Canadian Chiropractic Negligence Lawsuits: Proving Standard of Care

• Canadian chiropractic negligence lawsuits primarily involve claims of direct negligence or failure to obtain informed consent.
• Proving negligence requires expert testimony from another chiropractor to establish a breach of the standard of care.
• Causation in negligence claims may necessitate expert evidence from various medical specialists, such as neurologists or oncologists.
• Informed consent requires chiropractors to disclose all material information, including risks like stroke from cervical manipulation, benefits, alternatives, and consequences of no treatment.
• Causation for informed consent claims uses a modified objective test, requiring proof that both the patient and a reasonable person would have refused treatment if properly informed.

Lawyers advising on or litigating chiropractic negligence claims in Canada must be aware of these unique requirements to effectively represent their clients.

While less frequent than other medical malpractice cases, claims alleging chiropractic negligence are a well-established area of law in Canada, offering legal recourse for individuals injured during chiropractic procedures. These actions typically fall into two main categories: direct negligence in treatment and failure to secure proper informed consent from the patient. Ryan Marinacci, an associate at Bogoroch & Associates LLP, highlights that individuals who experience adverse outcomes from chiropractic care should consider consulting legal counsel to explore their options.

Despite their relative rarity, the legal framework for Canadian chiropractic negligence lawsuits has been in place for many years. The unique aspects of these cases often necessitate specialized legal expertise, particularly concerning the evidentiary requirements. Lawyers advising on or litigating chiropractic negligence claims in Canada must be aware of these unique requirements to effectively represent their clients.

Claims of direct negligence against chiropractors often arise from specific actions or inactions during patient care. Examples include the application of excessive force during spinal manipulation, performing a manipulation when it is medically contraindicated, or failing to refer a patient to a medical doctor, hospital, or for diagnostic imaging when symptoms warrant such a referral. Additionally, a chiropractor's failure to recognize and appropriately act upon certain 'red flag' symptoms can form the basis of a negligence claim.

To succeed in a negligence claim, a plaintiff must demonstrate that the chiropractor's conduct fell below the accepted standard of care, meaning they acted in a manner that no other reasonably prudent chiropractor would have under similar circumstances. This crucial element invariably requires expert evidence, typically from another practicing chiropractor, to establish the appropriate standard and prove its breach. Furthermore, plaintiffs must also prove causation, meaning the chiropractor's negligent act directly led to the patient's injury. Depending on the nature of the alleged harm, expert testimony from other medical specialists, such as a neurosurgeon, neurologist, or oncologist, may be necessary to establish this causal link, for instance, if a manipulation is alleged to have caused a stroke or if a delayed referral impacted cancer progression.

Beyond direct negligence, a significant portion of chiropractic malpractice claims in Canada revolve around the issue of informed consent. Patients undergoing any medical treatment, including chiropractic procedures, are legally entitled to receive all relevant material information before deciding to proceed. This encompasses a comprehensive disclosure of known risks, anticipated benefits, available alternative treatments, and the potential consequences of opting out of the proposed treatment entirely.

For example, the known association between cervical spine manipulations and the risk of stroke is a critical piece of information that must be conveyed to patients. A failure to disclose such a risk before treatment could constitute a failure to obtain proper informed consent. The determination of what constitutes 'material information' in these cases is typically established through expert evidence provided by another chiropractor. Causation in informed consent cases operates under a modified objective test: the patient must prove not only that they personally would have declined the treatment if adequately informed, but also that a reasonable patient in their specific circumstances would likewise have refused the treatment. It is important to note that even if a patient signs a consent form, it does not automatically preclude them from pursuing a lawsuit if they suffer an adverse outcome, underscoring the importance of thorough disclosure.

Chiropractic negligence cases, much like other medical malpractice matters, heavily rely on expert evidence and relevant professional literature. These claims present unique challenges, particularly concerning the establishment of causation, where a recognized 'divide on the issue' often exists within the chiropractic field. This complexity highlights why retaining counsel with specific experience in the nuances of chiropractic negligence cases is paramount for navigating these intricate legal proceedings effectively.

Lawyers advising on or litigating chiropractic negligence claims in Canada must be aware of the unique evidentiary requirements, particularly the reliance on expert testimony to establish standard of care and causation, and the specific application of the modified objective test for informed consent. Compliance officers should review protocols for chiropractors regarding patient referrals and comprehensive disclosure of risks to mitigate potential liability.

Source: Original reporting via Canadian Lawyer Magazine