the legal and ethical issues in pain management november 20 th, 2003 st. francis hospital and...
TRANSCRIPT
The Legal and Ethical Issues in Pain Management
November 20th, 2003St. Francis Hospital and Medical Center
Grand Rounds
L.Jean Dunegan, M.D., J.D., FCLM
ObjectivesReview reasons for mandating pain
managementDiscuss clinicians’ dilemmas when
treating ATC painDiscuss liability issues for both treating
and failing to treat painReview ways of protecting both the
patient and the practitioner from liability
Reasons for Mandated Pain Management
Cost of unmanaged pain is exorbitantQuality of sufferers life is abysmalThe “old way” of treating pain has not
been effectiveUnless there are negative
consequences for not adequately treating pain, the “old way” will prevail
The “New Way” of Treating Pain
Use non-opioids first line for mild to moderate pain
Opioids are not the first line treatment for mild to moderate pain control
When opioids are necessary, consider the importance of synergism for analgesia that NSAIDs can give
The multi-modal approach gives the best outcomes
Guidelines for Adequate Pain Treatment*
Have a plan for treatment “Success” as regards:FunctionalityNumerical Rating Scale
Follow the patient in a timely fashionUse pain treatment agreement for patients
with vulnerability to opioids *Dunegan, LJ, The Handbook of Pain Management, 2002
edition
Classification of PainDuration:
Acute-abrupt onset and expectation of absence after a short time
Chronic-with physical cause but persistent after normal healing timeframe
ATC (around-the-clock) pain
Around-The-Clock (ATC) PainOccurs at certain times during the day Is rated as moderate to severe (by the
patient) Interferes with the quality of the
patient’s lifeCan not be predicted by patients activity
(in contrast with pain that can be treated prophylactically)
The Measurement of PainAssessment using the mnemonic
WILDA strategy*Numerical Rating Scale (NRS)
Subjective, but when used consistently over time, as objective as possible
Requires patient education Gates,AG, et al, Oncology Nursing Secrets. Henley & Beltus,
Inc., publishers, 1997. p287
Between a Rock and a Hard Place
Clinicians often confused by the absence of consensus between medicine and law as to oversight
Guidelines are so vague as to give little direction
A need to have a balanced approach but difficulty finding it
Oxycodone Deaths Tied to Drug Abusers, Not Patients*
A survey of medical examiners/coroners concerning deaths that were said to be related to oxycodone.
Included 1,164 deaths in which oxycodone was involved.
The prevalent pattern that emerged was polypharmacy in drug abusers.
*Clinical Psychiatry News, July, 2003, page 36
Oversight of Physician Opioid Prescribing for Pain
Seeking the balanceThe role of state medical boards*
Higher threshold for patient harm when undertreated
Clinicians often get mixed messages
*Journal of Law,Medicine&Ethics,31,(2003):21-40
Oversight of Physician Opioid Prescribing for Pain
Seeking the balanceCriminal prosecution of clinicians*
A four state survey concluded by encouraging better guidelines and education for both the medical and legal professions in pain management
*Journal of Law,Medicine&Ethics,31(2003):75-100
Sources of Scrutiny With the Potential for Liability
Over-sight in two areas:Medical boardsProsecutors
Where the onus to protect the public resides
Medical malpractice accusations
LiabilitiesFor prescribing pain medication
Florida v Graves(criminal convictions)Finding niches
For not prescribing appropriatelyBergman v Chin(elder abuse/civil neglience)Oregon v Bilder(licensure sanctions)Michigan v wound care specialist(elder
abuse/criminal negligence)
Liabilities
For prescribing pain medication*Florida v Graves**Finding nichesGuidelines*Brott, LF, Everitt, KB, “Pain Control & Risk Management”, Med
Risk Management Advisor: Vol10; No3; 2002, pp 1-3.
**Albert, T, “Florida Physician Guilty of Manslaughter in Oxycontin case”, Am Med News, March 11, 2002.
Florida v GravesJuly, 2001, indicted on 2 counts
manslaughter and a of racketeeringJuly, 2002, convicted on all four
countsClinician now serving a prison
sentencePain specialist did no proceduresCash basis only practice with take
salary of $500,000/yr.
LiabilitiesFor not prescribing appropriately*
Bergman v Chin**Michigan v wound care
specialist*** *Tucker, KL, “A New Risk Emerges: Provider Accountability
for Inadequate Treatment of Pain”, Annals of Long-Term Care, Vol 4, No 4, April 2001, pp 52-56.
**Bergman v. Eden Medical Center, No. H205732-1 (Sup.Ct.Alameda Co., Calif.
***Albert, T, “Doctor Indicted under Michigan adult abuse law . . .”, Am Med News, Aug 27, 2001.
Bergman v Chin Landmark case-85 year old
California man with lung cancer died.
