Reid v. Maloney, 2010 ABQB 794

Court of Queen ’ s Bench of Alberta Citation: Reid v. Maloney, 2010 ABQB 794 Date: 20101214 Docket: 0203 02967 Registry: Edmonton Between: Marlene Reid Plaintiff - and - Kevin Maloney Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________

Summary............................................................................................................................. Page: 2 Background Facts.............................................................................................................. Page: 2 Issues...................................................................................................................... Page: 4 Discussion.............................................................................................................. Page: 5 1. Duty of Care Owed by a Chiropractor to his Patient..........................

Page: 5 2. The Standard of Care of a Chiropractor............................................. Page: 5

3. Did Dr. Maloney obtain Mrs. Reid’s Informed Consent to Treatment? Page: 6 Evidence respecting informed consent....................................... Page: 6 Evidence of Mrs. Reid................................................................... Page: 6 Evidence of Dr. Maloney............................................................... Page: 8 Informed Consent - Expert Evidence......................................... Page: 14 Evidence of Dr. Conway................................................. Page: 14 Evidence of Dr. Henderson............................................

Page: 15 Informed Consent - Findings of Fact......................................... Page: 17 Informed Consent - The Law and Application of Law to the Facts Page: 19 Evidence re Risk of Harm........................................................... Page: 24 4. Did Dr. Maloney otherwise meet the standard of care?.................. Page: 30 Failure to Properly Diagnose..................................................... Page: 30 Failure to Diagnose - Evidence................................................. Page: 30 Failure to Diagnose - Expert Evidence.....................................

Page: 35 Failure to Properly Diagnose -Findings of Fact....................... Page: 41 Failure to Properly Diagnose – the Law and Application of the Law to the Facts........................................................................................... Page: 43 5. Causation – Was Dr. Maloney’s treatment of Mrs. Reid the actual and legal cause of her injuries?......................................................................................... Page: 46 Causation - Evidence..................................................................

Page: 46 Causation - Expert Evidence...................................................... Page: 53 Causation - Findings of Fact...................................................... Page: 62 Causation - Legal Principles and Application to the Facts..... Page: 64

Summary : A woman with a history of back problems injured her back playing with her grandchild. Because the back pain failed to settle after several weeks, she visited a chiropractor who manipulated her back. After her second visit, her pain intensified and moved to involve the other side of her body and she experienced sensory changes. Ultimately, she was diagnosed with an acute disc protrusion which had to be surgically repaired. She sued the chiropractor claiming failure to properly diagnose her, failure to obtain her consent and failure properly to treat her.

At issue was whether the chiropractor had properly diagnosed her, properly obtained her consent, and properly treated her. Background Facts : [ 1 ] On about February 15, 2000, 48 year old Marlene Reid was playing with her then less than two year old grandson, who weighed 23 pounds. After he jumped into her arms from one of the steps on a stairway, Mrs. Reid turned and felt a pain in her left buttock or hip. Mrs. Reid had suffered from similar pains in the past and had dealt with them by obtaining treatment from her physiotherapist who treated pain with heat and what Mrs.

Reid called “pushing in the buttock area to loosen” it. Mrs. Reid was not certain of the date of the incident with her grandson but both counsel agreed that it likely occurred about February 15, 2000.

[ 2 ] Mrs. Reid was no stranger to back problems and had a long history of them stretching back into the 1980s. By 2000, she had undergone two previous lower back surgeries, one of which occurred when she was only 27 years old. The evidence provided respecting her previous surgeries was sparse but it appears she underwent surgery in both 1984 and in 1988. Dr. Narang operated on her for a herniated L4-L5 disc in 1984. Dr. Glasgow operated in 1988 to relieve spinal stenosis due to a sequestrated intervertebral disc at L5-S1 on the left.

As already indicated, she also had a history of episodic lower back pain since the earlier surgeries. [ 3 ] After the incident with her grandson, Mrs. Reid, who worked full time as an insurance agent, was unable to see her regular physiotherapist because things were busy at her office. She found it impossible to make an appointment with the physiotherapist at a convenient time and so went to massage therapy instead. The massage therapy records indicate that Mrs. Reid’s first treatment occurred on February 18, 2000. Mrs.

Reid felt that massage alleviated the pain somewhat but it was still there. [ 4 ] Although she continued to have pain, Mrs. Reid’s evidence was that she continued to function. She continued to work full time in the insurance agency, wore her regular high heeled shoes, and continued to participate in all of her other regular daily activities. She did not recall that the pain got any worse during the period between about February 15, 2000, when she caught her grandson and March 9, 2000, when she first saw the defendant chiropractor, Dr. Kevin Maloney or that it moved around at all.

Nor did she recall any other event during this period that could have exacerbated her back problem. [ 5 ] However, because her symptoms persisted, Mrs. Reid took the advice of a friend at work who suggested that she see a chiropractor and who suggested, particularly, Dr. Maloney, whom the friend said was the son of her own chiropractor . Dr. Maloney practiced in St. Albert where Mrs. Reid lived and worked. [ 6 ] Mrs. Reid decided to take this advice even though she had never before sought treatment from a chiropractor. She obtained an appointment and saw Dr. Maloney for the first time on Thursday, March 9, 2000.

She saw him again the next day and on a third occasion on the following Monday, March 13, 2000. [ 7 ] Dr. Maloney is a 1997 graduate of the Palmer School of Chiropractic in San Jose, California, a school often referred to as Palmer West during the trial. He wrote and passed the Canadian Board of Chiropractors examinations and the Alberta provincial clinical examinations in 1997 and has been a licensed chiropractor since November 13, 1997. After graduating, Dr. Maloney set up practice as a sole practitioner in St. Albert, and had been in practice for over two years when he first saw Mrs. Reid as a patient.

He estimated that about 35% of his patients suffered from symptoms of low back pain. [ 8 ] Dr. Maloney treated Mrs. Reid on all three of her visits to him. On at least the first two visits, Dr. Maloney employed spinal manipulative therapy (“SMT”) in his treatment of Mrs. Reid. Mrs. Reid thought her back felt better after the first visit but after the second, she felt much worse. Her pain had both intensified and moved from being mainly left sided to involving her right side as well. In addition, she experienced sensory changes in her leg and felt that she could not walk properly.

Although she had made an appointment for later on Monday, March 13, her symptoms were so intense during the weekend of March 11-12 that she went back to see Dr. Maloney first thing Monday morning. On this visit, she was accompanied by her husband Dan Reid. By the end of the third visit, Mrs. Reid felt even worse. She was not treated again by Dr. Maloney. [ 9 ] Dr. Maloney was concerned about Mrs. Reid’s condition when he saw her on the morning of March 13 and, after treating her, advised her to go to the emergency department of the local hospital. However, Mrs.

Reid was worried she would have to wait a long time if she went to the hospital and elected, instead, to go directly to the office of her family physician, Dr. Gray. Dr. Maloney wrote a letter to Dr. Gray, providing some information to him about Mrs. Reid’s then condition, the history, and what his concerns were, and Mrs. Reid took this letter when she went to Dr. Gray’s office directly from Dr. Maloney’s. Her husband accompanied her and did the driving. [ 10 ] Dr. Gray’s chart indicates that Mrs. Reid was in great pain and very fearful when she came to his office on March 13.

He prescribed analgesics and he, too, suggested she go to the hospital emergency department. The next day she did. For the next two months, she remained very symptomatic and was able to do very little. Her memory about this time period is compromised because she was taking strong opiate based analgesics. It is clear from the medical evidence, however, that she sought and obtained medical help from various other medical practitioners.

[ 11 ] Mrs. Reid’s husband, Dan Reid sought an explanation from Dr. Maloney respecting what had happened. Dr. Maloney wrote a letter to Mr. and Mrs. Reid, dated March 24, 2000, in response to this request. This letter was made an exhibit at trial. [ 12 ] Eventually, after obtaining an MRI, she was diagnosed with an acute L4-5 disc protrusion and had surgery on April 10, 2000. The extrusion was described as large in the operative notes. She had further surgery on the same area of her back on September 28, 2000 when two disc fragments were removed as well as scar tissue. After her surgeries, Mrs.

