergstrom , 2001 BCSC 1135 at paras. 29-31 ), 107 A.C.W.S. (3d) 1001 ). [ 14 ] I conclude that Dr. Kumar’s evidence is admissible and relevant to Dr. Schneider’s standard of care during diagnosis and treatment of Mr. Malinowski. Dr.

Kumar’s testimony relates to a general standard of care for diagnosis and treatment of lower back injuries that is expected for any medical professional who diagnoses and treats that kind of injury. Dr. Kumar, a neurosurgeon, did not testify as to the standard of care for a neurosurgeon, nor did he suggest that Dr. Schneider ought to have conducted himself as a neurosurgeon would have. Neither would have been appropriate, as doing so would have raised the standard to that of a neurosurgeon. Rather, Dr.

Kumar testified as to the expected knowledge and conduct of any medical professional who is called upon to treat people

presenting with back injuries, be they emergency medical technicians, emergency room physicians, family physicians, chiropractor or others. [ 15 ] Canadian appellate courts have determined that a specialist can provide evidence on the standard of care of a general practitioner: Robinson v. Sisters of St. Joseph of the Diocese of Peterborough in Ontario (1999), 1999 CanLII 2199 (ON CA) , 117 O.A.C. 331 , 29 C.P.C. (4th) 184 (Ont. C.A.) ; Briffett v. Gander and District Hospital (1996), 1996 CanLII 11090 (NL CA) , 137 Nfld. & P.E.I.R. 271 , 29 C.C.L.T. (2d) 251 (Nfld. C.A.) ; Quintal v.

Datta (1988), 1988 CanLII 5084 (SK CA) , 68 Sask.R. 104 , 12 A.C.W.S. (3d) 139 (Sask. C.A.) . In Robinson v. Sisters of St. Joseph , the Ontario Court of Appeal stated: There is no general rule that a specialist cannot offer an opinion as to the applicable standard of care governing medical treatment provided by a general practitioner, or that the specialist cannot offer an opinion as to whether the general practitioner met the applicable standard. The admissibility of the specialist's opinion depends on the subject matter on which that opinion is offered and the specialist's training and experience.

Surely, there are treatments and procedures which are common to the practices of general practitioners and specialists alike. [ 16 ] In Briffett v. Gander and District Hospital the Newfoundland Court of Appeal stressed that, as persons advance in a profession, they add to their understanding of a topic, and noted that one common function of a specialist expert is in educating more general practitioners as to what the general practitioners need to know about a topic: 48 ...

Both specialists, having been trained as general practitioners before acquiring their specialty, and being members of the faculty teaching student doctors, could be considered well versed in what should be expected from average general practitioners in the proper care of patients with potential heart problems in hospital emergency units in 1987. There is no reason why Drs. Stone and MacCallum should be regarded as other than qualified to voice opinions on what should have been the level of skill, knowledge and judgment expected from average casualty officers in the position of Drs.

Johnson and Cooper in diagnosing and treating patients with signs of coronary problems, such as Mr. Briffett presented. The trial judge was not, therefore, in error in receiving these cardiologists' evidence as to the appropriate standard of care. [ 17 ] The role of specialists in providing guidance to general practitioners is also highlighted in Lurtz v. Duchesne , [2003] O.T.C. 319 at 184, 122 A.C.W.S. (3d) 384 (Ont. Sup. Ct. J.) , varied on other grounds 2005 CanLII 5080 (ON CA) , 2005, 194 O.A.C. 119 , 136 A.C.W.S. (3d) 1055 (Ont. C.A.) : Dr.

Rosser, who testified on behalf of the defendants, admitted that he read several articles on acromegaly before he could write his report setting out his opinion on Dr. Duchesne's standard of care. Dr. Singer, on the other hand, wrote the type of articles read by Dr. Rosser. I, therefore, qualified Dr. Singer, on the standard of care of a family practitioner, to give evidence on the issues of standard of care on diagnosis of acromegaly, and also on causation relating to acromegaly. [ 18 ] While Dr.

Schneider characterizes chiropractic as a separate and distinct profession, I conclude that chiropractic is a part of the larger “medical community”: that is, one of the myriad of diverse medical options available to the public. The chiropractors who testified did not see themselves as a profession that is incompatible with other medical practitioners, based on a completely separate body of theory and diagnosis. Instead, the chiropractors testified that their profession used evidence-based techniques, based on the same understanding of spine structure and dysfunction as physicians. These experts, and Dr.

Schneider, did not dispute that certain kinds of back and spine injuries are outside their ability to treat, and that patients with these injuries should be transferred to medical doctors for treatment and surgery. [ 19 ] Similarly, chiropractic diagnostic procedures are a subset of those available to medical doctors. Both chiropractor and non- chiropractor medical experts who testified referred to the same kinds of diagnostic tests and patient symptoms. This was not a situation where Dr. Kumar was unfamiliar with the manner in which Dr. Schneider had attempted to diagnose Mr. Malinowski’s condition.

Medical imaging technology is the one diagnostic tool used by medical doctors but not chiropractors. Dr. Kumar’s testimony related not to the standard of care of a chiropractor evaluating that kind of evidence but, rather, when a chiropractor or other medical professional should refer a patient experiencing back pain for medical imaging. [ 20 ] I conclude that Dr. Kumar’s testimony related to the standard of care of non-specialists in back injury diagnosis and

treatment. Dr. Kumar did not conclude that Dr. Schneider failed to meet the standard of care of a neurosurgeon but, rather, that of a non- specialist who treats persons with back and spine complaints. Dr. Kumar has the expertise to comment on what a non-specialist would and should know. Similar to Briffett v. Gander and District Hospital and Lurtz v. Duchesne , Dr. Kumar testified he is a member of a council that develops general guidelines for all health care professionals who diagnose and treat back injury cases, including intervertebral disc injuries.

As such, he was well suited to comment on the appropriate diagnostic and treatment regime for a chiropractor who encounters a person with an apparent spine injury, such as Mr. Malinowski. [ 21 ] Dr. Kumar’s testimony as to Dr. Schneider’s standard of care in diagnosis and treatment of Mr. Malinowski’s injuries is therefore relevant, and more probative than prejudicial. 2. Other Expert Witnesses [ 22 ] A number of expert witnesses provided reports, testified at trial, or both, on behalf of the parties.

