FAST FACT AND CONCEPT #63: The Legal Liability of Under-Treatment of Pain

2nd Edition

Authors: Eric J. Warm, MD and David E. Weissman, MD

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 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 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 physicians 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 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: 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 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

1. Stieg RL, et al. Roadblocks to effective pain treatment. Med Clin N Amer, 1999;83(3): 809-821.
2. Okie, S. Doctor's Duty to Ease Pain At Issue in Calif. Lawsuit, Washington Post: Monday, May 7, 2001; Page A03
3. Crane M, Treating pain: damned if you don’t? Med Economics, Nov 19, 2001, pp 67-69.
4. Weissman DE. Doctors, Opioids and the law: The Effect of Drug Regulations on Cancer Pain Management. Semin Oncol 20(Suppl A): 53-58, 1993.
5. 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.
6. 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.

Fast Facts were edited by David Weissman MD, Palliative Care Center, Medical College of Wisconsin until January 2007.  For comments/questions write to the current editor, Drew Rosielle MD: drosiell@mcw.edu. The complete set of Fast Facts is available at EPERC: www.eperc.mcw.edu

Copyright/Referencing Information: Users are free to download and distribute Fast Facts for educational purposes only. Citation for referencing: Warm E and Weissman DE. Fast Facts and Concepts #63 . The legal liability of under treatment of pain, 2 nd Edition. July 2006. End-of-Life/Palliative Education Resource Center www.eperc.mcw.edu.

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

Purpose: Instructional Aid, Self-Study Guide, Teaching

Audience(s)

ACGME Competencies: Medical Knowledge

Keyword(s): Pain>evaluation; Ethics, law, policy, health systems