October 2002
Vol. 38, No. 10

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Health care and the law

Failure to treat pain: no more excuses

Barry R. Furrow

Minimizing a patient's suffering is an important part of medical treatment. Lawyers can cite an emerging standard of care to support a client's claim for inadequate pain management.

Pain is undertreated in the American health care system at all levels: physician offices, hospitals, and long-term care facilities.1 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 short-comings are no longer acceptable.

Physicians have long been accused of poor pain management for their patients. The term "opiophobia" has been coined to describe this remarkable clinical aversion to the proper use of opioids to control pain.2 If the health care professional's mandate 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.3

The possible reasons for health care providers' failures to properly manage pain are many. First, medical schools educate students poorly about narcotics and proper pain management, and they remain ignorant in practice about appropriate treatment choices,4 often rapidly absorbing professional norms that reflect a culture hostile to drug use.5 Second, threats of punitive action loom large in providers' vision: criminal prosecution for use of controlled substances, sanctions involving the loss of hospital staff privileges for use of opiates, medical licensing board disciplinary action, and so on. Uncertainty about legitimate opioid use, coupled with a regulatory system that threatens sanctions, intimidates physicians.6 Third, patients—worried about tolerance and addiction to the opioids—receive little information from providers.7 Fourth, lack of insurance coverage may deny patients access to costly long-term pain management with its multiple treatment options.8

Clearly, the legal and regulatory environment is a complicated one. What is missing is a source of pressure to counteract the fears of criminal prosecution and the forces of both inertia and reimbursement restrictions. Those forces push physicians, hospitals, managed care organizations, and nursing homes to undertreat pain. But tort liability is a powerful external threat, and it can work in tandem with other constructive pressures to improve pain management.

The threat of a malpractice suit for undertreatment of pain is currently quite low. Few judicial decisions discuss pain management. Pain as a component of a tort suit shows up primarily in pain and suffering awards for a physician's negligent treatment or diagnosis that leads to physical harm and accompanying pain, workers' compensation claims for pain treatments, and emotional distress claims. If, however, a physician's treatment of the patient's illness meets the medical standard of care, then the pain that accompanies the normal course of illness typically has not been compensable. What is needed is recognition that the standard of care in treating patients includes pain management as much as it does treatment of the disease.

The threat of tort litigation can improve treatment and management of pain by both physicians and institutional providers by spotlighting providers' failures to comply with an emergent standard of proper pain management. This threat can be a powerful incentive to change medical practices.

Standard of care

Failure to properly assess, treat, and manage pain is professional negligence.9 The problem for plaintiffs is to establish a standard of care based on a clear practice in favor of sophisticated pain management. The duty to relieve suffering is articulated in the ethical principles governing clinical practice—the Hippocratic Oath and the ethics code of the American Medical Association (AMA)—and the statements of medical leaders.

For example, the AMA's Code of Medical Ethics states, "Physicians have an obligation to relieve pain and suffering and to promote the dignity and autonomy of dying patients in their care. This includes providing effective palliative treatment even though it may foreseeably hasten death."10 Nurses, likewise, are admonished to "use full and effective doses of pain medication for the proper management of pain in the dying patient. The increasing titration of medication to achieve adequate symptom control, even at the expense of life, thus hastening death secondarily, is ethically justified."11

Medical practice at all levels lags behind these ethical expressions of duty. Proving negligent pain management is difficult for the plaintiff in light of the medical profession's current failures to treat pain effectively.

Nevertheless, plaintiffs can point to increasingly well-established standards of care. Organizations such as the Agency for Health Care Policy and Research, the Agency for Healthcare Research and Quality, the American Pain Society, the American Academy of Pain Medicine, the American Geriatric Society, and the American Society of Anesthesiologists have promulgated pain control standards.12 The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and the National Committee on Quality As surance have also been paying more at tention to an institution's standards for pain management during the accreditation process.13

Such guidelines are likely to be used in litigation. They provide the beginning of a bright-line test for measuring providers' shortcomings in managing patient pain.

The heart of any malpractice case is proof that the defendant failed to meet the standard of care. A physician who provides pain management for a patient must do so properly. A plaintiff claiming failure to treat for pain must offer evidence that the standard of care required proper pain management in his or her situation.

Courts have held that a patient can expect proper treatment, defined by the emerging standards of care as encompassing a right to relief from pain. For example, in State v. McAfee, a quadriplegic incapable of spontaneous respiration sought court approval for discontinuation of his respirator. The Georgia Supreme Court affirmed his right to refuse medical treatment and to receive proper sedation:

Can a physician argue that medical school did not train him or her in proper pain management and that physicians' customary practice is to undertreat pain? If a customary practice is an uninformed practice, the plaintiff's experts can attack it. A growing body of testimony by physicians who have studied pain reflects an emerging consensus on its proper treatment—and you can bet that every juror can understand and empathize with a plaintiff's pain.15

The issue is whether the customary practice was a product of reflection or the result of ignorance and inertia. Courts have at times instructed the trier of fact that customary practice need not always be an absolute defense—that evidence of good practice may be introduced. Judicial deference to customary practice is, in fact, weakening. The Wisconsin Supreme Court ob served in Nowatske v. Oserloh:

A physician can use pain management guidelines to defend his or her treatment in the face of a different customary practice. These guidelines are already generally accepted and used as a reference in workers' compensation cases in many states, since workers often claim both job-related disability and the pain it causes.17 The workers' compensation judge often has to make findings as to whether a particular medical treatment is necessary. Statutes clearly allow compensation not only for curative treatment but also for palliative care, including aggressive pain management using opioids over the long term.