Reid had a long recovery period but she is now substantially better. [ 13 ] Mrs. Reid sued Dr. Maloney claiming that his treatment had caused or contributed to her back injury and alleging that he had failed to properly diagnose her, failed to obtain her consent to treatment and failed properly to treat her. Dr. Maloney denied that his treatment of Mrs. Reid had caused or contributed to her injuries and said that he had met the standard of care required for chiropractors in his diagnosis and treatment of Mrs. Reid and in obtaining her consent to this treatment.

Issues : [ 14 ] There are five issues for resolution in this decision: 1. Does Dr. Maloney owe Mrs. Reid a duty of care? 2. What is the standard of care of a chiropractor? 3. Did Dr. Maloney meet the standard of care by obtaining Mrs. Reid’s informed consent before treating her? 4. Did Dr. Maloney otherwise meet the standard of care? 5. Was Dr. Maloney’s treatment of Mrs. Reid the actual and legal cause of her injuries? [ 15 ] The onus is on Mrs.

Reid to prove all elements of each issue on a balance of probabilities: Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada, 4 th ed. (Toronto: Thomson, 2007) at 212 (“Picard & Robertson”); Waap v. Alberta, 2008 ABQB 544 , at paras. 29-30 . [ 16 ] Standard of care issues must be addressed before dealing with causation: McArdle Estate v. Cox , 2003 ABCA 106 , at para. 25 . Discussion : 1. Duty of Care Owed by a Chiropractor to his Patient : [ 17 ] The first question to be considered in any action for negligence is whether the defendant owed a duty of care to the plaintiff.

However, in the case of the relationship between a health care professional and a patient, innumerable courts have already recognized

that this relationship gives rise to a duty of care. Consequently, precedent has already established that Dr. Maloney owed a duty of care to Mrs. Reid as his patient and it is unnecessary to undertake a full fledged duty of care analysis: Mustapha v. Culligan of Canada Ltd ., 2008 SCC 27 . Dr. Maloney owed a duty of care to Mrs. Reid as his patient. 2. The Standard of Care of a Chiropractor : [ 18 ] Courts have held that chiropractors are to be treated like other medical practitioners and the principles that relate to medical professionals other than chiropractors apply to chiropractors as well.

A recent decision of this Court clearly articulated the standard of care with particular reference to chiropractors. In Olsen v. Campbell Jones, 2009 ABQB 371 , para. 10 , Crighton, J. described the standard of care that a chiropractor must meet 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”. This definition was quoted with approval by Yamauchi, J. in Dickson v. Pinder, 2010 ABQB 269 . It provides a clear and concise definition of what standard Dr.

Maloney had to meet in his treatment of Mrs. Reid. [ 19 ] Mrs. Reid alleges that Dr. Maloney failed to meet the standard of care in two major areas: failure to properly inform Mrs. Reid of what treatment he planned to give her and to disclose to her the inherent risks of treatment or obtain Mrs. Reid’s consent to treatment, and failure to take an adequate history and to do adequate testing. He therefore did not properly diagnose her condition before commencing treatment. [ 20 ] I will examine each of these in the order that I have set them out above. In both, Mrs.

Reid bears the burden of proving, on a balance of probabilities, that Dr. Maloney breached the requisite standard of care. 3. Did Dr. Maloney obtain Mrs. Reid’s Informed Consent to Treatment? Evidence respecting informed consent : [ 21 ] On behalf of Mrs. Reid, it was argued that Dr. Maloney failed in his duty to obtain Mrs. Reid’s informed consent in three main areas.

He failed to advise her sufficiently of the treatment he proposed for what he had diagnosed; he failed to advise her of the risks of this treatment; and he failed to advise her of possible alternative treatments. [ 22 ] Both parties agreed that when Mrs. Reid first saw Dr. Maloney, she had low back pain and pain radiating into her left leg. Evidence of Mrs. Reid : [ 23 ] Mrs. Reid’s evidence was that before she saw Dr.

Maloney for the first time on March 9, 2000, his receptionist, Renée Cottingham handed her a document called Informed Consent to Chiropractic Adjustments and Care (the “Consent Form”) together with a one page form requesting certain information respecting her medical history (“patient history check list”). This occurred while Mrs. Reid was still in the reception area. The Consent Form read as follows: 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, on me by the doctor of chiropractic named below and/or anyone working in this clinic authorized by the doctor of chiropractic named below. I have had an opportunity to discuss with the doctor of chiropractic named below and/or with other office or clinic personnel, the nature and purpose of chiropractic adjustments and other procedures. I understand that results are not guaranteed.

I further understand and am informed that, as in all health care, in the practice of chiropractic there are some very slight risks to treatment, including, but not limited to, muscle strains and sprains, disc injuries, and strokes. I do not expect the doctor to be able to anticipate and explain all risks and complications and I wish to rely on the doctor to exercise judgment during the course of the procedure which the doctor feels at the time, based upon the facts then known, is in my best interests. I have read the above consent.

I have also had an opportunity to ask questions about its content, and by signing below I agree to the above mentioned chiropractic procedures. I intend this consent form to cover the entire course of treatment for my present condition. [ 24 ] Mrs. Reid did not recall discussing either the Consent Form or the patient history checklist with Mrs. Cottingham and simply signed the Consent Form in the reception area. Mrs. Reid also said she also asked no questions about this form when she later saw Dr. Maloney and no explanation was offered by Dr. Maloney. [ 25 ] Mrs.

Reid did agree that, following his examination of her, Dr. Maloney told her he diagnosed her as suffering from a “sprained/strain” back injury. She says she assumed, but was not told, that this injury was in the same general area of her back that had been causing her pain. She said, as well, that Dr. Maloney told her this was caused by a muscle pinching a nerve. She does not recall his saying anything about the possibility of a disc problem or a spinal problem or any discussion about alternative possible problems. She also does not recall that Dr.

Maloney discussed with her the option of simply doing nothing or any alternatives other than chiropractic manipulation. [ 26 ] Mrs. Reid recalled that Dr. Maloney also told her that the muscles in her lower back were extremely tired and he was going to pump her hips to loosen them. Mrs. Reid said, too, that Dr. Maloney asked about x-rays that had been taken at the Grandin Medical Clinic on March 7, 2000 but knew she did not have the results as yet. He told her that he was going to do the pumping to loosen the lower back and lessen her discomfort while waiting for the x-rays.

She did not recall that he said anything about putting pressure on her spine. She said that if he had mentioned putting pressure on her spine, she would have questioned that. She would have asked him, “I’ve had two surgeries is this a good thing to do?”. In cross examination, however, she agreed when it was put to her that Dr. Maloney had told her what adjustments he intended to do in order to try to correct the problem he had diagnosed and the purpose of these adjustments. [ 27 ] On March 10, according to Mrs. Reid, Dr. Maloney was running late.

He was about 20 minutes late for her appointment and told her when he saw her that he was already late for a hockey game, explaining he was the chiropractor for the local hockey team. To Mrs. Reid, Dr. Maloney seemed like a busy man. She did not discuss with him any new symptoms she was having and Dr. Maloney did not suggest he was going to try any other treatment. She says he told her that she had a bit of arthritis but that this was not uncommon for people of her age.

She said then he told her he was going to do the same thing he had the previous day but after beginning the treatment he told her that he would use more force than he had the previous day. She agreed that she told him that this would not be a problem. [ 28 ] She said that when Dr. Maloney did the more forceful push, there was an instant burning pain in her back and she felt like the air was pushed out of her lungs. She said she gasped and her head ‘snapped’ back to look at him. She said she asked what happened and Dr. Maloney told her that he had cracked her lower back. She said that Dr.

Maloney then told her that the back had to reposition itself and she would feel some discomfort. Her evidence was that there had been no discussion prior to this about repositioning her back. She said that Dr. Maloney gave her his business card and wrote his home telephone on the back of it. He told her to continue to ice her back and to call him if necessary. She said he then left while she was still on the chiropractic table. [ 29 ] She said she felt different than she had before the treatment. Her back, hips and legs felt weak and her legs and right hip hurt. The burning sensation remained in her back.

