Undertreatment of pain creates new risk

The undertreatment of pain is so common that it represents a huge new liability risk for hospitals and doctors, according to experts who predict that it won’t be long before the health care community gets a wake-up call in the form of a major malpractice verdict.

Health care providers routinely neglect or intentionally refuse to treat severe pain, especially the pain of terminally ill patients, says Kathryn Tucker, JD, director of legal affairs with the Compassion in Dying Federation in Seattle. Not only is that undertreatment a cause for moral outrage, it also is reason for risk managers to consider the potential liability, Tucker says.

"Undertreatment of pain is epidemic," she says. "Patients don’t get adequate pain care. Elderly patients are at particular risk, and that’s a particular concern for risk managers because of the elder abuse statutes. That is a group known to be at risk for undertreatment and they have a legal remedy available to them that most groups don’t."

Tucker spoke on the topic at the recent meeting of the American Society for Healthcare Risk Management in New Orleans. The problem of undertreatment is not new, she says, but the liability risk has grown from nearly nothing to potentially huge in just the past few years.

In one study, researchers found that 50% of all patients who died during hospitalization "experienced moderate or severe pain at least half of the time during their last three days of life."1 Another study found that up to 40% of cancer patients in nursing homes are not appropriately treated for pain.2 In addition, more than a quarter of those experiencing pain did not receive any pain medication, and 16% were given over-the-counter pain relievers like aspirin or acetaminophen for their pain.

One tragedy of the problem is that nearly all patients in severe pain can be treated successfully. Very few patients have medical conditions that make it impossible or excessively risky to relieve their pain, Tucker says.

Pain is widespread, largely ignored problem

More than 50 million Americans suffer from chronic pain, according to Russell Portenoy, MD, chairman of Beth Israel Medical Center’s Pain Medicine and Palliative Care Department in New York City. The undertreatment of pain was confirmed recently by the Pain in America survey commissioned by Partners Against Pain, an educational resource for patients and professionals. More than half of all patients surveyed said they have experienced their pain for at least five years, and 52% said their current prescription medication is not completely, or not very, effective.

The underuse of opioids such as morphine and codeine is one reason for the undertreatment, Portenoy says. Physicians fear their patients becoming addicted or that the drugs will hasten death, and they also fear criticism from medical boards and regulatory agencies that may say they are handing out narcotics too freely.

"It is not uncommon for physicians to be investigated for prescribing controlled substances in amounts that regulators perceive as excessive," Tucker says. "Even if the physician’s conduct meets relevant guidelines for pain management, the investigations may result in physician discipline, including suspension or revocation of prescribing authority and other limitations on medical practice."

Some of those fears may be justified, Tucker says. She urges state legislatures and federal agencies to revise rules that discourage doctors from providing adequate pain relief. The other fears regarding addiction and the hastening of death are based on false assumptions, Portenoy says. Even many people with histories of chemical dependency can have chronic pain addressed with drugs and maintain control of their use.

"When prescribed and used appropriately, opioid medications improve quality of life," Portenoy says. "If doctors and others better understood the complex issue of addiction, inappropriate fear of this outcome would not contribute to undertreatment with these drugs."

Undertreatment of pain also is caused by the reluctance of patients to discuss the problem with their doctors, and physicians’ lack of skills in pain management. This is due in part to the fact that there is little training during medical school in either pain management or addiction medicine, Portenoy says. Tucker also notes that physicians should not hold back pain treatment out of fear of hastening a patient’s death. Case law has established that, she says.

"Regardless of what you think of the right to die, patients have a right to adequate pain relief," Tucker says. "The highest court in the land has made that clear."

Records create proof of undertreatment

Recent regulatory changes have upped the risk for providers when pain relief is inadequate. The Department of Veterans Affairs and the Joint Commission on Accreditation of Healthcare Organizations already require that pain be charted as a vital sign, so that creates a record of pain management for better or worse.

"Those directives from the government make it more likely that a patient will complain if pain care is inadequate," Tucker says. "And then if a lawyer comes on the scene and the substandard care can be proven, that could mean big trouble."

Some providers already have paid the price for the undertreatment of pain. In one case, a jury awarded $15 million, half of it punitive, from a nursing home where a patient had died in pain.3 The patient’s family alleged that a physician had ordered morphine for the man’s pain, but a nurse refused to administer it because she feared the patient would become addicted; she gave the man Tylenol instead.

