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Pain Management and Provider Liability: No More Excuses

Published online by Cambridge University Press:  01 January 2021

Barry R. Furrow
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Pain is undertreated in the American health-care system at all levels: physician offices, hospitals, long-term care facilities. The result is needless suffering for patients, complications that cause further injury or death, and added costs in treatment overall. The health-care system's failure to respond to patient pain needs corrective action. Excuses for such shortcomings are simply not acceptable any longer.

Physicians have long been accused of poor pain management for their patient. The term “opiophobia” has been coined to describe this remarkable clinical aversion to the proper use of opioids to control pain. If the professional mandate of the health-care professional is to relieve suffering, then physicians are falling far short of their obligations by accepting myths about the use of opioids in the face of evidence to the contrary.

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Article
Information
Journal of Law, Medicine & Ethics , Volume 29 , Issue 1 , Spring 2001 , pp. 28 - 51
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Copyright © American Society of Law, Medicine and Ethics 2001

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References

Pain is defined as “an unpleasant sensory and emotional experience arising from actual or potential tissue damage or described in terms of such damage. Pain is always subjective. Each individual learns the application of the word through experiences related to injury in early life. It is unquestionably a sensation in a part or parts of the body but it is also always unpleasant and therefore an emotional experience.” International Association for the Study of Pain, “Pain Terms: A List with Definitions and Notes on Usage,” Pain, 6 (1979): 249.Google Scholar
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See, for example, Frame v. Kothari, 515 A.2d 810 (N.J. Super. Ct. App. Div. 1985) (defendant physician's misdiagnosis of a cerebella hemorrhage and acute hydrocephalus due to blunt trauma to the skull was held to be an event perceived by the parents; first, the parents' discussion with the defendant about their son's deteriorating condition was an “observation”; and second, their distress was foreseeable after the doctor was informed of the condition and failed to properly treat it). See also Ochoa v. Superior Court of Santa Clara County, 216 Cal. Rptr. 661, 703 P.2d 1 (Cal. 1985) (mother suffered distress after visiting her son who was receiving “woefully inadequate” medical care in a juvenile detention home).Google Scholar
See, for example, Smelko v. Brinton, 740 P.2d 591 (Kan. 1987) (parents waiting outside the operating room for their baby to undergo surgery; baby is negligently burned during the surgery and they discover the burn when he is brought out; court held that merely seeing the bad result is not sufficient for recovery). But see Martinez v. Long Island Jewish Hillside Medical Center, 518 N.Y.S.2d 955, 512 N.E.2d 538 (N.Y. 1987) (physician negligently diagnosed a pregnant woman's condition as requiring an abortion; the woman aborts the fetus and then discovers the abortion was not needed; recovery allowed).Google Scholar
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Case law requires physicians to warn third parties about, or take steps to protect them from, patients who are taking medication. These steps might include warning the patient about the effects of medication, or even refusing to prescribe the medication if the patient might still drive. See Welke v. Kuzilla, 375 N.W.2d 403 (Mich. Ct. App. 1985); Myers v. Quesenberry, 193 Cal. Rptr. 733 (Cal. Ct. App. 1983) (physician failed to warn his patient, a diabetic, of the dangers of driving); Calwell v. Hassan, 908 P.2d 184 (Kan. Ct. App. 1995) (physician treated patient for sleep disorder, failed to warn him not to drive).Google Scholar
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The most important work to date addressing the broad issue of medical error is the Institute of Medicine report, To Err Is Human: Building a Safer Health System. The report is ground-breaking in its emphatic recognition, finally, that health care is a complex technological system prone to error. The report calls for “a comprehensive approach to improving patient safety,” noting that “[m]ost errors and safety issues go undetected and unreported both externally and within health care organizations.” With the exception of anesthesia, where the recognition that systems factors cause errors has led to a fail-safe system and better training to reduce such errors, health care has yet to implement any larger mechanism to detect errors based on system deficiencies and individual errors.Google Scholar
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For an early acknowledgment of this problem, see generally Fagerhaugh, S.Y. and Strauss, A.L., Politics of Pain Management: Staff-Patient Interaction (Reading, Massachusetts: Addison-Wesley, 1977). A more recent review of the literature is found at Morgan, supra note 4.Google Scholar
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See Emory University v. Porter, 120 S.E.2d 668, 670 (Ga. Ct. App. 1961); Lauro v. Travelers Insurance Co., 261 So. 2d 261 (La. Ct. App. 1972), cert. denied, 262 So. 2d 787 (La. 1972).Google Scholar
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The case most identified with corporate negligence is Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965). The Illinois Supreme Court relied upon several sources of standards to establish the standard of care for the hospital, including standards by the Joint Commission on Accreditation of Heathcare Organizations for hospital accreditation, the state licensing regulations, and the defendant's bylaws. All of these sources mandated that a hospital assume certain responsibilities for the care of the patient. The court allowed the jury to use these standards to evaluate the failure of both the nursing staff and administrators to blow the whistle on the defendant's handling of the case.Google Scholar