First case to frame the COA as elder abuse for not treating pain
Under Tort Reform in Calif. only the victim can collect damages for pain and suffering.
Bergman v Chin
The case introduces a new legal theory: “Civil Negligence Litigation.”
Jury found in favor of family for $1.5M (reduced to $250,000 by applying malpractice cap)
On appeal a new trial denied but multiplier of 1.5 (to underscore importance of the case) raised the award to $375,000 to family
Mandated CME for Licensurein California
12 hours of CME on the topic of pain management and end of life care issues
Effective 1-1-02Impetus, in part, was Bergman v ChinSets a precedent in that the bill
mandates that physicians take a specific CME class in pain care
James v Hillhaven Corp.
North Carolina landmark case 1990Elderly gentleman with prostate cancer
and metastases to spine/left femur. Physician ordered 7.5 ml morphine
elixir every 3 hours prn pain.Patient died in excruciating pain and
the family members witnessed his suffering
Court ordered $15 million to the family
Georgia v S.Ct. GeorgiaPatient won his right in lower court to
be disconnected from the respirator (right to autonomy)
Air-hunger and restart of respiratorRecognized his right to be sedated
and have pain adequately treatedThese rights judged to be inseparable
Landmark case against a physician’s license:
A board certified pulmonologist
had license suspended for one year Under Oregon’s IPTA there is “no
longer any room for physicians who will not aggressively treat pain.”
The physician welcomed the chance to fill in his education “gap”
Attorney General Indicts A Physician For Elder Abuse*
Wound care specialist indicted on two counts of elder abuse for failure to manage pain of debridement of decubitus ulcers in nursing home patients
Michigan’s governor joins in call for better pain management
*Albert, T, “Doctor Indicted under Michigan adult abuse law . . .”, Am Med News, Aug 27, 2001.
Attorney General Indicts A Physician For Elder Abuse
4 year old law* in Michigan designed to protect senior citizens against elder abuse
First physician to be criminally charged under that law
Conviction can result in 4 years in prison and/or a $5,000 fine on each count
*MI Penal Code, CH 750. Sec. 145N.(2)
“The Physician’s oath is a sacred promise to care for patients, never to add to their suffering”
Jennifer M. Granholm
Governor of Michigan
DEA’s Focus Shifts to the AbuserMichigan joins the states that have
eliminated triplicatesThe tracking of PATIENTS using opioids
is intended to find those diverting or abusing legitimate medications
Michigan will track not just patients using schedule II but schedule III as well
DEA’s Focus Shifts to the AbuserMichigan joins the states that have
eliminated triplicatesThe tracking of PATIENTS using
opioids is intended to find those diverting or abusing legitimate medications
Michigan will track not just patients using schedule II but schedule III as well
Crimes Under Federal StatutesAbuse-misuse of a drug for
recreational reasons not the intended medical reasons.
Diversion-illicit arrangements intended to result in the the physical delivery of controlled drugs for non-prescribed uses.
Protecting the Clinician and the Patient
History and physical looking for clues of past abuse
Diagnosis as best you are ablePlan for treatment “success” Timely follow-upEducation of the patient and family
when indicated
Protecting the Clinician and the Patient
Document your H&P and treatment planUse pain treatment “agreements” for all
patients you deem vulnerable to opioidsRequest photo Ids as needed Schedule diagnostic tests appropriate to
the complaintRefer to consultants when needed
Drug-Seeking Behavior
Knows exactly the only analgesics that will work
Unwilling to have work-up or to obtain past medical records
Unable to recall names of treating physicians, places where past records are kept
Is always in a hurry
Drug-Seeking Behavior
Does not distinguish between a patient who is addicted and one who is “conditioned”
Frequently goes to ED departments or after hour urgent care centers to get pain meds
May be evidence of inadequate pain management (pseudo-addiction)
Summary of Federal Law
Federal law does not preclude the use of opioids as analgesics for legitimate medical purposes, including treating chronic pain and treating pain in addicts
Federal law does prohibit the use of opioids to maintain an addicted state without special registration as an NTP
Four A’s for Pain Treatment Outcome Assessment
AnalgesiaActivities of daily livingAdverse eventsAberrant drug-taking behavior
Summary of Liabilities in Pain Management
Medical malpracticeCommunicationDocumentation
Medical board and prosecutorial oversightHave a “plan” for treatment success as
to functionality and NRSHave a timeline for successDocument follow-up in a timely fashion
Future Progress in Pain CareBoth the medical and the legal
professions strive for the same objectives:
Efficacious pain treatmentProtection from harm for patients
who take potentially harmful opioidsWe are making great strides in both
those objectives as the professions work together.
ConclusionThe question we should pose to
patients is the same one that can be asked of us: Where are/were you trying to go as you signed on to this road of pain treatment ……The clinician will become: the provider of a better quality of life or the supplier of medications with possible, harmful side effects.
Proper pain management is within our reach