Pain medication providers face legal scrutiny
Here’s what you need to know to avoid trouble
Federal regulators and civil litigators are forcing palliative care clinicians to be more vigilant with documentation and more cautious with pain medication prescriptions, a pain management expert says. The U.S. Drug Enforcement Administration (DEA) has given medical providers mixed messages in recent years with regard to pain medication prescriptions, says Robert Twillman, PhD, pain management program director for the University of Kansas Hospital in Kansas City, KS.
When Asa Hutchinson was head of the DEA before Karen P. Tandy replaced him as DEA administrator in mid-2003, he reached out to pain management groups and talked about the issue of balance. Hutchinson said the DEA would make sure drugs are available to the people who need them but would simultaneously watch out for people who are diverting and abusing, Twillman says.
But now there’s an indication that the DEA is cracking down on prescriptions for oxycodone (OxyContin), despite the fact that most of the illegally sold oxycodone is obtained through illegal activities, such as pharmacy robberies, and not from legal prescriptions, Twillman says. “They’re cracking down on doctors, and it’s hard to understand why they are,” Twillman says.
Also, the DEA recently reversed its policy of letting physicians prescribe three months of a Schedule 2 narcotic at one time. Now physicians have to write a new prescription every month, and some doctors have responded by requiring the patient to return to their office each month, which can be a hardship for many patients, Twillman says.
Physician does time on murder charge
“We have patients who might have to come 100 miles for the appointment,” he says.
Three prominent court cases also have drawn new boundaries with regard to pain management, Twillman says. Two of the cases were civil cases that were settled in favor of the plaintiffs, and the third was a criminal case in Kansas, which resulted in a physician spending two and a half years in prison for attempted murder, Twillman says. “We’re starting to see a fair number of criminal cases against physicians for what they’re doing in pain management,” he says.
In the case of the physician who was convicted of attempted murder for the way he managed a patient’s pain, the chief lesson involves documentation, Twillman notes. “The biggest issue that caused the problem in that case was inadequate documentation,” he says. “If he had documented what he had done appropriately, it wouldn’t have been an issue.”
Twillman describes the three cases and how they are affecting pain management for end-of-life patients:
• North Carolina cancer patient: As detailed in a landmark civil suit, Henry James, a 75-year-old man with metastatic prostate cancer, had received pain control treatment in the hospital with a high dose of morphine, Twillman says. “He was discharged to a long-term care institution, and while there, his initial orders for morphine were cut drastically,” Twillman says. “Then one of the nurses decided he probably shouldn’t have all that morphine because, in the nursing director’s opinion, he was addicted to morphine.”
The nurse reduced his pain medication from the hospital’s level of 150 mg of morphine every few hours to 7.5 mg of morphine in that same period of time, adding in a mild analgesic. This resulted in the patient receiving inadequate pain treatment, Twillman notes.
When the elderly man was discharged, his family brought suit for substandard care, winning the suit in 1990. The nursing director admitted withholding the pain medication and said she had never seen anyone on such high doses, Twillman says. The jury awarded $15 million to the plaintiffs, and the insurance carrier for the nursing home later settled the case in lieu of appeal for an undisclosed amount.1
This case marked one boundary for pain management, basically saying that health care professionals could be held responsible in civil court for not treating a patient’s pain aggressively enough, Twillman says.
• California man with metastatic lung cancer: In this case, an 85-year-old man with lung cancer was admitted to the hospital with pain, and the treating physician, Wing Chin, MD, decided to give him meperidine (Demerol), Twillman says. Generally, meperidine is not a good option for elderly patients because of a potential for convulsions, particularly among weaker and older patients, he explains. The patient was in the hospital for six days, and each day nurses documented a pain level of between seven and 10 on a 10-point scale.
At the civil trial in 2001, the nurses said they gave the man meperidine whenever he reported a lot of pain, but they failed to document when they gave him the doses and whether the medication was effective in alleviating his pain, Twillman explains. “The doctor says, ‘I like to walk into the room and ask how the patient is doing, and if the patient says, ‘I’m okay,’ then that means there’s good pain control, and we don’t have to do anything,’” Twillman says.
The man left the hospital, receiving prescriptions for pain medication, but not for morphine as his family had requested. The man’s family called a hospice and received an order for morphine for him from a different doctor, and the man died three days later in good pain control, Twillman says. After his death, the patient’s family filed a claim of elder abuse. The family won a claim against the physician, while the hospital settled with them. The jury assessed $1.5 million in damages, Twillman recalls.