She said she got off the table herself, got dressed and ‘waddled’ out to her car because of the pain and weakness she felt. [ 30 ] On her third visit, Mrs. Reid did not recall that Dr. Maloney did any further tests or provided any further information to her before telling her that he was going to reposition her back. She did not recall that he said anything about her spine or that he said anything

else about the treatment he was going to do. There was no suggestion of alternative treatments or of the risks of treatment. She said if he had given her any indication that anything further would happen or she could have further pain as a result, she would not have agreed to further treatment. She said that he treated her with wedge shaped blocks under her hips and pushed on her hips and recalled that the examination table she was lying on dropped suddenly when he pushed. She also recalled being briefly treated with a machine called the spinolator. After these treatments, Mrs.

Reid said her pain was greatly increased. She described it as measuring 5 on a 10 point scale when she arrived and as being 10 out of 10 after the treatment. [ 31 ] Her husband Dan Reid, who was with her at the third visit, also did not recall that Dr. Maloney explained what he was going to do before doing it. Notwithstanding extensive cross examination, Mr. Reid would not agree that Dr. Maloney examined Mrs. Reid or did any testing of Mrs. Reid before beginning the treatment. Mr. Reid did recall Dr. Maloney telling him that he thought Mrs. Reid was going to be fine. Evidence of Dr. Maloney : [ 32 ] Dr.

Maloney testified firstly about the professional standards he was governed by. He said that the College of Chiropractors of Alberta (now called the Alberta College and Association of Chiropractors) (the “ACAC”) is the licensing body for chiropractors in Alberta. He said that ACAC periodically issues a publication called the Cornerstone and the spring of 1999 edition set out the ACAC’s recommended policy for obtaining written consent from patients. This policy included a recommended form of consent. [ 33 ] The publication was made an exhibit.

The applicable portion is as follows: On March 19, 1999 the following policy (“ACAC Consent Policy”) was adopted by Council and will be applicable to all members of the College of Chiropractors of Alberta effective immediately. Description of The Policy Written, informed consent must be obtained from all patients. Premises of the Policy As a matter of ethics and law, in order to obtain valid informed consent there is an obligation, prior to examination and treatment, to disclose any potential risk to the patient. The legal duty has been established by case law and, in some provinces by legislation. ...

Alberta’s chiropractors are currently utilizing written informed consent on a voluntary basis. Policy 1. Members will obtain from every patient..written Informed Consent before commencing any examination, diagnostic procedure or treatment. 2. The 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. 3. Chiropractors must provide patients the opportunity to ask questions concerning the risks involved and should answer those questions to the patient's satisfaction. 4.

In view that the best record of consent is one that is objectively documented, Informed Consent must be given in writing . [emphasis in the original] 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. Legislative Context Code of Conduct

19(1) The Code of Ethics of the Canadian Chiropractic Association, as amended from time to time, is applicable to chiropractors in Alberta. Canadian Chiropractic Association Code of Ethics 31 The chiropractor will respect this Code of Ethics, the Clinical Guidelines for the Practice of Chiropractors in Canada... Clinical Guidelines for Chiropractic Practice in Canada 1.1 Chiropractors must disclose to the patient..,the nature of the proposed treatment or procedure and any material risks including those that may be of a special or unusual nature. 1.5 Consent may be given orally or in writing.

Summary and Conclusion The policy.. [is]..based on increased recognition by society, and in the law, that patients have the right to know about risks and their health care options before consenting to examination or treatment. At Council’s request;[sic] attached is a sample of an informed consent release... The development and implementation of this policy is offered in the spirit of assisting members in meeting reasonable expectations of informed decision making on the part of the public. [ 34 ] The Consent Form completed by Mrs.

Reid is identical to the form recommended for use by the ACAC and attached to the ACAC Consent Policy and was the standard consent form used in his office when Mrs. Reid was Dr. Maloney’s patient. [ 35 ] Dr. Maloney said that he considered it a requirement of the ACAC that a written consent be obtained from the patient and that, while he instructed Mrs. Cottingham not to insist that a reluctant patient sign the written consent before he had seen the patient, if after discussion with him about any concerns, a patient still refused to sign the consent, he would discharge the patient without treatment. [ 36 ] Dr.

Maloney had no independent memory of Mrs. Reid’s first appointment with him on March 9, 2000 nor of her second appointment on March 10. He gave extensive testimony however, about what his standard practice was in dealing with a new patient. In giving his evidence of standard practice, Dr. Maloney was asked to assume that a patient had attended with complaints of low back and left leg pain, such as Mrs. Reid was suffering from when he first saw her. Dr.

Maloney was not asked if his standard practice for new patients suffering from these symptoms was different from his standard practice generally and, if so, in what fashion. [ 37 ] According to Dr. Maloney, his standard practice in 2000 was to ask Mrs. Cottingham, his receptionist, to give each new patient the Consent Form together with the patient history checklist; he instructed her to ask the new patient to complete these documents while the patient was still in the waiting area and before seeing Dr. Maloney. His standing instructions for Mrs.

Cottingham were to provide the form of consent to the new patient and ask them to read it through and sign it if they were comfortable doing so. If they were not, she was to tell them they could wait and speak to Dr. Maloney before they signed it. If they did not wish to sign the form in the reception area, Mrs. Cottingham was to put a yellow ‘sticky’ on the form before giving it to Dr. Maloney. That way it would not escape his notice when he saw the patient that they had not yet signed the Consent Form. [ 38 ] If the patient was prepared to sign the Consent Form without first speaking to Dr.

Maloney, they would return the completed Consent Form and the patient history checklist to Mrs. Cottingham who would open a new patient file. If the patient did not wish to sign the consent, Mrs. Cottingham would place the material on the new patient file, flagging the Consent Form as unsigned. Ultimately the patient would be seated in one of the examination rooms and asked to wait for Dr. Maloney.

[ 39 ] Mrs. Cottingham’s evidence respecting the procedure for having new patients complete the Consent Form was similar. She added, however, that she never pressured a patient to sign the form if they had questions but simply told them they were welcome to speak to Dr. Maloney. [ 40 ] On first meeting a new patient, Dr. Maloney said his standard practice, after engaging in a brief general chat, was to ask them what had brought them in to see him that day.

He said he would generally allow the patient to be as expansive as they wished to be in responding and that he might ask some questions to try to get them to elaborate. He said his general practice was then to obtain some past general medical history followed by a history of their presenting complaint. During this process, he would have in front of him the patient history checklist and used it as a guide to the questions he asked.

He said that generally he would ask at some point if the new patient had ever before been to see a chiropractor and that if they said they had not, he might tend to be more descriptive in order to ensure that the patient understood what he was talking about. [ 41 ] He said it was further his general practice to discuss the Consent Form with the patient, asking the patient if they understood it or had any questions about it. Although he had no memory of having discussed it with Mrs.

Reid, he said that based upon his standard practice, if she had any questions, he would have answered them. [ 42 ] His evidence was that it was his standard practice to start examining a patient only once he had completed the patient’s general history and the history of the presenting complaint and was satisfied that he understood the patient’s presenting complaint, and only once he had assured himself that the patient understood the Consent Form they had signed. [ 43 ] He described his standard practice respecting the tests he would conduct on a patient presenting with symptoms such as those exhibited by Mrs.

Reid on her first visit. After conducting these tests, Dr. Maloney said he would formulate a diagnosis and, if he still was not certain of the diagnosis, would order x-rays or laboratory tests.

He said that he would consider ordering x-rays if he was concerned about a disease process such as cancer, a fracture, or about instability in the spine. [ 44 ] His evidence was that once he had formulated a diagnosis, his standard practice was to inform the patient of what he thought the problem was and why it was causing them pain, using models of the body or skeleton and wall charts to illustrate his explanation. [ 45 ] If the patient said they understood what he had said about diagnosis, Dr.

