Second Shield: Informed Consent — Legally
Second Shield: Informed Consent — Legally
“Malpractice attorneys state it is unacceptable for any patient to sign an “informed consent” in the reception room before the patient ever meets or sees the doctor.”
MY GOALS ARE TO ALLOW DCS AND CAs to embrace their chosen “philosophies,” practice the “art” (following the specific technique protocols) they choose, and follow the science (evidence-based). It is also imperative to be current with our newest evidence-based research and F4CP information while being cognizant of all the legal requirements in your state today as they apply to the standards of care (SOC), standards of practice (SOP), and pillars of practice (POP).
Today, MAPS addresses informed consent.
Every chiropractic college and university requires proper usage of “informed consent” (oral-written) by all student doctors and interns in their clinics. This SOC is taught to be carried over into your daily practice SOP (informed consent templates are available from colleges, national organizations, malpractice insurance carriers, etc.).
After decades of reviewing thousands of malpractice allegation cases and working with and speaking to hundreds of malpractice attorneys in the United States and Canada, the “consensus” on proper usage of informed consent is basically the same. Informed consent is a specific process — not just a piece of paper that is signed.
The basic SOC and SOP followed by DCs, DOs, MDs, DDSs, DPTs, hospitals, etc., are:
• The patient must be “informed” that they have a right to know.
• Lawyers will state the patient cannot sign an informed consent form in the waiting room before they ever see or meet the doctor, are examined, know a diagnosis, and are offered a treatment plan with alternative care options.
The DC (like any other physician) is to perform a patient consultation. The DC must then decide clinically to do a case history (review of systems or ROS), followed by a comprehensive examination (diagnostic tests, X-rays, labs, etc.). The DC then makes an accurate diagnosis (i.e., specific VSC levels per spinal region with ICD codes).
Next, the DC gives the patient a report of findings (ROT) and a treatment plan (shortterm and long-term goals), plus information about any alternative care available for the specific condition diagnosed and discussed. If the patient accepts this treatment plan, the DC gives the patient informed consent (oral-written) forms, reviews them, and documents that the patient's questions were answered before the patient signs it. The staff can take care of HIPAA and PHI forms, insurance forms, etc., to sign, date, and process.
These standard protocols of informed consent usage are basically the same SOC for all physicians, hospitals, etc. The multiple malpractice attorneys I have dealt with over the decades agree and state the previously mentioned standard protocols are what judges and jurors believe are normal and are used to seeing.
Malpractice attorneys state it is unacceptable for any patient to sign an “informed consent” in the reception room before the patient ever meets or sees the doctor. The doctor must follow standard protocols like doing a consult, then taking a comprehensive case history (ROS), followed by comprehensive exams (i.e., diagnostic tests, labs, X-rays, etc.) per patient complaints. Then, the DC makes a diagnosis (ICD codes required) and gives an ROT with specific information for treatment and information about any alternative care available for the diagnosis made.
Note: Judges and juries always question how any patient could ever sign an informed consent form before meeting or seeing the doctor. The patient expects a doctor-patient consultation with a case history and examination (i.e., tests, X-rays) with a diagnosis given (etc.) and treatment plan and options. This is normal and standaid.
My additional suggestion for a safer, more comprehensive malpractice advance protection shield (MAPS) is one can also do informed consent by departments (e.g., as it’s done in hospitals, walk-in clinics, etc.) prior to the initial exam. After the consultation, the DC orally informs the patient why the initial exams are going to be done. Then, the patient signs consent for the exams prior to the tests, X-rays, labs, etc.
After orally Informing and documenting with the patient what the exams and diagnostic tests showed, if X-rays, labs, etc., are necessary, the patient can agree to the X-rays (don’t forget to ask female patients about pregnancy possibilities), etc. After the comprehensive case history and exams (i.e., diagnostic tests, labs, X-rays), an accurate diagnosis is given, with ICD codes documented. Then, a treatment plan with alternative care is offered so the patient can make an informed choice and sign the informed consent for primary chiropractic care/rehab (MPC informed consent forms by department are available at 517-784-9123 or drmurkowski@ yahoo.com).
Remember, no patient care is provided without standard protocols, proper workups, comprehensive care history, exams, tests (i.e., X-rays), diagnosis, ROT, and treatment plan with alternative care available offered and documented. Then, the standard informed consent (oral-written) per patient is issued, signed, dated, and documented. Note that the OIG (gold standard) requires a treatment plan with short-term and long-term goals for measured outcome assessments.
Once informed consents (oral-written) are executed properly, they are good until the patient is released from the original care diagnosis-plan and reaches MMI or until a new incident or a new diagnosis is made and documented.
This is taught (SOC) and practiced (SOP) legally and by state statute, by physicians, and by hospitals.
Knowledge is power. Power is success.
The OIG has issued 13 contraindications to chiropractic care that are to be included and reviewed in a Medicare patient informed consent
1. Articular hypermobility and circumstances where the stability of the joint is uncertain.
2. S evere demineralization of bone.
3. Benign bone tumors (spine).
4. Bleeding disorders and anticoagulant therapy.
5. Radiculopathy with progressive neurological signs.
6. Acute arthropathies characterized by acute inflammation and ligamentous laxity with anatomic subluxation or dislocation including acute rheumatoid arthritis and ankylosing spondylitis.
7. Acute fractures and dislocations or healed fractures and dislocations with signs of instability.
8. An unstable os odontoideurn.
9. Malignancies that involve the vertebral column.
10. Infection of bones or joints of the vertebral column.
11. Signs and symptoms of myelopathy or cauda aquina syndrome.
12. For cervical spinal manipulations, vertebrobasilar insufficiency.
13. A significant major artery aneurysm nearthe proposed manipulation.
Again, these are to be included in your Medicare informed consent along with your written Medicare patient treatment plan, including short-term and long-term goals for measured outcome assessment. Also, do not forget to use your ABNs appropriately, along with the “no surprise estimate act” forms.
Remember, for the record, informed consent (oral-written) is a specific process per individual patient, not just a piece of paper a patient signs, especially before the patient ever meets the DC.
I hope this MAPS gives some clarity and peace of mind to all DCs and CAs so that we can all concentrate on our primary goals of quality spinal care and rehab with specific adjustments for quality VSC care/rehab. See you soon at an MPC CE Seminar.
*These are opinions and suggestions. This is not to be considered as legal advice.
Dr. KSJ Murkowski, D.C., is an internationally recognized chiropractic leader, educator, and motivational speaker. He serves as President of Master Practice Counselors and has earned numerous honors, including Michigan Doctor of the Year (twice) and multiple meritorious awards. A former state president and board chairman, he has testified before the U.S. Senate, contributed to ICD-10 coding for the WHO, and serves as an expert witness across North America. He is also a proud father of three accomplished chiropractic doctors.