For ease of reference, the list of experts and their areas of qualification (for the purposes of this action) are set out in

Schedule “A” to this Judgment. B. Legal Test for Medical Negligence [ 23 ] To be successful in his action, Mr. Malinowski must prove on a balance of probabilities, that: 1. Dr. Schneider owed him a duty of care; 2. Dr. Schneider breached the standard of care; 3. Mr. Malinowski suffered an injury or loss; and 4. Dr. Schneider’s actions were the actual and legal cause of his injury or loss. (E. I. Picard and G. B. Robertson, Legal Liability of Doctors and Hospitals in Canada , 4th ed. (Toronto: Thompson Canadian Limited, 2007). III. DUTY OF CARE [ 24 ] Dr. Schneider acknowledged that he owed a duty of care to Mr.

Malinowski. IV. STANDARD OF CARE A. Standard of Care - Legal Principles - Chiropractor Standard of Care [ 25 ] The parties did not dispute the standard of care that is required for chiropractors. It was described in Olsen v. Campbell-Jones as:

the degree of care, diligence, judgment and skill which is exercised by a normal, prudent or reasonable chiropractor under like or similar circumstances and with the same experience and training. ( See also Penner v. Theobald (1962), 1962 CanLII 395 (MB CA) , 35 D.L.R. (2d) 700 at paras. 12 -13 , 40 W.W.R. 216 (Man. C.A.) ; Balcom v. MacDonald , 2000 BCSC 1426 at para. 91 , 99 A.C.W.S. (3d) 873 ; Loffler v. Cosman , 2010 ABQB 177 at paras. 66-69 ; Dickson v. Pinder , 2010 ABQB 269 at paras. 15-17 .) [ 26 ] Chiropractors are treated like any other medical professionals: Heughan v.

Sheppard , [2000] O.T.C. 413 at para. 160 (Sup. Ct. J.) . [ 27 ] A trial judge usually evaluates a professional’s standard of care with the assistance of expert evidence on the standards and practices of that discipline. Mr. Malinowski called Dr. Carstensen and Dr. Kumar to comment on the appropriate standard of care for Dr. Schneider, while Dr. Schneider called Dr. Henderson as his expert witness on this issue. B. Informed Consent [ 28 ] Canadian law clearly establishes that any medical treatment of a patient is an assault unless the patient has consented to that treatment.

The Ontario Court of Appeal in Fleming v. Reid (1991), 1991 CanLII 2728 (ON CA) , 4 O.R. (3d) 74 at 85, 82 D.L.R. (4th) 298 (Ont. C.A.) , endorsed in Ciarlariello v. Schacter , 1993 CanLII 138 (SCC) , [1993] 2 S.C.R. 119 at para. 40 , 100 D.L.R. (4th) 609 described the patient’s right to control medical treatment: The right to determine what shall, or shall not, be done with one's own body, and to be free from non consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. ...

The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self determination. ... It is the patient, not the doctor, who ultimately must decide if treatment — any treatment — is to be administered. [ 29 ] This is a facet of the “patient-centred” approach to healthcare that was referenced by the Supreme Court of Canada in Reibl v. Hughes , 1980 CanLII 23 (SCC) , [1980] 2 S.C.R. 880, 114 D.L.R. (3d) 1, and Arndt v. Smith , 1997 CanLII 360 (SCC) , [1997] 2 S.C.R. 539, 148 D.L.R. (4th) 48.

Permission to treat is not merely a question of the patient granting a medical professional the right to proceed, but also requires the patient be “informed” about the proposed therapy and have a clear understanding of that treatment, its risks and benefits, and alternative therapies. [ 30 ] The parties do not dispute that Dr. Schneider should have obtained Mr. Malinowski’s informed consent prior to any chiropractic treatment. They disagree, however, on a number of points: 1. whether Mr. Malinowski had been properly informed about the proposed treatment before that treatment occurred; 2. whether, if Mr.

Malinowski had consented to the February 26 treatment, further information and disclosure was required prior to the February 27 treatment; and 3. whether Mr. Malinowski consented to the February 26 and 27 treatments. 1 Informed Consent - Law [ 31 ] In Dickson v. Pinder , at para. 68 ,Yamauchi J. identified five components to informed consent:

1. the medical practitioner’s diagnosis of the patient’s condition; 2. the prognosis of that condition with and without medical treatment; 3. the nature of the proposed medical treatment; 4. the risks associated with the proposed medical treatment; and 5. the alternatives to the proposed medical treatment, and the advantages and risks of those alternatives. [ 32 ] Mr. Malinowski agrees that Dr. Schneider informed him in relation to the first three items on this list. What remains in dispute is the adequacy of his disclosure of risks from chiropractic treatment and of non-chiropractic alternatives. a.

Risks of the Proposed Treatment [ 33 ] Courts recognize that medical treatment and even examination often involve some kind of risk to a patient. It is crucial that patients are made aware of these risks. Lamer C.J.C. in Hopp v.

Lepp , 1980 CanLII 14 (SCC) , [1980] 2 S.C.R. 192 , 112 D.L.R. (3d) 67 , made clear every medical professional has a duty to inform the patient: ... in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation . ... [Emphasis added.] [ 34 ] A material risk is one which, objectively, the patient would want to know ( Ciarlariello v.

Schacter , at 133): In deciding whether a risk is material and therefore, one which should be explained to the patient, an objective approach should be taken. The crucial question in determining the issue is whether a reasonable person in the patient's position would want to know of the risk. [ 35 ] A reasonable patient wants to know two kinds of risks, those that are likely to be encountered, and those that are infrequent but which have severe consequences: White v. Turner (1981), 1981 CanLII 2874 (ON SC) , 120 D.L.R. (3d) 269 at paras. 52-54 (Ont.

