Alert: Poor pain management has serious legal consequences
Alert: Poor pain management has serious legal consequences
California case sends wake-up call to clinicians
An 85-year-old man suffered needlessly from cancer pain despite his family’s pleas to his physician to prescribe more effective pain medication. In a move that sent a clear message to the nation’s health care professionals, a California superior court judge rejected defense motions to dismiss an elder abuse claim for undertreatment of pain brought by the patient’s family, and now the man’s physician is set to stand trial.
"This ruling will have a huge impact on end-of-life care, regardless of the outcome of this case," notes Barbara Coombs Lee, executive director of Compassion in Dying Federation in Portland, OR, which sponsored the case on behalf of the patient’s family. "California medical providers are now on notice: Either treat dying patients properly or risk significant consequences."
If successful at trial, the family will be able to recover damages for the patient’s pain and suffering in the case against Wing Chin, MD, with Eden Medical Center in Castro Valley, CA, says Kathryn Tucker, JD, director of legal affairs for Compassion in Dying Federation. "Those damages would not have been recoverable under a California medical malpractice claim," she explains. "By successfully filing an elder abuse claim, the family will also be able to recover attorney’s fees and avoid the cap on damages in the medical malpractice statute."
Pain management advocates and experts expect to see an increase in legal actions such as the one against Chin and a 1999 medical board disciplinary action involving Paul A. Bilder, MD, a Roseburg, OR, physician. "A health care legal expert I spoke to recently predicts we will see a sharp rise in this type of case in the next few years," says Mary Lou Perin, MEd, MSN, OCN, president of Pain Relief/USA and coordinator of the Oklahoma Pain Project, one of the nation’s largest pain management education efforts.
"The term we will see used in these cases is willful ignorance.’ I consider that to mean not only a failure to meet the standard of care for pain management, but rather a clinician’s failure receive an adequate education in the assessment and management of pain," she says. (See article, p. 56, for more on the California and Oregon undertreatment of pain cases.)
"I think that these cases are a direct consequence of the recent establishment of nationally recognized higher standards of care for pain management by medical associations and organizations," says David E. Joranson, MSSW, senior scientist and director of the pain policy studies group at the University of Wisconsin Compre hensive Cancer Center in Madison. "When you want to institutionalize a higher quality of pain management in a particular institution or a particular state, you set goals to establish principles for adequate care, and the result of that is that the line between adequate care and inadequate care suddenly becomes clear and measurable."
Joranson also predicts that cases such as the Chin and Bilder cases will increase. "I think the number of these cases will arise spontaneously from parties of people who have been hurt due to inadequate pain management and advocacy efforts by organizations working to improve pain management," he says. "I think these cases of undertreatment of pain should certainly be dealt with, but they should not obscure the fact that most efforts toward pain management should continue to go through rigorous education efforts."
Finding the middle ground
Education about what constitutes good pain management must be part of the process for improving pain management practice in the United States, agrees Tucker. "Good information about pain management only started flowing to physicians in the past several years. We have to make efforts to educate the public and the clinicians about proper pain treatment."
In the 1980s and early 1990s, the war against drugs was at its peak, and physicians were pressured to limit the use of prescription painkillers. Government investigators at the state and federal levels paid close attention to physicians who prescribed high amounts of narcotics in an effort to uncover fraud and abuse in government-sponsored health care programs.
Physicians also erred on the side of caution in prescribing pain medications for patients out of fear of addicting their patients to powerful pain killers. Rather than risk punishment for overprescribing drugs, it was safer for physicians to take a conservative approach to pain medications.
"Now, we’re putting physicians — and health care organizations — on notice that there is accountability in underprescribing pain medication. We’re trying to cut a swath of conduct down the middle between underprescribing and overprescribing and identify where proper pain treatment can and should be," says Tucker. "Compassion in dying is helping force these cases onto the radar screen of risk managers and, in doing that, [we hope], causing changes in the practice of pain control at the bedside of patients."
Tucker encourages case managers to take an active role in this education process. "Case managers are often frustrated by physicians who are not adequately prescribing pain medication for patients," she says. "I hope that case managers are aware that there can be accountability for individual physicians, nurses, and institutions who fail to adequately treat pain and that it will give them the courage to be more aggressive in requesting pain relief for their patients."
Compassion in Dying reviews potential cases of undertreatment of pain and pursues disciplinary and legal action against accountable parties when appropriate, adds Tucker. "Now, when Dr. Smith fails to prescribe adequate pain medication for your patient, you can say, He needs pain relief, and if he doesn’t get, it we might all just end up in court.’ We are delighted to hold physicians and their organizations accountable in court, if necessary and appropriate."
Filling those big shoes
Of course, it’s important for case managers to have the right education and vocabulary to talk about pain with physicians, notes Perin. "As part of our pain management education program, we coach nurses on how to discuss pain issues with physicians. We work from the premise that pain management is performed from evidence-based practice and done mathematically."
Perin teaches nurses the morphine equivalents for most commonly prescribed pain medications. "We show the nurses how to calculate the morphine equivalent for each drug so that when nurses call physicians to request changes in pain orders, they have a language to use."
Nurses trained by Pain Relief/USA are coached to approach physicians in the following manner: "Dr. Smith, I’m calling about Mr. Jones, who is the hospital for condition X. He is on the following pain medications and has taken X doses in the past 24 hours or the equivalent of X mg of morphine. His pain level has not dropped below a six in the past 24 hours, and our pain policy calls for a level of four or below. Would you consider making the following changes in his pain management program?"
As Perin explains, "We teach nurses how to titrate medications for pain and how to say when patients are not getting relief. For some nurses this comes easily, but for others it’s very difficult. We’re really asking nurse to fill out their shoes, and some are not ready for that step."
Nurses are the first health care professionals educated in good pain management practices under the Oklahoma Pain Project, notes Perin. "We intentionally teach nurses first. Then we do a lot of publicity to let physicians know what’s coming. We send them a letter and say, Don’t be surprised if you get a phone call about pain and a nurse actually makes a suggestion for improving pain relief for one of your patients.’ We prepare the physicians for the nurses’ new knowledge base and inform them that nurses are going to be more proactive about pain management to stir things up."
Of course, case managers also must take the lead in obtaining adequate pain relief for their patients, says Curtiss. "In my opinion, the responsibility for pain management falls to the case manager regardless of the setting. Case managers are the ultimate care coordinators and, as such, are directly accountable for the pain relief of patients under their care," she stresses.
"For all of us, these recent legal actions are a wake-up call. We have known how to manage pain for nearly 20 years, yet pain is still a problem in the United States. The legal community and the regulatory agencies have put us on notice that we have a professional responsibil- ity to identify and relieve pain," she says. (For details on assessing pain in your patients, see story, p. 57.)
"We would like to think that health care professionals and organizations would make pain relief a priority for humanitarian reasons," says Betty R. Ferrell, RN, PhD, FAAN, research scientist with the City of Hope National Medical Center in Duarte, CA, who has written extensively on the economic cost of uncontrolled pain.
"Unfortunately" Ferrell says, "there are many competing priorities in health care organizations. Organizations will call upon case managers to prove that poor pain management costs organizations money and carries a liability risk."
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