http://www.mywhatever.com/cifwriter/library/eperc/fastfact/ff63.html
Title: Fast Fact and Concept #63: The legal liability of undertreatment of pain
Author(s): Warm, Eric; Weissman, David E
It is well recognized that physician’s fear of fear of regulatory scrutiny (DEA, state medical boards), is a major contributor to the problem of under treatment of pain. A recent landmark lawsuit should be a wake-up call for all physicians that this type of practice poses its own legal liability. An 85-year-old California man with metastatic lung carcinoma spent the final week of his life in severe pain. Three years after his death his children sued his doctor alleging that the physician had failed to prescribe drugs powerful enough to relieve their father’s suffering. This was one of the first U.S. cases in which a doctor has gone on trial for allegedly under-treating a patient’s pain. By a 9 to 3 vote the jury decided that the physician’s lack of attention to pain constituted elder abuse, awarding the family $1.5 million (the amount was reduced to $250,000). To win, lawyers convinced the jury that under-treatment of pain was “reckless negligence”. Until recently, lawyers would have considered such a suit un-winnable. Given politically savvy aging baby boomers, as well as the preponderance of sound scientific evidence for the proper assessment and treatment of pain, we can probably expect more such verdicts. Here are some tips for how physicians can better protect themselves from charges of under-treatment of pain?
- Review your own practice–are you currently meeting JCAHO standards? Find out at: http://www.jcaho.org and AHQR (a.k.a. AHCPR) http://www.ahrq.gov/clinic/cpgarchv.htm pain guidelines?
- Improve your knowledge and skills in pain assessment and treatment. (Some states, such as California, now require mandatory pain CME).
- Learn about and utilize your local consultation resources for pain management.
- Improve your knowledge and skills in assessing substance abuse disorders; learn about and utilize your local resources for substance abuse referrals and treatment.
- Improve your understanding of the drug regulatory system and how it functions- learn about the common triggers for regulatory review . Go to: http://www.medsch.wisc.edu/painpolicy/ for information about federal and state regulatory laws and regulations.
- Become active in your hospital pain improvement efforts-check with your hospital QI department and their efforts to meet the new JCAHO pain guidelines.
- Become active with your state Cancer Pain Initiative; go to http://www.aacpi.org/ to find information about your state activities.
Ideally physicians should not use the fear of lawsuits to help guide medical care, but evidence shows that they do. In a way, this attention on improved pain management may become a silver lining in the black cloud of our litigious society.
References
Stieg RL, et al: Roadblocks to effective pain treatment. Med Clin N Amer, 1999;83(3): 809-821.
Okie, S. Doctor’s Duty to Ease Pain At Issue in Calif. Lawsuit. Washington Post.May 7, 2001; Page A03
Crane M, Treating pain: damned if you don’t? Med Economics, Nov 19, 2001, pp 67-69.
Weissman DE, Doctors, Opioids and the law: The Effect of Drug Regulations on Cancer Pain Management. Semin Oncol 20(Suppl A): 53-58, 1993.
Gilson AM, Joranson DE. Controlled substances and pain management: Changes in knowledge and attitudes of state medical regulators. Journal of Pain and Symptom Management. 2001;21(3):227-237.
Joranson DE, Maurer MA, Gilson AM, Ryan KM, Nischik JA. Annual review of state pain policies, 2000. Pain & Policy Studies Group, University of Wisconsin Comprehensive Cancer Center. Madison, Wisconsin; February 2001.
Jacox A, Carr DB, Payne R, et al. Management of Cancer Pain. Clinical Practice Guideline No. 9 AHCPR Publication No. 94-0592, Rockville, MD. Agency for Health Care Policy and Research, U.S. Department of Health and Human Services, Public Health Service, 1994.
Acute Pain Management Guideline Panel. Acute pain management: Operative or Medical Procedures and Trauma Clinical Practice Guideline. AHCPR Publication No. 92-0032. Rockville, MD. Agency for Health Care Policy and Research, US Department of Health and Human Services, Public Health Service, 1992.
Copyright and Referencing Information: Users are free to download and distribute Fast Facts for educational purposes only. Citation for referencing. Fast Facts and Concepts #63 The legal liability of undertreatment of pain. Warm E and Weissman DE. March, 2002. End-of-Life Physician Education Resource Center www.eperc.mcw.edu.