Since this case, California legislators passed a law requiring every physician to take 12 hours of education in pain management in palliative care, he notes. “One of the really important functions hospices serve is educating physicians in general about pain management and palliative care,” Twillman says. “When educating doctors, you can use these cases to raise the level of concern, saying, ‘We think we do a good job of taking care of pain, and we want you to do that also, and it’s important to protect yourself from liability.’”
• Kansas small-town doctor: On the other side of the boundary for pain management treatment, L. Stan Naramore, DO, a Kansas physician, was tried and convicted in 1996 of attempted murder and second-degree murder. He was sentenced to concurrent terms of five to 20 years in prison.2 The conviction was overturned by the Court of Appeals of the State of Kansas in 1998. The court wrote in its decision, “We find that no rational jury could find criminal intent and guilt beyond a reasonable doubt based on the record here.”
One of the convictions stemmed from Naramore’s pain management treatment of a 78-year-old woman who had metastatic breast cancer, Twillman says.
Doctor’s personality causes problems
As the only doctor of a small community in a rural area, Naramore was well known but not well liked, Twillman notes. “He was a little moody, blunt, and didn’t have the best bedside manner,” Twillman says. “He drove his Cadillac around Main Street and didn’t quite fit in with the locals.”
Ruth Leach, who had suffered from cancer for years, was admitted to the hospital in May 1992. Her condition continued to worsen, resulting in Leach’s children meeting with Naramore in the hospital’s chapel to discuss her condition. The family asked for more pain medication for her, despite the doctor’s explanation that further pain medication could slow her respiration and result in her death.
“In the course of talking to the family, the doctor did some things that were a little unusual,” Twillman says. “He was trying to be a nice guy and he read poetry to them, and they were a little uncomfortable with what was going on.”
When Naramore concluded the family meeting by saying he would give Leach more medication, the family became fearful that he was going to try to kill her, Twillman says. According to court documents, the woman’s son thought her respiration slowed to a low level after Naramore gave her a 4 mg shot of Versed followed by a 100 micromilligram shot of Fentanyl. The family thought she was near death, and Naramore asked everyone to hold hands while he recited Robert Frost’s poem “Into the Woods.”
After that, Leach’s son told Naramore that he thought he had given her too much medication and he would rather have his mother lie there suffering for 10 more days than have the doctor do anything to speed up her death. When the son made it clear he’d hold Naramore responsible for her death if the doctor continued to treat her, Naramore withdrew from the case and the family transported her to another hospital, where she was given morphine injections and died a couple of days later.
After this case, Naramore treated an 81-year-old man who was a severe diabetic with a history of heart disease. The man had been sent to the emergency room after being found passed out in a convenience store, and Naramore treated him with emergency procedures including artificial ventilation, pulse and blood pressure monitoring, administration of drugs, and cardioversion.
Naramore diagnosed the man as having had a stroke and being brain-dead, and he recommended removing life support. The man’s family agreed, but then the patient made movements that caused them to think he would regain consciousness. Nonetheless, the patient’s movements soon stopped, and another physician agreed that he was dead, so life support was removed.
After this case, Naramore was arrested for the attempted murder of Leach and the murder of the man who died after the stroke. It’s likely that Naramore did not receive a fair trial because it was held in the community where he already was disliked, Twillman says. “He served two and a half years in prison, and four years after the charges were filed, the appeals court unanimously reversed the verdicts based on insufficient evidence,” Twillman says.
While Naramore regained his medical license, the criminal convictions and years spent battling for his freedom and livelihood took their toll, Twillman adds.
The lesson to take from Naramore’s case is that he had failed to document which drugs he prescribed and how much of the medications he administered, and he didn’t provide good follow-up in terms of vital signs after he gave the medications, Twillman says. “The whole thing was a mess; nobody was writing anything down,” he says. “If he’d written down how much he gave, and if they’d assessed the patient, they would see that there wasn’t anything wrong with her breathing.”
References
1. Rich BA. A prescription for pain: The emerging standard of care for pain management. William Mitchell Law Review 2000: 1-60.
2. No. 77,069: In the Court of Appeals of the State of Kansas, Appellee, v. L. Stan Naramore, DO, Appellant. Syllabus by the Court. Website: www.kscourts.org/kscases/ctapp/1998/19980724/77069.htm.
Federal regulators and civil litigators are forcing palliative care clinicians to be more vigilant with documentation and more cautious with pain medication prescriptions, a pain management expert says.
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