S.C.) , affirmed 1982 CanLII 1919 (ON CA) , 47 O.R. (2d) 764 , 12 D.L.R. (4th) 319 (Ont. C.A.) ; Zaiffdeen v. Chua , 2005 ABCA 290 at para. 25 , 380 A.R. 200 ; Zimmer v. Ringrose (1981), 1981 ABCA 60 (CanLII) , 124 D.L.R. (3d) 215 , 28 A.R. 69 (Alta C.A.) , leave denied [1981] S.C.C.A. No. 200. In Dickson v. Pinder , at para. 74 , Yamauchi J. summarized these categories: a medical practitioner must disclose a risk, where the patient would not know of the risk and either: (

a) the risk is a likely consequence, and the injury that would result is at least a slight injury, or (

b) the risk has a serious consequence, such as paralysis or death, even where that risk is uncommon but not unknown. [ 36 ] The Alberta Court of Appeal has recently commented, in Martin v. Findlay; Martin v. Capital Health Authority , 2008 ABCA 161 , 432 A.R. 165 , on the manner in which risks should be disclosed. The terminology used to inform a patient is of less consequence. Rather, an explanation of the potential deleterious result is crucial:

33 ... The standard of care did not require that the surgeon disclose the mechanism of the risk. Mr. Martin was told of the risks of the surgery which could result from a stroke. These included death, speech impairment and paralysis. He was told of the risk of the very injuries which occurred . [Emphasis added.] [ 37 ] A patient must be informed using language and an explanation that is appropriate to that patient.

A medical practitioner has the responsibility to ensure risks are disclosed and understood : 38 Cases in which the informed consent issue focussed on the patient's understanding of the risk disclosure reveal that the circumstances of the patient and his or her capacity to understand are crucial to determining whether the physician has done enough to present the information clearly. Cases where physicians were found to have disclosed risks with insufficient clarity involved patients with limited language comprehension (Reibl, Ciarlariello, and Schanczl v.

Singh, 1987 CanLII 3223 (AB KB) , [1988] 2 W.W.R. 465, 56 Alta L.R. (2d) 303 at 313 (Q.B.)), patients who were elderly and clearly resistant to discussing risks (Kellet v. Griesdale, [1985] B.C.J. No. 1414, 1985 CarswellBC 1091 at para. 20 (S.C.) ), unsophisticated patients with limited education (Byciuk v. Hollingsworth at paras. 31-33, and Paradis (Litigation Guardian of) v. Labow, [1996] O.J. 1326, 1 O.T.C. 212 at paras. 39 and 48 (Gen. Div.) ), and patients under emotional or physical distress (Brown v. Degani, [1996] O.J. No. 126, 1996 CarswellOnt at para. 28 (Gen. Div.) and Smith v.

Tweedale (1995), 1995 CanLII 1716 (BC CA) , 4 B.C.L.R (3d) 325, 55 B.C.A.C. 52). b. Alternative Treatments and Their Risks and Alternatives [ 38 ] The consequence of inaction and alternative treatments are another necessary component of the information presented to a prospective patient. Prowse J.A. in Zimmer v.

Ringrose stressed that a patient needs to put his or her decision in context: With a view to revealing any probable or special risks involved, the physician or surgeon should also discuss the benefits to be gained from the recommended treatment or operation, the advantages and disadvantages associated with alternative procedures and the consequences of foregoing treatment. Such a discussion is essential since a patient cannot measure risks in the abstract.

To discharge his duty of care, the doctor must give the patient some yardstick against which he can assess the options available to him . [Emphasis added.] [ 39 ] Similarly, in Dickson v. Pinder at para. 81 , Yamauchi J. said ... [t]his is a fact-dependent threat assessment process. A patient cannot make a meaningful and informed choice to consent to a therapy unless that patient knows the consequences of other reasonable alternatives or inaction, and can balance the risks and benefits of the proposed therapy against those alternatives. (See also Haughian v.

Paine (1987), 1987 CanLII 987 (SK CA) , 37 D.L.R. (4th) 624, 55 Sask.R. 99 (Sask. C.A.); Zaiffdeen v. Chua ; Sicard v. Sendziak , 2008 ABQB 690 at para. 111 , 98 Alta. L.R. (4th) 44; Gallant v. Patten , 2010 NLTD 1 at paras. 55-58 , 292 Nfld. & P.E.I.R. 279.) [ 40 ] Only reasonable alternatives need to be disclosed. In Seney v.

Crooks , 1998 ABCA 316 at paras. 57-58 , 223 A.R. 145 , the Alberta Court of Appeal said that the “scope of the duty to inform must be approached carefully” and might not include a “fringe alternative” or “alternative medicine practices.” No obligation exists where the medical practitioner believes that the alternative means of treatment are not reasonable options: Seney v. Crooks , at para. 69 ; Bucknam v. Kostuik , (1983), 1983 CanLII 1865 (ON SC) , 44 O.R. (2d) 102 , 3 D.L.R. (4th) 99 (Ont. H.C.J.) affirmed on other grounds, (1986), 1986 CanLII 2686 (ON CA) , 55 O.R. (2d) 187 , 38 A.C.W.S. (2d) 158 (Ont.

C.A.) . [ 41 ] Similarly, if non-treatment is a reasonable alternative, then that too ought to be disclosed: Haughian v. Paine at para. 38 ; Sicard v. Sendziak , at para. 111 ; Guay v. Wong , 2008 ABQB 638 at para. 11 , 463 A.R. 289 . If inaction involves risks, then logically that too is something a patient would want to know.

2. Informed Consent - Evidence [ 42 ] Mr. Malinowski was examined and treated at both visits with Dr. Schneider. Dr. Schneider has very limited recollections of the two visits. He remembers Mr. Malinowski was assisted into the clinic on February 26, but testified he has no memory of the February 27 visit. He has no independent recollection of discussing proposed treatments with Mr. Malinowski. [ 43 ] Mr. Malinowski’s recollection of the two visits provides some evidence of how he consulted with Dr. Schneider and how he signed the consent form.

He remembers that at the February 26 visit he signed some papers in the waiting room, was interviewed by Dr. Schneider, and participated in some tests that included a sensory pin wheel and a reflex hammer. He says he was not warned that the treatment could aggravate his back; could cause a new injury; could cause permanent pain and numbness; or could result in loss of sensation, control of his legs, and urinary control. He recalls little from the February 27 visit. He does not dispute that he signed a consent form, and that he did not refuse treatment from Dr. Schneider. [ 44 ] That Dr.

Schneider has only limited memories of his encounters with Mr. Malinowski is not unexpected. He therefore testified as to his usual procedure in 2002 when examining a patient such as Mr. Malinowski. His records from the visits are also relevant to establishing what occurred at each visit. Dr. Schneider testified that review of Mr. Malinowski’s file indicated that the standard paperwork was completed at the February 26 visit, and thus he believed he obtained informed consent in his usual manner. I accept that he followed his usual procedure. a. The February 26 Visit [ 45 ] Dr.

