Chiropractors in the United States should be familiar with their state's requirements concerning informed consent. Informed consent requires the practitioner to disclose the treatment being offered, the alternatives to that treatment and the risks involved with both, primarily the material risks.
Posted in Articles on Monday, October 3, 2022
In most states, informed consent must be in a written format and the patient must sign and acknowledge that the form was read and understood. Additionally, California and a small number of other jurisdictions, have added a verbal consent requirement. The California rule states: “A licensed doctor of chiropractic shall verbally and in writing, inform each patient of the material risks of proposed care.” However, no state so far has defined what satisfies the verbal requirement.
Attorneys who regularly handle board matters are painfully familiar with board experts criticizing chiropractors for “unprofessional conduct” and “gross negligence” when they don’t follow their state’s written rules and regulations. Since “verbally” is a vague and ambiguous term, and no guidance of what the term means has been given, boards seem to be adding and enforcing this requirement. It’s been left to the triers of fact and the board’s experts to try to postulate what it means and determine whether the practitioner did not follow their undefined interpretation or potentially face licensure discipline.
What should chiropractors do in the states which have a “verbal” component required in their informed consent rule? It’s difficult to say what will satisfy the verbal requirement, which could run the gamut from superficial questioning (“Have you read the form?” “Do you have any questions?”) to very detailed questioning (“Let’s discuss each of the risks listed in the informed consent for the treatment I will be offering.”)
Until clarity is provided, the best approach might be to ask the patient if the form has been reviewed and whether there are any terms therein which need clarification or further discussion. Obtain the patient’s signature after adding language similar to the following: “I have read the above informed consent and discussed it with the doctor. All questions have been answered to my satisfaction and any terms I found confusing have been clarified.” The doctor and patient should date and sign the form.
In addition, regularly check your state’s informed consent rules to determine if any additional guidance is offered to help the chiropractor or check with an attorney to see if any additional language will help you comply with your state’s current requirements.
About the Author
Edward (Ed) Stark is a partner at Cron, Israels & Stark in Santa Monica, California and is a leading attorney covering torts, medical malpractice, business litigation and professional licensure defense. For more on Ed, visit his website.