Fast Facts and Concepts was originally developed as an end-of-life teaching tool by Eric Warm, MD, U. Cincinnati, Department of Medicine. See: Warm, E. Improving EOL care–internal medicine curriculum project. J Pall Med 1999; 2: 339-340.
Disclaimer: Fast Facts provide educational information, this information is not medical advice. Health care providers should exercise their own independent clinical judgment. Some Fast Fact information cites the use of a product in dosage, for an indication, or in a manner other than that recommended in the product labeling. Accordingly, the official prescribing information should be consulted before any such product is used.
Creation Date: 3/2002
Format: Handouts
Purpose: Instructional Aid, Self-Study Guide, Teaching
Audience(s)
| Training: Fellows, 1st/2nd Year Medical Students, 3rd/4th Year Medical Students, PGY1 (Interns), PGY2-6, Physicians in Practice |
| Specialty: Anesthesiology, Emergency Medicine, Family Medicine, General Internal Medicine, Geriatrics, Hematology/Oncology, Neurology, OB/GYN, Ophthalmology, Pulmonary/Critical Care, Pediatrics, Psychiatry, Surgery |
| Non-Physician: Nurses |
ACGME Competencies: Medical Knowledge
Keyword(s): Addiction, Chronic non-malignant pain, Controlled substance regulations, Pain, Pain assessment, Pain treatment
Filed under: General Problems
For quite sometime I felt bad for how docs have been targeted like we have.But the longer this has gone on I’m seeing that doctors lieing more to their patients. Also if they are still prescribing even a little they are lieing along with seeming to enjoy the power they seem to feel over pain patients. I can’t feel bad for a doctor that behaves this way. I mean it would be different if the doctors were honest with there patients and said look I know u need these meds but due to laws and limits I’m scared so I can’t write or am reducing everyone. Then it would make me feel like fighting beside them. But with the lies and power trips some seem to be on it devistates the doc patients relationship. How can u ever really trust ur doc if they are lieing and on a power trip? As pain patients today we know what the laws are so we know when we are being lied too. Also the power trip..If a doctor had had a patient on pain meds for years before CDC guidelines and for no other reason forced taper or cut them off wouldn’t it look worse on that doc to have to explain why all of a sudden the patient that’s not cureable no longer needs that pain med? Also are these doctors really documenting in patients charts that they are forcing tapers or cutting without consent? Or that they cut or stopped meds out of fear of government when that’s what some are telling patients. I have heard some horrible stories of patients finding that doc put on their charts that they were drug seeking or addicts after years of stable doses without incident.
I gotta confess that I’ve felt rage at physicians for quite a while now,* for kowtowing to the anti-opioid hysteria & abandoning their patients, for not getting together to stand up & fight the propaganda & lies that have led us to this Age of Medical Sadism. OTOH, I read regularly about doctors that have lost their licenses or even gone to jail when one of the patients OD’d (possibly on meds his doc didn’t even prescribe). So I do have to feel some sympathy for them…squeezed between two impossible extremes; threats of ruination by the DEA if they do treat pain, threats of lawsuits if they don’t. No wonder many of them are bailing out.
BUT. If they & the AMA had stood up, exposed, & fought this idiotic, hysterical insanity from the very beginning, it’s just possible that they wouldn’t be in this position, & millions of patients wouldn’t be living –& dying– in agony. So they helped to make their own bed, and certainly put millions of us into ours, who formerly were able to work & function & have some quality of life.
*about as much as I felt in ’97 when my mother was dying of leukemia, in unspeakable agony, & her doc & the hospice people refused her ANY relief, because some recreational drug addict morons were abusing oxycontin. What in the hell that had to do with forcing my mother to undergo weeks of obscene, monstrous torture, no one was ever able to explain to me. Frankly, I hope that every single person who’s behind this deliberate torture of the living and the dying experiences for themselves each single instant of agony they’ve inflicted upon others. In this life & any next one.
THIS is Good! It’s start and we should take it and RUN with it! I wonder what the date was on this case? Still a Win for Americans suffering in pain.