Schneider explained his typical new patient intake procedure. The receptionist, Ms. Silvester, would give new patients a number of forms to complete, including the “informed consent form”, which they would be instructed to read and sign. Ms. Silvester was to inform Dr. Schneider if a patient did not sign the informed consent form. Patients had the opportunity to ask questions in relation to the informed consent form once they met with Dr. Schneider. However, Dr.

Schneider indicated it was not his usual practice to discuss the consent form and its contents with a patient. [ 46 ] The contents of the informed consent form were the subject of considerable argument, and so I reproduce the body of this document in full: INFORMED CONSENT TO CHIROPRACTIC ADJUSTMENTS AND CARE In our experience the most effective treatment for spinal joint dysfunction involves the adjustment of spinal joints. Specific adjustments can reduce pain, tenderness and muscle spasm, improve spinal mobility as well as provide many other beneficial effects.

The doctor will not give a chiropractic adjustment if he is aware that such care may be contra-indicated in your case. It is, however, important that the patient make it known to the doctor any and all symptoms, illnesses and diseases that he/she is currently or has previously suffered from in order for the doctor to make an accurate diagnosis. I understand and I am informed that in the practice of chiropractic, as in all other forms of health care, there are some very slight risks to treatment, including, but not limited to muscle strains and sprain, fractures, disc injuries and strokes.

The risk of injuries or complications from chiropractic treatment is substantially lower than that associated with many medical or other treatments, medications, and procedures given for the same symptoms. I do not expect the doctor to be able to anticipate and explain all risks and complications and I do wish to rely on the doctor to exercise judgment during the course of the procedure which the doctor feels at this time, based upon the facts known, are in my best interest.

I acknowledge that I have discussed, or have had the opportunity to discuss, with my chiropractor the nature and purpose of chiropractic treatment in general and my treatment in particular (including spinal manipulation) as well as the contents of this Consent. I hereby request and consent to the performance of chiropractic adjustments and other chiropractic procedures, including various modes of physical therapy and, if necessary, diagnostic x-rays. I intend this consent form to cover the entire course of treatment for my present condition and for any future conditions(

s) for which I seek treatment.

I authorize Dr. Schneider to inform my family physician regarding my care in order to provide coordinated cooperation in the treatment of my condition. [ 47 ] Dr. Schneider explained that the informed consent form was adapted from a version published in the Spring 1999 edition of “Cornerstone” (a professional journal of the College of Chiropractors of Alberta). He indicated it “was required under legislation”, which he explained meant the Alberta Chiropractic Profession Act , R.S.A. 2000, c. C-13 (now subsumed in the Health Professions Act , R.S.A. 2000, c.

H-7), and “... the policies of the College of Chiropractors [of Alberta]”. [ 48 ] Dr. Schneider testified that he understood the requirement to obtain informed consent was a policy of the College of Chiropractors of Alberta. It was set out in a 2000 issue of the Cornerstone: Members will obtain from every patient ... informed consent before commencing any examination, diagnostic procedure, or treatment. Informed consent must disclose to the patient ... the nature of the proposed treatment or procedure and any potential risks, including those that may be of a special or unusual nature.

Chiropractors must provide patients the opportunity to ask questions concerning the risks involved and should answer those questions to the patient’s satisfaction. In view that the best record of consent is one that is objectively documented, informed consent must be given in writing. Once written informed consent has been obtained, permission for future treatments is also granted. However, there is a continuing obligation to keep patients informed and to advise them of any new or changed material risk. [ 49 ] Informed consent was also an issue in the post-diagnostic interview between Dr.

Schneider and his patients. Once Dr. Schneider had conducted an examination of Mr. Malinowski he would review his observations and identify the “primary diagnosis”, what he thought was the most likely explanation for Mr. Malinowski’s condition (a sacroiliac joint sprain) and any other possible explanation (a differential diagnosis, in this case a lumbar intervertebral disc protrusion). Dr. Schneider then discussed the proposed treatment and its alternatives. He explained that chiropractic does not “make you any better” but, rather, it shortens the period of disability and pain, and increases movement.

For a sacroiliac sprain, chiropractic therapy brings a risk of bruising on the treated area, deeper muscular pain, and a low risk of fracture, disc injury, and nerve injury. He indicated he would not have mentioned the risk of CES or detailed its associated symptoms. [ 50 ] Dr. Schneider would then have explained alternative treatments, including drugs (anti-inflammatory medication, muscle relaxants, analgesics) and surgery, and their associated risks. Dr.

Schneider highlighted that alternative treatments had the potential for negative side-effects: for example, anti-inflammatory agents have a strong possibility of causing gastrointestinal upset and a serious risk of stomach bleeding, heart attacks, or addiction and muscle relaxants cause sleepiness, are not suited to work situations, and are addictive. Dr. Schneider agreed that his standard approach was to indicate that strong analgesics or narcotics prescribed for acute and intractable low back pain have “a significant risk of addiction”.

Similarly, he agreed he would warn that surgical alternatives that involve anaesthetics “have a risk of dying or suffering brain damage.” Physiotherapy that involved electro-therapy can cause rashes and muscle aches. b. The February 27 Visit [ 51 ] Dr. Schneider did not have any recollection of his examination and treatment of Mr. Malinowski on the following day. He explained that his usual procedure for a subsequent visit was different and involved a more limited examination, an “interactive reassessment”. Prior to treatment Dr.

Schneider inquired as to the patient’s response to earlier treatment and the patient’s present condition. Dr. Schneider did not indicate there was any particular informed consent component to a repeat visit which occurred on the patient’s work-site. c. Experts’ Testimony i. Dr. Carstensen [ 52 ] Dr. Carstensen testified as an expert for Mr. Malinowski concerning a chiropractor’s duty to inform a patient as to proposed treatment. He indicated that informed consent would be met where a chiropractor explained the benefits and risks of the proposed

treatment, both chiropractic and non-chiropractic alternatives, and the probable consequences of a patient not receiving treatment. Dr. Carstensen indicated there was no question as to the need for this kind of disclosure. This is the standard taught in chiropractic schools, recommended for malpractice insurance, and is a part of the Glenerin Guidelines which are available to chiropractors. Dr. Carstensen stressed that these explanations need to be in a form that is understood by the patient. This consultation should occur after the patient had been examined.