Maloney said his standard practice would then be to talk about the treatment he was proposing, again using the models and the charts to describe what joints or muscles he would be dealing with. [ 46 ] In the case of Mrs. Reid, Dr. Maloney said that he diagnosed her with a lumbar spine strain/sprain, and this was clear from her chart. He pointed to a notation at the upper right-hand corner of the chart: “Lep” or “Lsp” SI. Dr. Maloney’s evidence was that in his shorthand, this meant lumbar spine strain/sprain, sacroiliac. Relying on his standard practice, Dr. Maloney said that he would have told Mrs.

Reid what her diagnosis was. [ 47 ] In cross examination, however, Dr. Maloney did not deny that he had told Dr. Court McAuley, the investigator for the College of Chiropractors who investigated the complaint Mrs. Reid made to the College, that he did not record a diagnosis on Mrs. Reid’s chart. [ 48 ] Dr. Maloney also pointed out that Mrs. Reid’s chart included a billing statement outlining charges for treatment. It contained the Alberta Health billing code ‘847’ which relates to “sprains and strains of other and unspecified parts of the back”, according to the billing code explanatory key.

He said this notation was also his recorded diagnosis. [ 49 ] From his review of the chart, Dr. Maloney said based on his diagnosis of Mrs. Reid’s problem, he concluded that a diversified side posture adjustment SMT would be the most effective treatment. Relying upon his standard practice, he said that he would explain the diagnosis to the patient tell them that he was not going to jump right into doing the adjustment but instead, would do what he termed a ‘dry run’ first. He said he would always ask the patient after the ‘dry run’ how it felt and whether they wanted to proceed with the actual treatment.

He said 99.9% did. He then described exactly how the patient was positioned for the treatment and the

manipulation he performed. He said his standard practice was always to record the treatments that he did. [ 50 ] When giving evidence about Mrs. Reid’s first appointment with him, Dr. Maloney said that after he had told Mrs. Reid his diagnosis and explained his proposed treatment, he then would have said something like this: If you’re all right with that, we will try this and see. You know we are not going to fix this in one visit likely but we will try and see how this works. Are you okay with that? I am going to explain as we go along.

If there’s any part of it that you’re uncomfortable with then just let me know and there’s other things that we can try. [ 51 ] Because he had no memory of this first visit with Marlene Reid, all of this evidence was based upon his standard practice. His assumption was that Mrs. Reid agreed to the SMT treatment because he would not have proceeded had she not. [ 52 ] Relying again upon his standard practice, Dr.

Maloney said in a second visit with a new patient with lower back pain radiating into the leg, he would begin by asking the patient how they were feeling and if they had any more questions before proceeding. He would also tell them what he proposed to do, even if that was simply to say he was going to do more of the same. [ 53 ] Dr. Maloney’s evidence was that because her chart indicated that Mrs. Reid felt somewhat better after her first adjustment, he did decide that he was going to do more of the same type of treatment on her second visit except that he was going to adjust a few more joints.

He said he would have told her this and asked her if she was okay with it and, again, based upon his standard procedure would not have proceeded unless she gave her consent. [ 54 ] Dr. Maloney did have some memory of Mrs. Reid’s third visit because it was unusual. He recalled that Mrs. Reid’s husband was with her when she arrived around 9 am on March 13. Based upon his notes, he said, Mrs. Reid reported to him that her condition had changed over the weekend. She reported bilateral leg pain beginning on Saturday. Additionally, according to his chart, Mrs.

Reid said that her left side now felt fine but that her right leg felt numb and tingling and she had pain down her posterior lateral thigh into her calf and toes. She had also had increased or severe muscle spasm in her right thigh and calf all weekend, according to his chart notes. He said she told him that her foot and leg strength felt normal and reported the ability to climb stairs in terms of having the strength to do so. However, she also reported that she could not feel the step under her foot. She told him, as well, that she had picked up the lumbo-sacral belt he prescribed and it did decrease the pain.

His notes indicated that she also said that the belt felt too tight over the hip. She also told him, according to the chart, that she had been taking Tylenol 4 all weekend but it was not helping. Further, according to his notes, she reported difficulty with defecation. Dr. Maloney said these symptoms were a change in clinical presentation and the problem now appeared to be something neurological. [ 55 ] This change in presentation caused him to have Mrs. Cottingham place a call to obtain a verbal report of the x-ray taken on March 7. [ 56 ] He recalled that Mrs.

Reid was in quite severe pain when she arrived for the March 13 visit and had to be helped either by her husband alone or by her husband along with Dr. Maloney into one of the treatment rooms. Dr. Maloney says he thought that he told Mrs. Reid that they were now looking at something that might not be what he originally thought it was and that she would likely have to see somebody else for either a surgical consult or at least further imaging. Dr. Maloney recalls that Mrs. Reid asked him if this problem could be fixed and he replied that he would try a couple of gentle things to try to relax the spasm. [ 57 ] Dr.

Maloney recalled, as well, telling Mrs. Reid that he was not going to do the side posture push, but instead to try and relax the muscles he would use some upholstered blocks. He described Mrs. Reid as being almost in a panic state because she was in so much pain and said he assumed that she agreed to this procedure, otherwise he would not have gone ahead with it. [ 58 ] Dr. Maloney described the use of wedges on Mrs. Reid, a treatment he described as gentle and designed to take pressure off the sacroiliac joints.

He agreed that he might have administered this treatment on a specialized chiropractic table called the Thompson drop table but denied that the drop mechanism on this apparatus had been used to treat Mrs. Reid. [ 59 ] Dr. Maloney also used another specialized chiropractic table called a spinolator table in his treatment of Mrs. Reid on March

13. He described this, as well, as a gentle treatment designed to relax Mrs. Reid and relieve her back spasms. Informed Consent - Expert Evidence : Evidence of Dr. Conway : [ 60 ] Dr. Philip Conway was called by the Plaintiff to give expert evidence and was qualified by agreement to give opinion evidence on the degree of care and skill reasonably expected from a normal and prudent chiropractor practicing in Alberta. Dr. Conway holds a Doctor of Chiropractic degree from the Canadian Memorial Chiropractic College in Toronto and is a chiropractor in private practice in Calgary.

He has been licensed to practice in Alberta since 1986. [ 61 ] In formulating his opinions, Dr. Conway relied on Dr. Maloney’s chart to determine what he had and had not done in the course of his discussions with Mrs. Reid before commencing treatment. [ 62 ] It was Dr. Conway’s opinion that when faced with a patient with a history like that of Marlene Reid, a chiropractor must do extensive testing. He said that to meet the standard of care required, a chiropractor must review these test findings with the patient, as well as formulate a diagnosis and discuss this with the patient.

In addition he said that a chiropractor must discuss proposed treatment before proceeding. He saw no evidence on Dr. Maloney’s chart of a diagnosis, any review of the test findings with Mrs. Reid or any discussion respecting proposed treatment. [ 63 ] Dr. Conway said it was his practice to explain to a patient exactly what he proposed to do in treating them, using words that anyone could understand. In respect to the SMT manipulation that Dr. Maloney’s chart indicated he administered on March 10, the L4 and L5 lateral process pushes, Dr.

Conway said before doing this adjustment, he would explain to a patient that he was going to try to rotate the vertebra back to its position by pushing on it. Dr. Conway said he would never perform this type of procedure on a patient without first explaining it to them in detail so that they could ask any questions they had and express any concerns.

He says this type of discussion is also necessary because the chiropractic association tells chiropractors to have these discussions and the College of Chiropractors encourages them to have these discussions: “so [that] everybody understand[s] what's going on, there's nothing hidden and there's no lack of understanding with the patient – so they don't say he just laid me down and adjusted me. I didn't know what was going on. It's a discussion about their health.” [ 64 ] Dr. Conway criticized Dr. Maloney’s chart because he said he was unable to determine that he had recorded a diagnosis.

In cross examination, it was pointed out to him that the chart also included the billing record which contained the Alberta Health billing code ‘847’ as the diagnosis. Dr. Conway confirmed by reading the codes that this number relates to “sprains and strains of other and unspecified parts of the back”. [ 65 ] Dr. Conway was also critical of Dr. Maloney’s chart because he could find no reference to a treatment plan being recorded. He said this did not comply with the standards for chiropractors. Evidence of Dr. Henderson : [ 66 ] Dr.

