December 3, 2012

On November 30, 2012, the Supreme Court of Texas (“Supreme Court”) stated in its written opinion that health care must be based on a patient’s informed consent and that a health care provider may be liable for failing to disclose to a patient the risks inherent in proposed treatment. The issue before the Supreme Court was whether the possibility that a patient, due to an undetectable physical condition, will suffer a severe, negative reaction to a procedure is a risk that is inherent in the procedure, which the Supreme Court held that it is.

The Underlying Facts

The patient sought treatment for neck pain from the chiropractor, who obtained a history from the patient, x-rayed his cervical spine, and manipulated the patient’s spine on two occasions. Because the treatments did not provide relief, the chiropractor performed a more forceful manipulation on the third visit. The patient immediately began experiencing blurred vision, nausea, and dizziness. The patient was transported by ambulance to the hospital and was diagnosed as having suffered a stroke resulting from a vertebral artery dissection (a tear in one of the major cervicocerebral arteries allowing blood to enter the wall of the artery and split its layers).

The chiropractor was aware of the risk of stroke from chiropractic neck manipulation, having read an article on the subject the morning of the patient’s injury and having had a previous patient who suffered a vertebral artery dissection. However, the chiropractor allegedly never disclosed to his patient the risks associated with the neck manipulation.

The patient filed a chiropractic malpractice lawsuit against the chiropractor alleging the chiropractic was negligent in his treatment of the  patient and that the chiropractor failed to disclose the risks associated with the neck manipulations. The medical malpractice jury found that the  chiropractor’s negligence was not the proximate cause of the patient’s injuries but did find that the chiropractor failed to addvise his patient regarding the risks and hazards inherent in the chiropractic treatment that could have influenced a reasonable person in making a decision to give or withhold consent to such treatment, that a reasonable person would have refused such treatment if those risks and hazards had been disclosed, and that the patient was injured by the occurrence of the risk or hazard of which he was not informed, leading the trial judge to enter a judgment awarding the patient $742,701.90, which included the damages awarded by the jury, less offsets, plus prejudgment interest.

The Supreme Court noted that Section 74.101 of the Medical Liability Act (“MLA”) would not apply because even though a chiropractor is a “health care provider” under the MLA, a chiropractor is not a physician and “medical care” can be provided only by physicians. Nonetheless, the Supreme Court held that the common law imposes on “[p]hysicians and surgeons [the] duty to make a reasonable disclosure to a patient of risks that are incident to medical diagnosis and treatment” and that Texas holds chiropractors to a standard of ordinary care  (that of a reasonable chiropractor) including the duty to reasonably disclose risks of treatment.

The Supreme Court held that a reasonable health care provider must disclose the risks that would influence a reasonable patient in deciding whether to undergo treatment but not those that would be unduly disturbing to an unreasonable patient. That disclosure requires disclosure of risks “inherent” in treatment. An inherent risk is one that “exists in and is inseparable from the procedure itself.”

The Supreme Court differentiated between inherent risk and extraneous risks: inherent risks of treatment are those which are directly related to the treatment and occur without negligence and include the “chance of injury” even if treatment is proper and properly administered (inherent risks include side effects and reactions, whether likely or only possible, that are directly related to the treatment provided); extraneous risks are those associated with the practice of health care, not in the care itself (for example, medical malpractice) – the inherent risks of surgery do not include the possibility that it may be based on an erroneous diagnosis or prognosis or that it is negligently performed.

In the case before it, the Supreme Court noted that the patient’s injury would not have occurred but for the chiropractor’s treatment, that chiropractic neck manipulation can result in vertebral artery dissection and does so in a significant number of cases, and that dissection and stroke are known risks of chiropractic treatment that should be disclosed. Furthermore, the patient’s injury occurred during treatment, as a direct result of treatment, which was the same kind of injury that may occur in other patients undergoing the same kind of treatment. The risk that a patient will not respond well to treatment is clearly one that inheres in the treatment. The jury in the case before it found that the possibility of vertebral artery dissection and stroke is precisely the kind of information a reasonable patient would be expected to want to know before deciding whether to risk such severe consequences in order to alleviate neck pain.

Source  Aaron Felton v. Brock Lovett, D.C., No. 11-0252.

If a chiropractor in Texas or in your U.S. state caused you to suffer serious injuries, you should promptly seek the advice of a Texas medical malpractice attorney or a medical malpractice attorney in your state who may be willing to investigate your chiropractor malpractice claim and file a chiropractic claim on your behalf, if appropriate.

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