Few cases allege failure to treat pain Most claims allege excessive prescribing
(Editor's Note: This is the second part of a two-part series on legal risks involving pain management. This month, we report on cases alleging under treatment of pain. Last month, we covered allegations of overprescribing of opioids.)
Malpractice claims involving excessive prescribing of opioid analgesics are increasing, but malpractice risks also stem from withholding appropriate opioid analgesics.
"Physicians are increasingly feeling caught between the ethical requirements to address patients' pain and being seen as ordering too many controlled substances," says Glenna Schindler, MPH, RN, CPHQ, CPHRM, a risk management specialist at Endurance Risk Solutions in Chesterfield, MO. "It is a growing dilemma."
At times, physicians do not want to prescribe controlled substances to patients with history of substance use disorder for fear of triggering further addiction problems. "This indicates a lack of knowledge in treating both acute and chronic pain and how to meet the pain relief needs of patients," says Schindler.
Physicians sometimes withhold appropriate opioids out of an exaggerated concern about regulatory scrutiny or unwarranted fears about the risks and side effects of opioids, according to Ben A. Rich, JD, PhD, professor and an alumni association endowed chair of bioethics at the University of California Davis Health System's School of Medicine. "Erring in either direction may constitute a departure from the standard of care and thus generate potential medical malpractice liability," says Rich.
Several medical board decisions have imposed disciplinary sanctions on physicians for failure to properly manage pain or demonstrating deficiencies in this area of practice.1,2
The Joint Commission's 2000 "pain as the fifth vital sign" campaign could be used as evidence to help an attorney prove whether a physician defendant violated the standard of care, adds Rich. However, it has not had much of an effect on individual physician prescribing practices, particularly with regard to chronic pain, he says. "The initiative has been much maligned by many physicians, who claim that pain cannot legitimately be considered a vital sign since there is no objective way to measure it," says Rich.
Several malpractice claims from the 1990s to the early 2000s, which found healthcare professionals liable for under-treating pain, made it clear that juries are prepared to award substantial damages when patients are subjected to unnecessary pain and suffering because of the ignorance or indifference of clinicians, says Rich.3-5
A 1991 case involved an elderly man with advanced prostate cancer whose nurse at a skilled nursing facility replaced his opioid regimen with a mild tranquilizer. The facility was later sanctioned by the state licensing authority for substandard care of patients.
"Following his death his family brought suit, alleging, in what appears to be a case of first impression, that his suffering was the product of substandard care," says Rich. After a trial on the merits, a rural North Carolina jury awarded compensatory damages of $7.5 million and an additional $7.5 million in punitive damages.
A 1999 case involved an 85-year-old man with severe persistent pain not well-controlled on oral Vicodin. He was given morphine after complaining of severe pain at an emergency department, and the morphine then was discontinued by a hospitalist. The family filed a complaint against the hospitalist with the Medical Board of California for failure to treat the patient's pain. "The board's expert reviewer opined that the pain management was inadequate, but the board declined to take disciplinary action based only on a single episode," says Rich.
The family filed a claim grounded on elder abuse against the medical center and the hospitalist because a standard malpractice claim would not suffice for recovery in California's framework of tort reform legislation. A jury concluded that the hospitalist's management of the pain was sufficiently substandard to constitute elder abuse and awarded $1.5 million in damages.
"The verdict was subsequently reduced by the court on the grounds that the statute set a lower limit on damages for pain and suffering," notes Rich.
In a 2002 case involving a man with terminal mesothelioma, the patient received no analgesics until the fourth day after admission, despite an advanced directive specifically requesting aggressive pain relief even with the risk of hastening his death. After his death in the facility, the family filed an elder abuse claim. On the eve of trial, all defendants the hospital, physicians, and skilled nursing facility settled with the plaintiffs for an undisclosed sum. The physician subsequently was disciplined by the medical board for demonstrating material knowledge deficits concerning the use of analgesics.
"Post-2004, the pendulum seemed to be swinging [in the opposite direction]," says Rich. "Most litigation is now of the criminal variety against physicians, for carelessly and excessively prescribing opioids to patients who subsequently died of drug overdoses."
1. Oregon Board of Medical Examiners, Stipulated Order in the Matter of Paul A. Bilder, MD, September 1999.
2. Medical Board of California, In the Matter of the Accusation against Eugene B. Whitney, MD, March 2003.
3. Estate of Henry James v. Hillhaven Corp., 89 CVS 64 (Superior Court of Hertford Co., NC, 1991)
4. Bergman v. Chin, et al., No. H205732-1 (Superior Court of Alameda Co, CA 1999)
5. Tomlinson v. Bayberry Care Center, et al. No. C 02-00120 (Superior Court of Contra Costa Co., CA 2002).
• Ben A. Rich, JD, PhD, Professor and School of Medicine Alumni Association Endowed Chair of Bioethics, University of California -- Davis Health System. Phone: (916) 734-6010. Fax: (916) 734-1531. Email: firstname.lastname@example.org.
• Glenna Schindler, MPH, RN, CPHQ, CPHRM, Risk Management Specialist, Endurance Risk Solutions, Chesterfield, MO. Phone: (636) 681-1208. Email: email@example.com.