Donald Henderson was called as an expert by the Defendant, and was qualified by agreement to give opinion evidence on the degree of care and skill reasonably expected from a prudent chiropractor practicing in Alberta. [ 67 ] Dr. Henderson has a Doctor of Chiropractic degree from the Canadian Memorial College of Chiropractic (“CMCC”). He has been licensed as a chiropractor in Ontario since 1975 and is in private practice in Toronto.

He was also an instructor at CMCC for a number of years and was chair of the consensus committee of chiropractors who developed the 1996 Canadian Chiropractic Association Clinical Guidelines for Chiropractic Practice in Canada ( “Glenerin Guidelines” ). He also wrote the preface to these Guidelines.

[ 68 ] He was asked how a prudent chiropractor in 2000 would go about obtaining informed consent. In his response, Dr. Henderson made specific reference to the Consent Form signed by Mrs. Reid. He said this: It's just the way it's outlined here. It would be provided to the patient. In the course of the examination and history, you would be explaining what the patient's problem is and how you would intend to treat. [ 69 ] In Dr. Henderson’s opinion Dr. Maloney did obtain Mrs.

Reid’s informed consent by having her sign the form that was given to her in the waiting room. [ 70 ] He agreed in cross examination, however, that the statement respecting risks as found in the Consent Form was very general and that before a patient could assess risk, they must know what treatment is proposed. He agreed, as well, that this would particularly be so if that patient was seeing a chiropractor for the first time.

He also agreed that before treatment is commenced a chiropractor must provide a patient with a diagnosis and a suggested treatment and that it was also necessary to have a subsequent discussion about risks and benefits and, at least where the patient expresses concern, alternative treatment. He agreed further that one of the options that could or should have been discussed is that of receiving no treatment. He also agreed that the proposed treatment depended on the diagnosis made and the possible risks depended upon the treatment proposed. [ 71 ] It was Dr. Henderson’s opinion that Dr.

Maloney did correctly diagnose Mrs. Reid at her first visit with lumbar strain, and sacroiliac joint dysfunction. As did Dr. Maloney, Dr. Henderson pointed to the notation in the upper right-hand corner of Mrs. Reid’s chart as the recorded diagnosis. He interpreted Dr. Maloney’s notes in the same way as did Dr. Maloney in his evidence: their meaning was lumbar strain and sacroiliac joint dysfunction. Dr. Henderson pointed out, in addition, that this diagnosis was the same as that made by Dr. Zalesky on March 7 and by Dr. Gray on March 13. It was also Dr. Henderson’s opinion that Dr.

Maloney appropriately changed the diagnosis on March 13 to central canal stenosis and L5-S1 disc involvement (bulge). [ 72 ] Dr. Henderson was asked about the requirement for recording of a diagnosis and was referred by counsel for Dr. Maloney to a document called Standards of Practice. In the

preamble to his question, counsel stated that these standards are for the Province of Alberta. In the agreed to index to the exhibits binder, the relevant exhibit was referred to as “Chiropractic Profession Standard of Practice, College of Chiropractors of Alberta”. However, the document itself was not identified on its face.

Paragraph SP 10 of this document says: The patient clinical record will clearly and completely demonstrate that the clinician has: · elicited and recorded an appropriate case history; · performed and recorded an appropriate physical examination and other relevant investigations; · derived and recorded a diagnosis; · derived and recorded an appropriate treatment plan, consistent with the diagnosis and congruent with a treatment protocol taught at a CCE accredited chiropractic institution, (or technique systems approved by the Council/Registrar). [ 73 ] It was Dr.

Henderson's view that the Standards of Practice does not require that a chiropractor have recorded a diagnosis prior to commencement of treatment. In Dr. Henderson’s view, Dr. Maloney met the standard of care in making and recording a diagnosis. Informed Consent - Findings of Fact : [ 74 ] Mrs. Reid signed the Consent Form in the waiting room of Dr. Maloney’s office before she saw him for the first time.

[ 75 ] Mrs. Reid agreed that she read the Consent Form before signing it but neither counsel questioned her in respect to what she understood by reading it. Mrs. Reid has a Grade 12 education and had obtained her real estate licence at some point in the past. She had also had some form of post secondary education described as “map making from Northwestern”. There was no further detail about what this consisted of or what Northwestern was. Additionally, she has worked in the insurance industry for many years.

Based upon her education and her general experience, I conclude she must have had reasonable ability to read and a reasonable ability to understand English. [ 76 ] In his cross examination, counsel for Dr. Maloney, tried to establish that Mrs. Reid had specific and detailed medical knowledge about her back problems and the treatment proposed. He asked Mrs. Reid if Dr. Maloney ‘palpated’ her spine and she agreed that he did. He also asked questions about ‘sciatica’, what she understood it to be and whether the straight leg test that Dr. Maloney did was a test for sciatica.

From her answers, however, I concluded that she did not really understand exactly what sciatica was or that the straight leg raise test was a test for sciatica. Although she apparently said at discovery that she had studied anatomy, it appeared from her trial evidence that any understanding she had of the anatomy of leg pain as it related to disc problems was obtained after her surgery. I find that at the time of her first appointment with Dr. Maloney, Mrs. Reid did not have any real knowledge of anatomy. Nor did she have much detailed knowledge of medical terminology.

She did not understand what the word ‘sciatica’ meant. [ 77 ] Mrs. Reid does not have a medical education. I have concluded that in 2000 she did not have detailed medical knowledge and her knowledge of anatomy was likely no more than rudimentary. [ 78 ] Nor am I prepared to find, based upon what Dr. Maloney says is his standard practice, that he asked Mrs. Reid if she understood the Consent Form. There is certainly nothing in her chart to indicate that there was any discussion between Dr. Maloney and Mrs. Reid about the Consent Form. While Mrs.

Reid’s memory of what occurred over 10 years ago is not perfect, she denied that Dr. Maloney said anything to her about the Consent Form or asked her any questions about what she understood it meant. I find it unlikely that a discussion about the Consent Form would have completely slipped Mrs. Reid’s mind had it occurred. This was her first visit with a chiropractor and her lack of memory on this issue was not challenged on cross examination. My impression of Mrs. Reid was that she tried her best to give truthful answers at trial. I find that Dr. Maloney did not ask Mrs.

Reid any questions to confirm that she understood the Consent Form. [ 79 ] I do find on the evidence, however, that Dr. Maloney told Mrs Reid what his diagnosis was, even though there is nothing in his chart to indicate that he did so and even though he had no independent recollection of this. There is evidence, nonetheless, that he did so. Dr. Maloney said that once he had formulated a diagnosis, it was his standard practice to tell the patient what it was, using models or charts in his office to illustrate his explanation. Particularly in respect to Mrs.

Reid his evidence was that, based upon his standard practice, he believed that he would have explained to her that he thought she was suffering from a sprain/strain to her back. More importantly, however, at trial Mrs. Reid agreed in cross examination that Dr. Maloney had told her what his diagnosis was. Further, Mrs. Reid made a complaint to the ACAC about her treatment by Dr. Maloney sometime in 2001. In an undated statement authored by Mrs. Reid in support of her complaint, she acknowledged that at her initial appointment “Dr.

Maloney explained I apparently sprained a muscle in my lower back, pinching a nerve causing discomfort – sprained/strained injury”. This evidence is sufficient for me to conclude that Dr. Maloney did, indeed, tell Mrs. Reid what his diagnosis was. [ 80 ] On the other hand, there is no evidence that Dr. Maloney said anything specifically to Mrs. Reid about risks of treatment or about possible alternatives to treatment. He gave no evidence that it was his standard practice to tell a patient about alternatives to SMT therapy or of the risks of such treatment. Mrs.

Reid, as well, gave no evidence that he said anything to her either about risks or about alternative treatments. I find that Dr. Maloney gave Mrs. Reid no information about the risks of treatment or possible alternative treatments. [ 81 ] Dr. Maloney’s evidence, again based upon his standard practice, was that he would have explained to her that he thought that the greatest benefit to her could be obtained from the side posture manipulation. It was not clear from his evidence, however, that he said anything other than that or that he told Mrs. Reid he actually proposed to do a side posture manipulation.

