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An ongoing case highlights one of the worst fears of physicians — that they will be prosecuted for using narcotic pain medications with seriously ill patients.
In Utah, Robert Weitzel, MD, a board-certified psychiatrist, was taking care of geriatric psychiatric patients at Davis Hospital Layton, UT, in the winter of 1995-96 when several demented and highly agitated patients were admitted. The average age of the patients was 86, and many were seriously medically ill, with such problems as gastrointestinal bleeding, sepsis, cardiovascular disease, severe osteoarthritis, renal failure, and pneumonia. The families of four of the mentally incompetent patients were advised of the dire situation and requested withdrawal of medical interventions, while asking that the patients be kept comfortable.
Almost all previous treatments were stopped for those patients and were instead given moderate doses of opiates on Weitzel’s orders, and nursing comfort care. None of the patients died immediately after receiving the opiates, but the four patients died soon after from their medical conditions, and another 91-year-old patient died soon after admission. She had been given morphine for evident severe pain. The five patient deaths grabbed the attention of the county prosecutor, who charged Weitzel with five counts of first-degree murder. The prosecutor argued that the patients did not need opiates for pain relief, despite evidence to the contrary, and that Weitzel knowingly and intentionally hastened their deaths with the medication.
Weitzel contended that he merely provided the necessary pain management for patients under his care, and that the opiates did not hasten their deaths. A jury convicted Weitzel of lesser charges of manslaughter and negligent homicide and sentenced him to up to 15 years in prison. After the conviction, it was discovered that an opiates and pain medication expert told the district attorney not to prosecute because no crime had been committed. The prosecution did not tell the defense of that recommendation, which resulted in a motion for a new trial.
After six months and a day in prison, Weitzel was released. He still is fighting attempts by the state to retry the case. Stripped of his medical license, he now waits tables at a restaurant.
Pain management is an area where many physicians feel they are on thin ice. Prescribe too liberally and be charged with murder or be investigated for drug trafficking. Prescribe too little and be charged with elder abuse or sued for malpractice. Too often, physicians react by being too cautious. David E. Joranson, MSSW, senior scientist and director of the Pain & Policy Studies Group and the Comprehensive Cancer Center at the University of Wisconsin in Madison has studied the problem and says there clearly is a chilling effect from cases that get the public’s attention.
Physicians, nurses, and pharmacists often withhold opioids to avoid scrutiny for overprescribing, he says. Other organizations also have noted the problem, with the American Pain Society and the American Society of Addiction Medicine recently urging more attention to clinicians who play it safe by not providing pain medicines. They both caution that patients may unnecessarily suffer when health care providers are skittish about using opioid pain medications, and underprescribing can bring on the wrath of Joint Commission on Accreditation of Healthcare Organizations regulators and plaintiffs’ attorneys now that the standard of care is clear.
Joranson says criminal prosecutions or investigations by drug enforcement authorities affect a small number of health care providers, but the risk is still significant. State medical boards have improved their education about pain management, he says, and many states that have new and progressive regulations or guidelines that specifically recognize the use of opiates in the treatment of pain. Many pain management-related investigations and prosecutions of physicians from past years would not be likely to happen today, he says.
Risk managers must watch out for physicians who respond with so much caution that they underprescribe pain medications, Joranson says. Aside from the tragedy of patients needlessly suffering, there now is substantial precedent for civil cases against the provider. A California doctor recently was ordered to pay a former patient’s family $1.5 million because he failed to adequately treat the dying man’s pain. Hospital records proved that the man was in terrible pain and that the doctor failed to provide adequate medication.
Wing Chin, MD, treated the 85-year-old man at Eden Medical Center in Northern California as he was dying of lung cancer. The hospital staff assessed and charted the man’s pain level as required by the Joint Commission, and those records showed that he always reported that the pain was 7 to 10 on a 1-10 scale, with 10 being the "worst imaginable" pain. Chin did not provide adequate pain relief, and the family sued both the hospital and the physician. The hospital settled out of court for an undisclosed sum of money. The jury awarded $1.5 million, but the judge was expected to reduce the sum to $250,000 in compliance with state caps on jury awards.