The requirement for informed consent would not be satisfied prior to examination by a patient reading and signing a form that indicated the patient had no questions concerning treatment. [ 53 ] Dr. Carstensen identified several key elements that he considered ought to have been stressed once Dr. Schneider had come to his primary diagnosis that Mr.

Malinowski had a sacroiliac joint sprain: 1. his alternative diagnosis was injury to a lumbar intervertebral disc; 2. the proposed chiropractic adjustment might aggravate a lumbar intervertebral disc injury, which could lead to CES, which has serious and permanent effects (including impairment and loss of sensation to the legs, bowel and urinary dysfunction, and loss of sexual function and sensation); and 3. non-chiropractic treatments (including bed rest, pain treatment, and physiotherapy), would likely relieve Mr. Malinowski’s condition in a 4 to 12 week period without any risk of CES. [ 54 ] Dr.

Carstensen opined that a chiropractor’s duty of care in these circumstances includes warning a patient of CES symptoms since that is a known risk, so that if the patient suffers a CES injury he can obtain proper medical (non-chiropractic) attention. ii. Dr. Henderson [ 55 ] Dr. Henderson provided expert testimony for Dr. Schneider on the issue of informed consent. While he did not dispute the necessity that a chiropractor must obtain informed consent prior to engaging in treatment, Dr. Henderson disagreed as to the manner in which informed consent might be obtained. The key distinction between his opinion and Dr.

Carstensen’s is the manner in which risks should be addressed. Dr. Henderson explained that it was acceptable for a patient to be presented with a form prior to examination that identified risks and authorized treatment, that a chiropractor need only confirm that the form had been reviewed and signed, and that the chiropractor need only ask if the prospective patient had any questions. In his opinion, alternative treatments need only be disclosed in certain more limited instances, and this was a question of ‘clinical judgment’. [ 56 ] Dr. Henderson reviewed the informed consent form used by Dr.

Schneider, and indicated that it met the Glenerin Guidelines for chiropractic conduct. The omission of CES as a possible consequence of chiropractic adjustment was unremarkable as Dr. Henderson indicated there was no known link between chiropractic treatment and that injury. [ 57 ] On cross-examination it emerged that Dr. Henderson appeared to have some misapprehension as to what constitutes informed consent under Canadian law.

Specifically, he appeared to believe that the binding authority for informed consent is professional guidelines issued by chiropractic institutions (such as the Alberta College and Association of Chiropractors), which he identified as “legislation” and “regulations”. Dr. Henderson appeared to be of the opinion that instructions of the courts are irrelevant until assimilated by these professional organizations into their guidelines: I have to square it with what was available to me as a chiropractor. I realize case law dictates and trickles down into the various colleges. The college has to pick up on that.

The college is my compass, my guide in terms of providing informed consent. Dr. Henderson is incorrect. Law in Canada is established through legislation and from decisions of the courts. A chiropractic college is neither and chiropractors are not free to ignore legislation or caselaw until their governing professional bodies direct them to abide by legal standards. If Dr. Henderson’s explanations reflect the approach taken by chiropractors generally in Canada, then that is of concern.

Professional standards are relevant in medical and chiropractic malpractice cases, but professional policies which do not adhere to law are no shield to a medical professional.

[ 58 ] In light of his apparently poor understanding of the character and source of legal obligations on health professionals, I put little weight on Dr. Henderson’s testimony in relation to informed consent. Instead I accept the approach taken by Dr. Carstensen, which I observe is consistent with Canadian caselaw. 3. Informed Consent - Analysis [ 59 ] Mr. Malinowski has never claimed he did not authorize treatment, but what remains in question is whether he understood what treatment entailed. The question of whether informed consent was obtained thus involves a number of subordinate issues: 1.

What was the effect of Mr. Malinowski signing the informed consent form? 2. Was Dr. Schneider’s description of the risks of the proposed chiropractic treatment adequate? 3. Was Dr. Schneider’s description of the alternatives to the proposed chiropractic treatment adequate? 4. If the answers to questions 1 through 3 is “yes”, then was informed consent also properly obtained during the February 27 visit? a. Informed Consent Form [ 60 ] As a preliminary issue, I wish to address the disturbing explanations and beliefs of Dr. Schneider and Dr. Henderson about how a patient consent form operates.

Both referred to chiropractic professional organizations and their guidelines, and sample documents that had been provided by these sources. Both seemed to believe that these professional bodies issued “legislation” and, where their guidelines were met, the law was satisfied. [ 61 ] As I have noted above, that is not correct. The standards for medical practitioner conduct flow from Parliament, the Legislatures, and the courts. It is no excuse for a medical professional to say that their practices need not conform to the legal standard until those legal standards have ‘trickled down’ to individual practitioners.

If an ‘informed consent form’ provided by a medical professional association is inadequate, then the form does not discharge a medical professional’s obligation. [ 62 ] I reject that this form can provide informed consent simply due to its content and the manner in which it was signed. The form was provided to Mr. Malinowski prior to his examination; the chiropractic office receptionist instructed he read and sign it. Mr. Malinowski says he followed those instructions, and I accept his statement. Nonetheless I have two main concerns about the effect of his having done so.

First of all, the last paragraph of the form says the patient has already spoken to and been informed by the chiropractor: I acknowledge that I have discussed, or have had the opportunity to discuss, with my chiropractor the nature and purpose of chiropractic treatment in general and my treatment in particular (including spinal manipulation) as well as the contents of this Consent. Counsel for Dr.

Schneider argued strenuously that a document signed prior to disclosure and discussion of a proposed treatment and its alternatives could somehow be validated by that patient later having an opportunity to ask questions about the proposed therapy. That result is both absurd and contrary to the guiding principles of the informed consent process: that a patient must have a real and effective opportunity to know the nature of a proposed medical treatment, and then choose whether or not to have that treatment. As Yamauchi J. concluded in Dickson v.