In particular, there is no evidence that Dr. Maloney said that he intended specifically to target the joints of Mrs. Reid’s lower back in doing a side posture manipulation and no evidence that he explained adequately or at all, what this procedure entailed. While he may have asked Mrs. Reid if she had any questions, it is unlikely she had enough information to even be able to formulate a question to ask him. [ 82 ] Nor did Dr. Maloney testify that what he called his standard practice was what he invariably did. He spoke instead of what he normally did.

He had no independent memory of what he said or did on either March 9 or March 10 and had to rely only upon his chart

notes to determine what was said or done. While his habitual practices may be what he normally did, particularly on March 10, when the evidence was that he was late and rushing to get to the St. Albert Saints’ hockey game, it is certainly possible, in my view, that he did not follow his habitual practice. Thus, I do not place much weight on what he called his standard practice, in respect to the information he gave Mrs. Reid about what treatment he intended to administer on March 10, 2000. [ 83 ] Mrs. Reid’s evidence was that there was no discussion about applying pressure to her spine – only to her hip bones.

It is unlikely, as I have found, that she had sufficient knowledge of anatomy at the time to have any clear understanding that pressure on the hip bones would inevitably also put pressure on her lower back and, in any event, Dr. Maloney did not simply press on her hip bones. His evidence was that on March 10, 2000, he applied specific pressure as well to her L4 and L5 vertebral processes in an attempt to move them. [ 84 ] While Mrs. Reid agreed in cross examination that Dr.

Maloney had told her what adjustments he intended to do in order to try to correct the problem he had diagnosed and the purpose of the adjustments he intended to do, she was not asked to elaborate on what she understood about the adjustments he intended to do and their purpose. On the evidence, I conclude that Mrs. Reid thought the adjustment was to pump her hips and the purpose was to loosen the muscles in her back. This understanding was incomplete and inaccurate. [ 85 ] I conclude that Dr. Maloney gave Mrs. Reid only a very brief and general explanation of what treatment he proposed.

He may have used the words ‘side posture manipulation’ and may have told her that he was going to ‘pump’ her hips as Mrs. Reid described it. However, he did not give her any clear explanation of what muscles and joints he was targeting and Mrs. Reid did not understand that his goal was to reposition the joints in her lower back. She said that if she had understood this, she would have had questions because of her past history of back problems and I accept that this is so.

In my view, that she asked no questions makes it more likely that she did not understand the treatment proposed rather than that she did understand it, in this instance. [ 86 ] I conclude, as well, that Dr. Maloney did not explain, at all, what risks Mrs. Reid faced if she underwent the treatment he proposed and, as I have already said, the wording of the Consent Form, itself, did not aid Mrs. Reid to understand the potential risk. Informed Consent - The Law and Application of Law to the Facts : [ 87 ] In Dickson v. Pinder , 2010 ABQB 269 , Yamauchi, J. exhaustively reviewed the law respecting informed consent.

At para. 68, he summarized what is required of a medical practitioner in order to fulfill the requirement of obtaining informed consent: In Canada, a medical practitioner must inform a patient about certain key facts: 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. [ 88 ] The case law clearly establishes that a medical practitioner, including a chiropractor, cannot fulfill his duty to obtain informed consent from a patient simply by having the patient sign a written document.

It is but one factor for a court to consider in its determination of whether a medical practitioner has complied with his duty to disclose: for example Dickson at para. 86 . The wording of the form of consent at issue in Dickson differs considerably from that executed by Mrs. Reid. However, the principle is the same.

[ 89 ] Given this principle of law, I disagree with Dr. Henderson’s position in evidence in chief, that simply having Mrs. Reid sign the Consent Form was sufficient to fulfill Dr. Maloney’s obligation to obtain her informed consent. Informed consent is not simply a piece of paper. It is a process or dialogue between patient and chiropractor. Dr. Conway alluded to this in his testimony and Dr. Henderson agreed with this proposition in cross examination.

He explained that it was his practice when acting as clinical director at CMCC to explain the test findings to the patient, talk about the treatment plan and explain the treatment before embarking on any form of treatment. [ 90 ] The Consent Form signed by Mrs. Reid was the form recommended by the ACAC. Nonetheless, its wording is very general. It does not even specifically name Dr. Maloney. It refers to the “doctor of chiropractic named below” but the

section for the doctor’s name is blank and has not been completed. The Consent Form purports generally to give permission for any and all treatment that the chiropractor intends to do while absolving him or her of any responsibility to provide specific or ongoing information. While it mentions possible risks, these risks are also dealt with in a generic fashion and are certainly not specific to a particular diagnosis or to specific types of treatment. Some of the described risks, such as the risk of stroke, may not be relevant to the type of treatment that Mrs.

Reid underwent and, in any event, the risks are minimized and called “some very slight risks”. It is highly unlikely that simply by reading and signing this Consent Form, Mrs. Reid could be said to have been adequately informed of her diagnosis, the proposed treatment, alternative therapies or the possible risks. [ 91 ] As was pointed out in Kern v. Forest, 2010 BCSC 938 , quoted with approval in Malinowski v. Schneider , 2010 ABQB 734 , at para. 66 , informed consent requires that a patient know of alternative therapies and risks of treatment.

Here, as was the case in Kern , there is no description of alternative treatments in the Consent Form and risks are minimized. [ 92 ] Much evidence was tendered during the course of the trial about the requirements set out in the Glenerin Guidelines respecting informed consent. Dr. Conway was critical of Dr. Maloney’s chart and his treatment of Mrs. Reid because, in his opinion, the chart did not indicate that Dr. Maloney had adequately recorded a diagnosis or treatment plan and in failing to do so, had failed to comply with the Glenerin Guidelines in terms of obtaining Mrs. Reid’s informed consent. Dr.

Henderson was of the view that Dr. Maloney did comply with these Guidelines. [ 93 ] It was Dr. Conway’s view that the Guidelines are consistent with the Alberta Standards of Practice passed by the Council of the ACAC and consistent as well with what is taught in chiropractic colleges. [ 94 ] Dr. Maloney said that he tried to follow the Glenerin Guidelines in his practice. [ 95 ]

Chapter 1 of the Glenerin Guidelines sets out recommendations respecting informed consent. The

section of

Chapter 1 called ‘Overview’ says this: As a matter of ethics and law there is an obligation, prior to examination and treatment, to disclose any material risk to the patient in order to obtain a valid informed consent. This legal duty has been established by case law and, in some provinces, by legislation. Paragraph 1.1 says this: 1.1 Chiropractors must disclose to the patient,..the nature of the proposed treatment or procedures and any material risks including those that may be of a special or unusual nature.

Chapter 7 sets out the recommendations respecting clinical impressions and diagnosis. Paragraphs 7.1 and 7.2 relate to the issue of communication with the patient. They say this: 7.1 In the absence of a clear diagnosis a working diagnosis or clinical impression must be made and must be communicated to the patient

and recorded prior to treatment 7.2 Where a diagnosis is made, it must be communicated to the patient and recorded prior to treatment. [ 96 ] In my view, the Glenerin Guidelines are not determinative of the standard of care for chiropractors in obtaining informed consent. They say so on their face and clearly indicate that they are advisory only.

That this is so, is clearly set out as well in the disclaimer included at the beginning of the Guidelines, which says, in part: This document contains guidelines for the practice of chiropractic developed by a commission or consensus group of 35 persons established by the Canadian Chiropractic Association (CCA). It provides part of an ongoing effort by the chiropractic profession to provide improved guidelines for practice. Clinical guidelines are designed to assist clinicians by providing an analytical framework for the evaluation and treatment of common clinical problems.

These guidelines are not intended to replace a clinician's clinical judgment or to establish the only appropriate approach for all patients. They are intended to be flexible. They are not standards of care . [emphasis added] Adherence to them is voluntary. The Association understands that alternative practices are possible and may be preferable under certain clinical conditions. This document does not necessarily reflect the consensus of all members of the CCA, nor is it intended to be an official policy statement of the CCA.

