Dickson et al. v. Pinder et al., 2010 ABQB 269

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 11, 2009
• Citations: 2010 ABQB 269;(2010), 489 A.R. 54 (QB)

Dickson v. Pinder (2010), 489 A.R. 54 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.130

Patricia Dickson and Her Majesty The Queen in Right of Alberta (plaintiffs) v. Ross J. Pinder, Jaime Cervantes, Capital Health Authority operating a Facility known as the Fort Saskatchewan Health Centre, Jane Doe #1, Jane Doe #2, Jane Doe #3 (defendants)

(0403-02817; 2010 ABQB 269)

Indexed As: Dickson et al. v. Pinder et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Yamauchi, J.

April 19, 2010.

Summary:

The now 50 year old plaintiff brought a negligence action for damages against the defendant chiropractor. In 2002, the chiropractor manipulated her neck using spinal manipulative therapy (SMT), which the plaintiff claimed caused the stroke she suffered several hours later. She alleged a lack of informed consent and negligent performance of the SMT.

The Alberta Court of Queen's Bench dismissed the action. The chiropractor's failure to ensure that the plaintiff understood the nature and consequences of a stroke, and the failure to advise of reasonable alternative treatments, precluded the plaintiff from giving her informed consent to the SMT. However, the lack of informed consent was not causative of the stroke, as the court was satisfied that had the plaintiff been properly informed, she would still have consented to the SMT. The plaintiff failed to establish negligence and, in any event, failed to establish that the stroke was caused by the SMT.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The plaintiff suffered a stroke shortly after the defendant chiropractor manipulated her neck using spinal manipulative therapy (SMT) - In the waiting room, the plaintiff signed a standard consent form which disclosed the remote risk of a stroke from SMT - In the pre-treatment interview, the chiropractor told the plaintiff of the remote risk of stroke, but did not question her as to whether she knew what a stroke was or its consequences - The plaintiff did not ask questions - The chiropractor did not advise the plaintiff of reasonable alternative treatments such as massage therapy - The plaintiff alleged a lack of informed consent and argued that had she known about strokes and alternative treatments, she would not have consented to the SMT - The Alberta Court of Queen's Bench held that the chiropractor properly advised the plaintiff of the risk of a stroke, which was remote, but material - However, since the plaintiff did not understand the full implication of a stroke, the consent form, by itself, did not constitute informed consent - The chiropractor's failure to ensure that the plaintiff understood the risk of a stroke and its consequences deprived the plaintiff of the necessary information to give informed consent - Further, the chiropractor breached his disclosure duty by not disclosing the reasonable alternative treatments available - However, the lack of informed consent was not causative of the plaintiff's injury where, had she been properly informed, she would have still consented to the SMT - See paragraphs 20 to 123.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The Alberta Court of Queen's Bench stated that "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." - See paragraph 68.

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - The Alberta Court of Queen's Bench stated that "a medical practitioner must disclose a risk, where the patient would not know 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" - See paragraph 74.

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - The Alberta Court of Queen's Bench stated that "the case law is clear that a medical professional disclose reasonable alternatives to any therapy they propose. This 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 paragraph 81.

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - The Alberta Court of Queen's Bench stated that "when a medical practitioner requires a patient to review and sign an informed consent form before the medical practitioner undertakes any diagnosis and treatment of the patient, a court will consider that factor when it attempts to determine whether the medical practitioner has complied with their duty of disclosure ... Medical practitioners must be cautious when they only rely on a signed informed consent form. The medical practitioner must take reasonable steps to ensure that the patient understands and appreciates the nature of the procedure to which the patient is consenting and the form that the patient has signed. Otherwise, the court could find that the consent was one that was not informed ... a signed form itself is not sufficient for the chiropractor to meet their standard of care of this regard. ...  the Informed Consent Form is only useful and relevant ... if [the patient] knew the meaning and implications of the statements contained in that form. If [the patient] did not know anything about a stroke and its potential consequences, then her signature on the Informed Consent Form in relation to stroke is meaningless and her consent is not informed." - See paragraphs 86 to 87.

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - In 2002, the now 50 year old plaintiff suffered a stroke hours after the defendant chiropractor manipulated her neck using spinal manipulative therapy (SMT) - The plaintiff sued for damages, submitting, inter alia, that the SMT was performed negligently and caused her stroke - The plaintiff's theory was that the manipulation dissected a vertebral artery, which resulted in a blood clot that caused the stroke - There was statistical evidence that made the link between manipulation and vertebral artery damage "improbable", but not impossible - The Alberta Court of Queen's Bench dismissed the action for want of proof of causation - The more probable cause of the stroke was the plaintiff's multiple risk factors, which included smoking, mild hypertension, borderline diabetes, obesity (weighed 270-300 pounds), her past use of contraceptives and estrogen and high cholesterol - Causation required proof of more than a "possibility" that the SMT caused the stroke - The temporal connection between the SMT and the stroke was significant, but not determinative - The court noted that all experts agreed that the plaintiff had "significant biological and behavioural factors that could have contributed to her risk of suffering a stroke that was unrelated to the SMT" - The plaintiff failed to prove that "but for" the manipulation, she would not have suffered a stroke - The multiple risk factors were more likely than not to have caused the stroke - See paragraphs 165 to 310.

Professional Occupations - Topic 4421

Chiropractors - Negligence - General - The Alberta Court of Queen's Bench stated that "since courts have held that chiropractors are treated like other 'medical practitioners', the principles that relate to non-chiropractic medical professionals apply with equal force to chiropractors" - See paragraph 15.

Professional Occupations - Topic 4423

Chiropractors - Negligence - What constitutes - In 2002, the now 50 year old plaintiff suffered a stroke shortly after the defendant chiropractor manipulated her neck using spinal manipulative therapy (SMT) - The plaintiff sued for damages, submitting that the SMT was performed negligently and caused her stroke - The plaintiff alleged that the chiropractor "snapped" her neck, resulting in a loud crack and subsequent soreness - The plaintiff claimed that the doctor failed to obtain sufficient information from her prior to making a diagnosis and that the SMT was negligently conducted - The Alberta Court of Queen's Bench held that the plaintiff failed to establish negligence - The chiropractor met the standard of care required of a normal, prudent or reasonable chiropractor under like circumstances in examining the plaintiff, diagnosing her problem and in choosing and performing the SMT - The court accepted that the chiropractor followed his usual practice and carried out the SMT consistent with his 27 years of training and expertise - Both the plaintiff and chiropractor called expert evidence and neither expert witness identified issues with the chiropractor's technique - See paragraphs 126 to 164.

Professional Occupations - Topic 4428

Chiropractors - Negligence - Informed consent - [See first Medicine - Topic 3045 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - [See Medicine - Topic 4241.2 ].

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Authors and Works Noticed:

Henderson, Donald, Chapman-Smith, David, Miro, Silvano, and Vernon, Howard, Clinical Guidelines for Chiropractic Practice in Canada (1994), 38 J. Can. Chiropractic Ass'n. (Supp.), p. 3 [para. 60].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), p. 212 [paras. 12, 13].

Counsel:

David deVere and Mark Smith (Weir Bowen LLP), for the plaintiff;

Karin Buss and Richard C. Secord (Ackroyd LLP), for Ross J. Pinder.

This action was heard between November 16 and December 11, 2009, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 19, 2010.