Pinder , at para. 84 , “[t]hat approach makes a mockery of the jurisprudence flowing from the doctrine of informed consent since Hopp.” [ 63 ] If a medical professional wishes to point to a document and say “this form indicates I obtained consent of my patient”, then

any consultation procedure indicated by that document to have occurred must correlate accurately with the consultation process that in fact had occurred. That was not the case here. [ 64 ] Canadian courts have expressed concern that any form, on its own, can properly educate and inform a prospective patient. In Coughlin v.

Kuntz (1987), 1987 CanLII 2584 (BC SC) , 17 B.C.L.R. (2d) 365 at 393, 42 C.C.L.T. 142 (B.C.S.C.) , affirmed 1989 CanLII 7283 (BC CA) , 42 B.C.L.R. (2d) 108 , 2 C.C.L.T. (2d) 42 (B.C.C.A.) , the Court concluded a consent form does not discharge the duty of a surgeon to consult with a patient: In my opinion, the consent forms signed by the plaintiff cannot in any way protect the defendant as I find the defendant failed in his duty to explain and fully disclose all relevant information to the plaintiff relating to his proposed neck surgery.

The time to make such an explanation and provide the full disclosure, particularly in a situation such as here of elective surgery, was in the defendant's office in a setting where there was adequate time for making the explanation and settling the plaintiff regarding any questions he may have had about the proposed surgery . The signing of the consent forms by the plaintiff in the hospital on the eve of surgery was a mere formality incapable of satisfying the defendant's duty of disclosure.

For consent forms to have any legal effect there must be an adequate knowledge base on the part of the patient before the exempting language of the form will provide its intended protection for the surgeon or the hospital from adverse effects of the operation . [Emphasis added.] (See also Archibald v. Kuntz , [1994] B.C.J. No. 199 (QL) (B.C.S.C.) ; Byciuk v. Hollingsworth , 2004 ABQB 370 at para. 33 , 358 A.R. 312; Martin v. Findlay , 2008 ABCA 161 at para. 38 , 432; Tremblay v.

McLauchlan , 2001 BCCA 444 at para. 28 , 91 B.C.L.R. (3d) 264.) [ 65 ] The effect and operation of consent forms has been addressed in the context of chiropractic treatment. Justice Yamauchi in Dickson v. Pinder , at para. 87 , concluded that a consent form did not document informed consent as the patient in that matter did not understand “... the meaning and implications of the statements contained in that form.” [ 66 ] This approach, that an informed consent form is relevant where it substantially explains therapy and risks, was expanded upon in Kern v. Forest , 2010 BCSC 938 .

Kelleher J. rejected defence arguments that an informed consent form had been adequate, and concluded that, since informed consent required a patient know of alternative therapies and risks associated with treatment, the form is meaningless without that information: 122 In my view, the written consent form is inadequate. There is no description of alternative treatments . It minimizes 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 . [Emphasis added.] Similarly, if a chiropractor simply explained and recapitulated the contents of an inadequate informed consent form, then that explanation was similarly insufficient (para. 124). [ 67 ] Some recent Alberta decisions took a different approach. In Loffler v. Cosman , 2010 ABQB 177 , the Court concluded that a standard consent form provided by a chiropractic professional organization was sufficient to discharge a chiropractor’s duty to consult.

The Court relied specifically on expert testimony of typical practice by chiropractors. A signed consent form was adequate proof of informed consent in Olsen v. Jones , 2009 ABQB 371 , 11 Alta. L.R. (5th) 203 . However in that instance the patient had an extensive prior history of chiropractic treatment and the manner in which the document had been co-signed by the chiropractor indicated both the patient and chiropractor had discussed its contents. [ 68 ] I prefer the approach taken in Dickson v. Pinder and Kern v. Forest . A form that purports to provide informed consent ought to be assessed on its substance.

Regardless of common practices within a profession, a medical treatment consent form that fails to discharge the requirements of informed consent does not prove informed consent was granted, even if it was signed. [ 69 ] I conclude the informed consent form signed by Mr. Malinowski did not, on its own, discharge Dr. Schneider’s duty to inform. A health professional has an obligation to disclose any “special or unusual risks”, severely deleterious consequences of a therapy that are known though infrequent. Dr.

Schneider acknowledged that permanent nerve injury, including paralysis, loss of sensation, and CES are rare but possible consequences of chiropractic adjustment. While intervertebral disc injury is a cause of these symptoms and is mentioned in the consent form, the consequences to the patient of treatment are what must be disclosed: Martin v. Findlay ; Martin v.

Capital Health Authority ; Kern v. Forest . That is the critical information that is absent in this case. [ 70 ] My second main concern regarding Mr. Malinowski’s reading and signing of the informed consent form arises out of Mr. Malinowski’s limited education and the fact that English is not his first language. While Dr. Schneider may not have been aware of Mr. Malinowski’s educational background, he should have been aware, as was obvious at trial, that English is not his first language. Mr. Malinowski speaks with a reasonably heavy accent.

When faced with a patient whose personal characteristics might suggest there is a language barrier to his or her understanding of a consent form, the medical practitioner ought to take steps to ensure that language limitations have not prevented or limited the patient’s understanding of the form that the patient has been asked to read and sign.

A person of limited education, or one with a limited knowledge of the English language, or one who is under the effects of medication or some other factor which might limit concentration or capacity, may have difficulty understanding concepts such as “spinal joint dysfunction”, “spinal mobility”, “contra-indicated”, or other words or expressions used in the form. When faced with such a patient, medical practitioners should ensure that the patient understands the meaning of the words and expressions as well as the overall meaning of the document. b.

Post-diagnosis and Pre-treatment Consultation - Risk of Treatment [ 71 ] As I have previously indicated, I have no reason to believe Dr. Schneider departed from his usual practice of consulting with Mr. Malinowski in relation to the proposed February 26 treatment. Accordingly, he would have described the proposed treatment and its possible side effects, alternatives to that chiropractic treatment, and the consequences of not having any treatment. Dr. Schneider’s testimony reveals two problematic aspects of the pre-treatment consultation. [ 72 ] First, Dr.

Schneider explained that chiropractic adjustment could possibly result in disc and nerve injury. During cross- examination Dr. Schneider indicated he did not explain the symptoms that may flow from those injuries: Q. You advised him of the possibility of numbness and pain in his legs? A. Which is one of the primary indicators of a disc injury proceeding. Q.