It is not the purpose of this document, which is advisory in nature, to take precedence over federal, provincial or local laws which may affect chiropractic practice. [ 97 ] Compliance with the Glenerin Guidelines does not establish that a chiropractor has met the standard of care, just as failure to comply with the Guidelines does not establish that the chiropractor has not met the standard.

Adherence to the Guidelines is merely some evidence that the standard of care has been met. [ 98 ] In the same fashion adherence to the ACAC Consent Policy does not establish that a chiropractor has met the standard of care and failure to comply does not establish that the chiropractor has failed to meet the standard. [ 99 ] Both the Glenerin Guidelines and the ACAC Consent Policy are subject to

interpretation and reasonable people can disagree as to what they mean, as is clear from the fact that Dr. Conway was of the view that Dr. Maloney had not complied with them and Dr. Henderson had the opposite view. [ 100 ] I conclude, that Dr. Maloney did not comply with the Glenerin Guidelines , specifically with paragraph 1.1 because he did not disclose to Mrs. Reid “the nature of the proposed treatment or procedures and any material risks”. [ 101 ] Unlike the Glenerin Guidelines , the ACAC Consent Policy does appear to be binding on members of the chiropractic profession. On my

interpretation of this document, Dr. Maloney did not comply with all of the requirements of this policy either. For example the policy requires the chiropractor to inform the patient of any potential risk to the patient. Additionally the policy appears to require that the written consent document “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”. [ 102 ] The Consent Form did not disclose the nature of the treatment being proposed and I have found that Dr.

Maloney did not sufficiently explain what the treatment he proposed for Mrs. Reid entailed. Further, I have found that Dr. Maloney gave no information to Mrs. Reid about potential risks, relying instead only upon the very general wording of the Consent Form. As an aside, it is interesting that the form of consent attached to the policy does not, in itself, comply with the written version of this policy. The very general wording of the Consent Form cannot be said to inform a patient of any potential risk.

It simply provides some few examples and because it calls these risks “very slight” minimizes the possibility that even these can occur. There may, indeed, be some situations where a procedure involves only “very slight” risk. In other situations, the risk may be much greater. [ 103 ] However, the fact that Dr. Maloney did not comply with all of the requirements of the ACAC Consent Policy is not the end of

the inquiry. The test for whether the standard is met is that set out in the case law rather than that set out in either the Glenerin Guidelines or the ACAC Consent Policy. [ 104 ] I conclude that Dr. Maloney failed to obtain Mrs. Reid’s informed consent in two ways: he failed to advise her sufficiently of the treatment he proposed for what he had diagnosed and he failed to advise her of the risks of this treatment. [ 105 ] Dr. Maloney cannot recall any discussion with Mrs. Reid respecting the Consent Form itself. Nor can he recall if Mrs. Reid asked him any questions about it.

He relies on his standard practice to say that if Mrs. Reid had any questions he would have responded to them. There is no notation on his chart that he discussed the Consent Form with Mrs. Reid or that he discussed the risks of the proposed chiropractic treatment or any alternatives. Mrs. Reid, on the other hand, has a clear memory that Dr. Maloney neither explained that he was going to manipulate her back or that he was going to apply any pressure to it.

She specified that if he had told her he was going to apply pressure to her back she would have wanted to discuss this because of her two previous back surgeries. Dr. Maloney failed to take any steps to ensure that Mrs. Reid understood the treatment he was proposing or the risks of that treatment. [ 106 ] Dr. Maloney admitted, in discovery evidence read in at trial, that he had no memory of giving Mrs. Reid any information about the dangers or risks of the type of treatment he proposed. He said, however, that insofar as his standard procedure was concerned, he likely would not have advised her of the risks. Mrs.

Reid does not recall that he said anything to her about risks either. I find that Dr. Maloney did not discuss potential risks of the treatment with Mrs. Reid. [ 107 ] A chiropractor cannot assume that the patient understands the treatment suggested or the various risks just because she does not ask any questions. A chiropractor must discuss with the patient each material, unusual or special risk, be satisfied that the patient appeared to understand those risks and note that fact on the patient’s chart: Byciuk v.

Hollingsworth , 2004 ABQB 370 , para. 38 . [ 108 ] In Dickson at para. 74 , Yamauchi, J. summarized the law in respect to a medical practitioner’s duty of disclosure of risk: In

summary, 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. In other words, the medical practitioner must undertake a "risk assessment" and determine the risks a patient wants and needs to know to decide on their choice of therapy. Evidence re Risk of Harm : [ 109 ] The next question is whether there was a risk or risks that Dr. Maloney should have discussed with Mrs. Reid. [ 110 ] Both parties tendered expert evidence of the risks posed by chiropractic manipulation.

In order to understand this evidence, it is necessary firstly, to have a basic understanding of the anatomy of the disc and of the forces to which an intervertebral disc is subjected. This information was made available at trial from a number of sources.

What follows was obtained from the text book Clinical Biomechanics of the Spine, (2 nd ed) , White, A.A.; Panjabi, M.M., Lippincott Williams & Wilkins, ch 1, made exhibit 60 at trial. [ 111 ] An intervertebral disc is comprised of three distinct parts, two of which are important for the purposes of this case: the nucleus pulposus (“nucleus”) and the annulus fibrosus (“annulus”). The nucleus is a centrally located area in the disc and is composed of a very

loose and translucent network of fine fibrous strands. A healthy nucleus has been described as having the consistency of gel. The annulus is at the periphery of the nucleus and forms the outer boundary of the disc. It is composed of fibrous tissue in concentric laminated bands, arranged in a helicoid manner so that the fibres run in opposite directions in any two adjacent bands. [ 112 ] Intervertebral discs are subjected to a considerable variety of forces during normal body movement: compression, torsion, and tension being the main ones.

Compression forces are caused by the weight of the body itself and these forces are increased by body position (for example there is more compression pressure on an intervertebral disc when a person is sitting than there is when he is standing) and by any activity where dynamic loads are involved (jumping or trauma for example). Forces are also dependent upon time. [ 113 ] Tearing or renting of the annulus permits the material of the nucleus to extrude or protrude through the annulus. The result can be a protruded disc such as that suffered by Mrs. Reid. [ 114 ] Dr.

Michel Lavoie gave evidence for the Plaintiff on the issue of causation. He was qualified by consent as an expert in orthopaedic surgery able to give opinion evidence on the diagnosis, causes and treatment of low back pain and lumbar disc disease injury and treatment. [ 115 ] It was Dr. Lavoie’s opinion that Mrs. Reid’s previous two back surgeries had left her with a weakness in the lower back area and pre-disposed her to further injury at the same site. He said this was because when disc surgery is performed, the disc involved is already abnormal.

Further, the surgery itself leaves a rent in the annulus because it does not heal to be as strong as before surgery. Moreover, the pre-existing rent in the annulus sometimes must also be enlarged during surgery to permit the protruding

section of the disc to be removed. In Dr. Lavoie’s view all of these factors leave a disc that has been operated on pre-disposed to further injury. Further, he said, the effect of the surgery is to pre-dispose adjacent areas of the spine to problems because the bio-mechanics of the spine are altered by the surgery. It was also Dr. Lavoie’s opinion that the manipulations done by Dr. Maloney on Mrs. Reid’s back on March 9, at her first appointment, would create a rotational force across the lumbar spine and would increase strain across the lumbar disc and could cause injury.

He was of the further opinion that the four manipulations done by Dr. Maloney on Mrs. Reid’s second visit on March 10 could also apply pressure to the disc as could the SOT block procedure that Dr. Maloney administered on March 13. [ 116 ] Dr. Bruce Symons, a graduate of the Canadian Memorial Chiropractic College, a practicing chiropractor in Calgary, and with an M.Sc in bio-mechanics, was qualified by consent to give opinion evidence for the Defendants on the bio-mechanics of chiropractic manipulation of the lumbar spine.

