Creating a Community of Care 

Legal Liability

 

          Home Donate Volunteer Contact Us Search & Info
 


Home
Up

The Legal Liability of Undertreatment of Pain
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 undertreatment 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/standards_frm.html 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 the Maine Hospice Council 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.


    • Send mail to the webmaster with questions or comments about this web site.
    Last modified: August 14, 2008