You did not advise him that there was a rare possibility that the treatment you proposed could cause irreparable harm to the nerves in his lower back resulting in cauda equina syndrome and pain, numbness, inability of the muscles to contract and decreased reflexes in his legs, and bladder dysfunction, inability to control defecation, and sexual dysfunction, did you? A. No.

However I would have mentioned the fact that if the condition worsened, he would require, he may require surgery to correct any discal pathology. [ 73 ] As I concluded above, the symptoms and consequences of CES are a special or unusual risk that ought to have been disclosed to Mr. Malinowski prior to his adjustment. That did not occur and, on that basis, I conclude informed consent was not obtained. c. Post-diagnosis and Pre-treatment Consultation - Alternative Treatments [ 74 ] The manner in which Dr. Schneider described alternative non-chiropractic options is also of concern.

While he stressed the benefits of chiropractic adjustment, alternatives such as surgery and pharmaceuticals were described in a manner that seems alarmist: surgery can lead to death and drugs can cause heart attacks or addiction. In contrast, Dr. Schneider failed to explain the full potential consequences of the chiropractic adjustment which he was proposing to administer. [ 75 ] A medical professional should not be a salesman of a service. Chiropractic may be a business, but health professionals are expected to conduct themselves to benefit their patients and not themselves. The promotional tone of Dr.

Schneider’s comments are echoed in the first paragraph of the written informed consent form:

In our experience the most effective treatment for spinal joint dysfunction involves the adjustment of spinal joints. Specific adjustments can reduce pain, tenderness and muscle spasm, improve spinal mobility as well as provide many other beneficial effects. [ 76 ] Later in this judgment I evaluate expert testimony as to whether Dr. Schneider was correct in immediately treating Mr. Malinowski with a chiropractic adjustment. I conclude, on the basis of expert testimony, that bed-rest and analgesics would have been an acceptable, if not preferable, immediate response to Mr. Malinowski’s condition.

That fact was not related to Mr. Malinowski by Dr. Schneider, and that omission is significant and problematic. [ 77 ] This trial does not require the Court to address the efficacy or non-efficacy of chiropractic treatment. While I understand the enthusiasm of a practitioner in describing their discipline and its benefits, proper conduct for a health professional also requires a certain degree of detachment and objectivity.

The minimization of the “special and unusual” risks of chiropractic, coupled with emphasis on the most dire potential consequences of alternatives to chiropractic adjustment, is not appropriate. It can distort the perception of a patient, particularly one who is inexperienced and naive. I conclude that in this sense Dr. Schneider did not discharge his obligation to inform his patient, impeding Mr. Malinowski’s right to choose an appropriate response to his injury. d. Informed Consent prior to the February 27 Treatment [ 78 ] As Mr.

Malinowski did not provide informed consent at the February 26 appointment, the cursory February 27 pre-treatment consultation cannot have provided informed consent for the adjustment performed that day. 4. Informed Consent - Conclusion [ 79 ] I conclude that, while Mr. Malinowski did sign an informed consent from on his February 26 visit to Dr. Schneider’s office, and he did verbally authorize chiropractic treatment during the February 26 and 27 visits, those steps did not constitute informed consent. C. Would Mr.

Malinowski Have Agreed to Treatment if Properly Informed? [ 80 ] A failure to inform and to obtain consent can lead to an award in tort only if a patient would not have agreed to the treatment if properly informed of the treatment, its risks, and alternatives. This rule relates to causation: one person only injures another when that person causes the other’s injury. A health professional causes an injury when that health professional’s information and advice changes the form of treatment that would be chosen by a patient. 1. Legal Test [ 81 ] The legal test for this analysis is clearly established. In Reibl v.

Hughes , 1980 CanLII 23 (SCC) , [1980] 2 S.C.R. 880 , 114 D.L.R. (3d) 1 , Laskin C.J.C. considered the question of whether a patient’s hypothetical choice to engage in or refuse treatment should be based strictly on the testimony of the patient at trial: ... Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient's position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it.

The patient's particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon's recommendation. Admittedly, if the risk of foregoing the surgery would be considerably graver to a patient than the risks attendant upon it, the objective standard would favour exoneration of the surgeon who has not made the required disclosure. ...

In saying that the test is based on the decision that a reasonable person in the patient's position would have made, I should make it clear that the patient's particular concerns must also be reasonably based ... In short, although account must be taken of a patient's particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.

[ 82 ] Cory J. succinctly described this ‘objective/subjective’ assessment as “... whether a reasonable person in the circumstances of the plaintiff would have consented to the proposed treatment if all the risks had been disclosed.” ( Arndt v. Smith , 1997 CanLII 360 (SCC) , [1997] 2 S.C.R. 539 at 554, 148 D.L.R. (4th) 48 ). 2. Evidence [ 83 ] Therefore, Mr. Malinowski’s characteristics and testimony are very relevant to this question. He testified that he was not warned by Dr.

Schneider of the possibility that the proposed chiropractic treatment could result in permanent nerve damage and associated disorders, and that correlates with Dr. Schneider’s explanation of his usual practice. When asked at trial whether he would have agreed to chiropractic treatment knowing that his condition could be worsened, or that permanent pain, and/or urinary, bowel, sexual, and muscular dysfunction might result, Mr.

Malinowski stated he would have refused treatment: “I would say thank you very much, and I would ask safety guys to take me back to the site, and I will ask for a taxi to drive me to my doctor.” [ 84 ] Mr. Malinowski had not previously had chiropractic treatments, but was clearly familiar and comfortable with consulting medical physicians. He had regular medical doctors, Dr. Sawicki and Dr. Chiu. When his condition worsened after the February 27 treatment, Mr. Malinowski first called Dr.

Chiu for an appointment and, when she was not available, requested the work-site safety personnel to call a taxi to take him to Dr. Sawicki. He followed Dr. Sawicki’s subsequent instructions. [ 85 ] When left to his own devices he chose to rest and sleep, both at the work-site and when he returned home. He used pharmaceuticals to treat his pain. His responses were generally passive, he lay down on the floor of the bus when traveling to and from the work-site, and he had other people assist when he moved, dressed, and undressed. 3. Analysis [ 86 ] I conclude that Mr.