In other cases, families have been compensated for the emotional stress of watching loved ones suffer. The Oregon Board of Medicine has disciplined a doctor for failing to provide adequate pain relief, Tucker says.

A case currently in litigation involves a disturbing callousness toward the patient’s pain, but Tucker says it unfortunately is not a rare situation. In that case, an elderly man with cancer was admitted to the hospital and was provided with a 25 mg Demerol for pain. The starting dose is typically 100 mg. The doctor ordered further Demerol only as needed, rather than ordering a constant schedule that experts say is key to controlling severe pain.

Nurses charted the man’s pain regularly, and he always reported that the pain was 7 to 10 on a 1-10 scale, with 10 being the "worst imaginable" pain. The doctor did not provide any stronger pain relief, and the patient reported that his pain was a 10 on discharge. He died at home in terrible pain, and his family claims that their pleas for pain relief were ignored. Tucker says the nurses documented the pain and the family’s repeated requests for pain relief but did not contact the doctor for a change in orders. The doctor’s visits to the patient also did not result in any change.

Tucker notes that the patient had refused chemotherapy, surgery, and radiation to treat
his cancer. "That was entirely his right to refuse those treatment options, but the doctor still was obligated to provide pain relief," she says. "The doctor’s pain control training was only his pharmaceutical class in medical school and one brown-bag lunch in 30 years."

The case has been pending for one year and the provider has made no settlement offer, Tucker says. The elder abuse provisions allow punitive damages and attorneys’ fees, she says.

"There are no financial damages at play for this patient, but this is potentially a major case. Both the doctor and the hospital are defendants," Tucker says. "There will be more patient awareness and more tort action in egregious cases."

Make providers aware of patient rights

The solution for the undertreatment of pain isn’t simple, Tucker says, but risk managers should act now to alert their clinicians to the risk. Physicians and nurses should understand clearly that patients have a right — legally, not just morally or philosophically — to adequate pain control.

"Make sure your people understand that they have to provide pain relief just as much as they have to take actions to keep the patient alive and safe," Tucker says. "Pain isn’t just something you take care of if you want to. The patient has a right to pain control, and if that is ignored, then somebody is going to pay a price. And it might be a very big price."

Other solutions involve regulatory reform. The American Society of Law Medicine and Ethics undertook an effort at reform recently by launching the Project on Legal Constraints on Access to Effective Pain Management. The project developed a model Pain Relief Act that creates a safe harbor to shelter physicians from both disciplinary and criminal action if the physician can "demonstrate by reference to an accepted guideline that his or her practice substantially complied with that guideline." The physician also must have kept appropriate records, written no false prescriptions, obeyed the Controlled Substances Act, and not diverted medications to personal use.

Finding a safe harbor

Tucker says the safe harbor concept also is encompassed in state laws intended to ameliorate the problem. Known as Intractable Pain Treatment Acts, the existing state statutes generally provide shelter from disciplinary action but make no mention of criminal exposure. The Medical Board of California adopted a policy statement in 1994 that encourages aggressive pain care and then adopted another guideline that specifically identifies failure to adequately manage pain as "inappropriate prescribing." By making undertreatment of pain a type of inappropriate prescribing, the board expressly called it a form of professional misconduct subject to the full range of sanctions.

For the health care industry as a whole, Tucker says it make take a major lawsuit to get everyone’s attention and force attention to the problem of undertreatment of pain. She notes that juries can relate well to the story of a loved one dying in terrible pain while medical professionals with the ability to stop it stand by and do nothing. The issue does not involve confusing medical issues, but pain is a topic that may disturb juries enough to prompt major awards.

"I think we’re going to see more lawsuits, and it could be that we will see a case in which a provider is held liable for a huge sum of money," Tucker says. "Unfortunately, that may be what it takes to put an end to these egregious cases."

References

1. SUPPORT (Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatments) principal investigators. A controlled trial to improve care for seriously ill patients. JAMA 1995; 274:1,591-1,594.

2. Bernabei R. Management of pain in elderly patients with cancer. JAMA 1998; 279:1,877-1,879.

3. Estate of Henry James v. Hillhaven Corp., Sup. Ct. Div. 89CVS64, Hertford County, NC (1990).