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See, e.g., Strubhart v. Perry Memorial Hospital Trust Authority, 903 P.2d 263 (Okla. 1995) (adopts doctrine of independent corporate responsibility, requiring hospitals to ensure that only competent physicians have staff privileges; also requires hospitals to take reasonable steps to ensure patient safety when it knows or should know that physicians have displayed incompetence); NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564 (Ky. Ct. App. 1993).Google Scholar
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Such a duty was rejected by the Maine Supreme Court in Gafner v. Down East Community Hospital, 1999 WL 605619 (Me. 1999).Google Scholar
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See, e.g., Cronic v. Doud, 523 N.E.2d 176 (Ill. App. Ct. 1988).Google Scholar
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The new JCAHO Pain Management standards must be satisfied by hospitals, home care agencies, nursing homes, behavioral health facilities, outpatient clinics, and health plans. These standards include:Google ScholarGoogle Scholar
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This Act is also often referred to as “COBRA” for the budget reconciliation act of which it was a part, or as the “Anti-Dumping Act.”Google Scholar
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The statute requires that the hospital “provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition … exists.” 42 U.S.C.A. § 1395dd(a).Google Scholar
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The statute defines this term as “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” 42 U.S.C.A. § 1395dd(e)(1). This section also defines the term for women in labor.Google Scholar
The statute defines the terms “to stabilize” and “stabilized” with reference to the potential for material deterioration in the patient's condition, i.e., “no material deterioration of the condition is likely, within reasonable medical probability” resulting from or occurring during the transfer. 42 U.S.C.A. § 1395dd(e)(3)(A) and (B).Google Scholar
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The statute includes discharge of the patient within the definition of “transfer.” 42 U.S.C.A. § 1395dd(e)(4).Google Scholar
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The statute also provides that a plaintiff in a civil action under the Act may receive “such equitable relief as is appropriate.” Few reported cases thus far have issued equitable relief, but see Owens v. Nacogdoches County Hospital District, 741 F. Supp. 1269 (E.D. Tex. 1990).Google Scholar
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The statutory language requires that the patient request examination or treatment, but the request for treatment in the emergency room has generally not been the subject of dispute. However, see Stevison v. Enid Health Systems, 920 F.2d 710 (10th Cir. 1990).Google Scholar
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But see Collins v. DePaul Hospital, 963 F.2d 303 (10th Cir. 1992), in which the court “accept[ed] as true counsel's assertion that ordinarily” such a patient would have had a certain diagnostic procedure and that the hospital staff had thought the procedure had been done even though in fact it had not. The court upheld summary judgment for the defendant because the statute did not “require a hospital to determine … all of the emergency medical conditions from which a particular individual may be suffering.” The applicability of this statement should be limited to the facts of Collins: The patient was transported to the emergency room with multiple injuries, including a fractured skull, and he stayed at the hospital for nearly a month recovering from his injuries. A fractured hip was not detected.Google Scholar
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According to clinical practice guidelines on the management of chronic pain in older persons, “[f]or some conditions, chronic pain is defined as pain that exists beyond an expected time frame for healing. For other conditions, it is well recognized that healing may never occur. In many cases, chronic pain is understood as persistent pain that is not amenable to routine pain control methods. Because there are many differences in what may be regarded as chronic pain, the definition remains flexible and related to specific diagnoses or cases.” AGS Panel on Chronic Pain in Older Persons, supra note 22 and accompanying text on the four types of pain, at 635–36.Google Scholar
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In Bergman v. Chin, the family of an elderly hospital patient filed suit after the state medical board failed to act against the treating physician. The daughter said: “We found that the care was grossly inadequate to my father, that they did not provide adequate pain medication or relief to him while he was in the hospital or when he was discharged to our home to have hospice care.” California's Elder Abuse Act has no cap like that for medical malpractice claims. Punitive damages and attorneys fees are recovered, and pain and suffering survives death and can accrue to the estate. “The goal of the family in this case and of Compassion in Dying is that this kind of accountability will motivate physicians and other providers to be more attentive and aggressive in caring for pain.” Foubister, V., “Doctor Faces Charges for Allegedly Undertreating Pain,” AMA News (March 20, 2000).Google Scholar
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