He gave extensive evidence respecting the forces applied to a sacroiliac joint during a chiropractic manipulation. [ 117 ] Dr. Symons’ evidence was that the forces transmitted to the body by a sacroiliac joint manipulation of the type done by Dr. Maloney were likely to be minimal. Although, he indicated that these had not, in fact, been scientifically measured, for technical reasons, it was his opinion that they would likely measure in a range from 250 to 500 Newtons.

To illustrate, he gave as an example that a pat on the back would generate about 100 Newtons of force, while someone performing a movement such as that of a Tae Kwon Do Master, breaking a brick with his hand would generate about 3,000 Newtons of force. In his written report, Dr. Symons offered the opinion that a diversified SMT of the type performed by Dr. Maloney “does not load the L4-5 spinal segment to any appreciable extent, and causes minimal rotation on the lumbar spine since the force vector is directed into the pelvis”.

He said as well, in examination in chief, that he was not aware of any scientific evidence that supports the assumption that sacroiliac SMT causes disc herniations. It was his view that the forces exerted on a spine during a side posture lumbar manipulation would not be sufficient to cause damage to a disc. He offered as well, that it would be anatomically impossible for a side posture manipulation to produce enough rotational force to damage a disc. [ 118 ] In support of his opinion, Dr. Symons pointed to studies using cadaver spinal units consisting of a disc sandwiched between two lumbar vertebra.

This research found that the disc would fail physically when rotated to 14.5 degrees. Dr. Symons explained that this study referenced complete gross anatomic failure but admitted that the actual amount of rotation required to cause microscopic tearing is unknown. He said, however, that one could extrapolate to approximate the value, giving as an example the results of a test using a rabbit knee ligament pulled apart in a materials testing machine. He said in this test, the first signs of microscopic damage occur at 25-30% of the strain required for total failure.

He then said if one extrapolated these findings and applied them to a degenerated cadaver spine unit, this would mean that the disc would likely begin to fail at as little as 3.6 degrees of rotation. However, he said, studies have shown that an L4-5 spinal segment can rotate only to 3 degrees as an absolute anatomical limit before a bony fracture of the spinal processes would occur. He concluded therefore that “even assuming that Mrs.

Reid is one of the most flexible people on the planet and has 3 degrees of axial rotation in her L4-5 facet joint, it is very unlikely that her already degenerated L4-5 or L5-S1 spinal units could be damaged by Dr. Maloney’s lumbo-sacral SMT” .

[ 119 ] Dr. Symons suggested as well in his report that the side posture SMT manipulation done by Dr. Maloney on the second visit which specifically targeted the L4-5 vertebrae engenders “no more force than sacroiliac SMT”. [ 120 ] Dr. Symons also pointed to a study done by someone named Oliphant, first name not provided, in Safety of Spinal Manipulation in the Treatment of Lumbar Disc Herniation: A Systematic Review & Risk Assessment. J Manip Physiol Ther 2004; 27:197-210. According to Dr. Symons, Oliphant found that the risk of lumbar spine herniation associated with SMT was one in 3.7 million.

In oral evidence he added that the odds of being hit by lightning are about 1 in 1 million and so “this result would suggest that there’s no causal link at all. It’s entirely coincidence”. [ 121 ] I prefer the evidence of Dr. Lavoie to that of Dr. Symons on the issue of risk of harm. Dr. Symons’ opinion with respect to the forces exerted on a back during spinal manipulation is not based upon fact but upon conjecture. [ 122 ] The research papers he used to form his opinion, reach conclusions that are problematic or unsupportable, in my view. [ 123 ] In respect to the Oliphant article, relied upon by Dr.

Symons for his conclusion that statistically, one was more likely to be struck by lightning than to be injured in a chiropractic manipulation, it was suggested to him in cross examination that Oliphant had conducted his “research” by doing an Internet search to find literature. Dr. Symons agreed that this was so. It was suggested to him further that based upon the articles he found on the Internet, Oliphant came to the conclusion that in the last 40 years in the United States, there had been 6.5 billion chiropractic visits. Specifically, Dr. Symons was asked: “I suggest to you that Dr.

Oliphant did an Internet search, read some articles, came to the conclusion that there had been 6.5 billion chiropractic visits in the States over 40 years, and then as a result of that same Internet search, came to the conclusion that there had been only 31 proven cases of disc herniation as a result of chiropractic manipulation and divided 31 into 6 ½ billion and came to the conclusion that he did. Would that be right?” He responded; “I don't have the paper in front of me, so I can't verify or deny it.” Dr.

Symons was able to say almost nothing else about the methodology or statistical analysis used by Oliphant other than to say that he assumed because it was in a peer-reviewed journal that “it had been looked at fairly robustly”. He did not have the

article in front of him or available when he gave his evidence. Because of these problems, I place no reliance on the Oliphant

article insofar as it grounds Dr. Symons’ opinion. [ 124 ] Dr. Symons conclusion that disc failure using SMT would be impossible is also based upon research that is problematic. In a 1993

article by Cassidy, David J. et al, called Side Posture Manipulation for Lumbar Intervertebral Disk Herniation, relied upon by Dr. Symons, the author states that tortion (rotation) does not result in disc failure until rotation reaches 22.6 degrees for normal discs and 14.3 degrees for degenerated disc. However, the

article is not based upon any experiments or studies actually done by the author and is instead based upon what the author terms “a careful review of the work of Farfan” (an author who wrote an earlier study published in 1973).

Cassidy postulates that since rotation of that magnitude in the lumbar spine could only be accomplished by fracture of the posterior joints, and because the disc itself is “well suited to resist rotation ...it is hard to comprehend how the small amounts of rotation introduced during side posture manipulation could damage or irritate a healthy or herniated disk.” Cassidy’s only other ‘proof’ for his thesis, however, was “several uncontrolled descriptive studies” which have shown percentages of patients relieved by side posture manipulation and “one published controlled study” by someone named Nwuga which showed that “lumbar side posture rotational manipulation was superior to conventional physiotherapy.” The remainder of the

article deals with the technique to be used. [ 125 ] Dr. Symons agreed in cross examination that the Cassidy study considered only the force of torsion on the disc and no other forces were present and that a disc in the human body was subject to numerous other forces as well. He also agreed in cross examination that he did not know if any of the discs subjected to the torsion in the study had been operated on, or had annular tears already. Again, given the problems associated with the Cassidy article, I place no reliance upon it as a valid basis for Dr.

Symons’ opinions. [ 126 ] It is also noteworthy that another article, Clinical Biomechanics of Spinal Manipulation, Herzog, Churchill Livingstone, 2000, c. 5 , p 193, which

article was also made an exhibit, contradicts Dr. Symons’ very specific estimates of the amount of force generated in spinal manipulations. According to this article, the theoretic determinations of the forces used by chiropractors have been shown to be faulty and unrealistic and there are problems with all of the attempts at measuring scientifically the forces exerted. The

article also points out that there are many possible variations which can affect the amount of force administered to a patient: the problem being treated, manipulative technique, the chiropractor administering the treatment (force can easily differ by a factor of 2 to 4 between chiropractors), and speed. This

article also indicates that the force applied is much more variable than Dr. Symons indicated in his testimony. The author spoke of measurements in a side-lying position of a lumbar spine using the Thompson technique observed by the author as being as high as 1200 N with the “highest average thrust duration for treatments of the spine were 5000 Ns”. This

article also laments that there is a lack of experimental information respecting the movement of vertebrae during chiropractic treatment in conjunction with direct measurements of the treatment forces.

[127] Herzog et al also say this at p. 198 of the article: One of the most intriguing questions in biomechanics is the so-called “distribution problem”. The solution..is aimed at calculating(theoretically) or measuring (experimentally) the forces of internal structures in biologic systems. In the human body these internalstructures are represented primarily by the muscles, tendons, ligaments, bones, discs and articular cartilage.

Knowing at any given timewhat all of the internal forces in the human body are would be a great help in identifying, for example, the mechanisms underlyingmovement control and factors responsible for long-term degenerative diseases of the musculo-skeletal system such as osteoarthritis...Unfortunately the distribution problem has not been solved theoretically, even in relatively simple systems... For such a complex systemlike the human spine, any theoretic results on interna

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