Malinowski would not have consented to or undergone chiropractic treatment had he been properly informed as to the risks associated with that treatment. Mr. Malinowski had no history of using chiropractors. Indeed, it is highly unlikely that he would have sought chiropractic treatment at all, had he not been taken to Dr. Schneider’s office by the safety personnel. I accept that he would have responded with caution and refused treatment had he been informed by Dr. Schneider of the full risks of chiropractic adjustment. As is obvious by Mr.

Malinowski’s ongoing disabilities, nerve damage to the lower spine can be very serious. It is very clear from his conduct after February 25 that, when given an alternative as to how to address his injury, he was passive. He rested, used pharmaceuticals to treat pain, and slept when he could. [ 87 ] Later I conclude that bed-rest and analgesics were a viable alternative response to a lower back injury of the kind reported on February 26. This ‘wait and see’ strategy for the first several days post-injury is an appropriate response. I have no doubt that, had Mr.

Malinowski been told that bed-rest was a safe alternative, he would have preferred and chosen that response. That would have been a reasonable response for a person who had no prior exposure to chiropractic adjustment, who usually relied on non-chiropractic medical techniques, and who had been properly informed that the person might avoid potential very severe consequences by a non-chiropractic and passive initial response. [ 88 ] Mr. Malinowski’s preferred medical response to any subsequent deterioration in his condition was to consult with one of his physicians, Dr. Chiu or Dr. Sawicki.

That response, turning to familiar sources for medical care, is objectively reasonable for a patient with Mr. Malinowski’s characteristics. [ 89 ] As a result, I conclude that a failure by Dr Schneider to inform Mr. Malinowski of the risks associated with the proposed chiropractic treatment and the existence of safe alternatives caused Mr. Malinowski to consent to the February 26 and 27 treatments. I further conclude that Mr. Malinowski’s response, if properly informed, was objectively reasonable and would have been to decline the chiropractic adjustment.

Therefore, if the February 26 and 27 chiropractic treatments caused Mr. Malinowski’s injuries, then Dr. Schneider is liable for the damages that resulted from his negligence in not obtaining informed consent.

D. The Role of Workplace Health Support and Associated Professionals [ 90 ] There is an unusual aspect to this particular case and that is the connection between the employer and Dr. Schneider. Dr. Schneider treated patients from the construction site because he was specifically referred those patients as part of a contractual relationship, which extended to groups of workers being treated on-site each day. Work-site safety personnel directed Mr. Malinowski to Dr. Schneider. What are the implications of that relationship on whether Mr.

Malinowski had been properly informed? [ 91 ] As the analysis that follows indicates, I conclude that the relationship between Dr. Schneider and Mr. Malinowski’s employer is relevant in a number of senses and, though it does not affect my analysis above, it nevertheless deserves consideration. 1. The Relationship Between Dr. Schneider and the Alberta Construction Joint Venture [ 92 ] Dr.

Schneider testified that in 2001 and 2002 a close relationship had developed between himself and the businesses that were involved in construction of the Shell Upgrader, a large petrochemical industry construction project in the Fort Saskatchewan area [the “Alberta Construction Joint Venture”]. The large number of workers and the character of the construction activities at the Shell Upgrader led to a large number of non-emergency occupational injuries which could not be managed by the local medical infrastructure. Dr. Schneider soon was receiving patients delivered by taxicab from the work-sites.

Ultimately he negotiated a contract to treat patients at a work-site facility. Dr. Schneider estimated he daily treated between 4 and 15 patients at this on-site facility, between October 2001 and July 2002. Initial consultations with any new patient were still conducted at his Fort Saskatchewan clinic. He indicated that the on- site clinic also allowed for close coordination between management, who assigned tasks, and medical personnel, who assessed worker capacities. [ 93 ] Dr.

Schneider stressed that there was a separation between himself and the work-site’s employers: ... aside from the clinical documentation that I’m required to keep and that I kept, the [Alberta Construction Joint Venture] occupational health staff were always concerned with perception. They wanted to make sure that we weren’t thought of as a company doctor, which we were not. We were independently contracted doctors working under the WCB umbrella. But they wanted to make sure that these workers were happy, because a happy worker is a productive worker. That said, Dr.

Schneider was clearly focused on the results sought by his employers - minimum disruption in the work schedule, clear documentation for WCB purposes, and that work status not be affected. [ 94 ] Mr. Malinowski’s testimony provides additional indication of just how this relationship between chiropractor and work-site employer operated. Essentially, the safety officers recruited Dr. Schneider’s patients. On February 26 Mr. Malinowski returned to work and reported to the first aid trailer and rested.

He did not suggest an alternative response to his condition, but instead followed the instructions of the site safety officers: When I woke up, I had two safety guys saying that, Eric, get ready, we’re going to take to great chiropractor. He’s going to help you. So they helped me. They put me up: I put my arms around them, and they carried me to the company truck. Together they drove to Dr. Schneider’s office in Fort Saskatchewan. [ 95 ] Mr. Malinowski relied on health professionals to assist in his care and on the instructions he received from work-site safety personnel.

When he was first injured on February 25 he went to the first aid trailer for assistance. When told to walk around later that day by a nurse, he complied. [ 96 ] At Dr. Schneider’s Fort Saskatchewan office he spoke to Dr. Schneider, who reassured Mr. Malinowski about his abilities.

Again, Mr. Malinowski depended on persons he believed were professionals. Q. Did Dr. Schneider say anything [to] you to about his abilities? A. That he’s a doctor and, don’t worry, I’m going to take care of you. There’s lots of guys like you coming because it’s, like, heavy job, and lots of - and I helped out lots of guys. So basically I give myself to the professionals because I was in pain and drugged up. I didn’t know what to do . [Emphasis added.] [ 97 ] Mr. Malinowski’s last comment is significant. He did not know how to respond to his condition. On February 27 he met with Dr.

Sawicki because he knew something was wrong and he felt his condition was deteriorating, “I ask him for help, because I don’t know what’s going on .” [emphasis added]. Furthermore, on cross-examination, when asked about his incomplete memories of the chiropractic consultations and treatments as his condition worsened, he acknowledged his memory was blurry, but very simply responds “I was scared.” [ 98 ] Subsequent medical examination makes clear Mr. Malinowski was seriously injured. He testified, and I accept, that between February 25 and 27 he was uncertain of how to respond to his condition.

Understandably, he was frightened. Nevertheless

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