In City of Jennings Police Department v. Dorr, for example, the claimant suffered from chronic pain and depression due to a severe back injury. She had tried several drugs, and her physician finally prescribed morphine sulphate for pain relief—specifically, 180 milligrams every eight hours, a dose usually reserved for chronically or terminally ill cancer patients. The Louisiana Court of Appeal noted that the medical literature supported long-term treatment with high dosages in certain cases, although there was a split of opinion in the medical community. The court found that the level of drugs prescribed was not excessive and upheld the physician's treatment plan as appropriate.18

Courts in a variety of cases—malpractice, workers' compensation, and medical discipline, for example—apply a standard increasingly calibrated to proper pain management practices. As long as the physician can present evidence of a thoughtful pain management program for a particular patient, courts are willing to respect aggressive opioid use.

Liability theories

Failure to refer to a pain specialist. Multidisciplinary pain programs are acknowledged as cost-effective approaches to pain.19 The ideal program features several specialists, including an anesthesiologist, behavioral medicine specialist, physical therapist, rehabilitative medicine specialist, and case managers to oversee and coordinate care.20 Established tort principles require that a physician make a referral to the appropriate specialist when the doctor lacks the knowledge or experience to properly treat the patient.21

In Freeman v. Cleveland Clinic Foundation, the plaintiffs' son committed suicide. They argued that the surgeon who was treating him for his knee injury negligently failed to refer him to a pain management clinic after concluding that he would not benefit from further physical treatment. The Ohio Court of Appeals held that failure to refer did not proximately cause the young man's death, but it did not reject the possibility of a duty to refer.22

In a more typical malpractice case, where a patient is experiencing acute or chronic pain and the physician fails to treat it because he or she lacks pain management knowledge, it is more likely that a court will find a duty to refer.

The common law duty to refer is well established. For instance, in Johnson v. Kokemoor, a Wisconsin informed-consent case, the state supreme court held that because the physician lacked experience with a surgical procedure, he should have offered the patient a referral to a nearby, experienced surgeon.23

As the specialties of pain management continue to develop, physicians who do not want to manage their patients' pain have a duty to refer. Patients whose diseases involve complicated pain, like many cancer patients, require pain management as an integral part of their treatment. A pain management specialist must therefore be part of the treatment team. A physician who refuses to either treat the pain according to current guidelines or refer the patient is acting unethically.

It can also be argued that a primary care physician must become familiar with pain management treatments, since referral may not always be possible—because of either insurer limitations or distance from a specialist. In such cases, the duty of continued treatment binds the physician to learn about pain and its control.

Infliction of emotional distress. Can a patient or his or her relatives as bystanders sue for infliction of emotional distress because of the patient's unrelieved suffering? The family members of a postoperative or terminally ill patient are vulnerable and anxious. A loved one's visible suffering can predictably create emotional distress in the family.

Although little case law exists in support of such a duty toward family members, it can be persuasively argued. Courts have allowed plaintiffs to sue health care providers for the negligent infliction of emotional distress under particularly egregious circumstances.

One example is Oswald v. LeGrand.24 The plaintiffs, a married couple, made emotional-distress claims in an obstetrical negligence action. The wife was pregnant and began to have difficulties before her five-month checkup. She was admitted to the hospital, where she was treated rudely by physicians and staff and finally gave birth to a child who was presumed to be stillborn but turned out to be alive. The Oswalds claimed, among other things, severe emotional distress and mental anguish caused by witnessing the negligent treatment of their newborn infant.

The court observed that tort law allows recovery for emotional distress when it is connected to physical injury or "where the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm. . . . [W]e think liability for emotional injury should attach to the delivery of medical services."25

Oswald focused on the vulnerability of the plaintiffs, coupled with the "crass insensitivity" of the medical staff.26 In a similar case, Wargelin v. Sisters of Mercy Health Corp., a series of obstetrical disasters befell the plaintiffs.27 The obstetrician visited only twice during labor, even though the plaintiff's uterus was lopsided and the fetal monitor showed the baby was in distress, indicating that a cesarean section was necessary. The staff failed to react. An intern eventually delivered the plaintiff's child, who was blue and not breathing, and placed it on the mother's stomach as if it were a healthy infant. Realizing the child's condition, the obstetrician grabbed the child and began to pound on her chest and administer electrical shocks to revive her. A call for a pediatrician went unanswered, and after 15 minutes, the rescue attempt was abandoned.

The Michigan Court of Appeals applied the bystander rule, which permits a person witnessing an injury to a family member to recover if the person is present or suffers shock "fairly contemporaneous" with the event.28 The court held that "the cumulative effect of all the events surrounding the stillbirth of the child, if proven to be negligent at trial, are sufficient to cause a parent to suffer emotional and mental distress."29

In such cases, the courts have required a showing that the plaintiff observed the disturbing events. Some state courts have liberally construed "observation" to include a discussion with a physician about a loved one's deteriorating condition.30 Most courts, however, require some direct observation of the events causing the bad outcome, not just observation of the outcome itself.31

In some jurisdictions, courts are reluctant to allow observational distress. In Gray v. INOVA Health Care Services, a mother sued a hospital for negligent infliction of emotional distress after seeing her young daughter's physical reactions to a drug overdose during a medical test.32 The plaintiff alleged that she contemporaneously experienced extreme shock, blacked out, fell to the floor, and vomited, and that she still suffers from mental anguish. The Virginia Supreme Court ruled for the defendant on the grounds that the hospital owed no duty to the mother, only to the child who was the patient.

However, Gray is distinguishable from Oswald, where active labor and its stresses involved both parents intimately in the birth process, and where the staff's behavior was reprehensible. In Gray, the fault lay in a negligent dosage of drugs, not a cascade of rude and insensitive behaviors directed at vulnerable parties.

The doctrine of negligent infliction of emotional distress, therefore, may offer a remedy to vulnerable family members who watch a loved one suffer in pain needlessly. The analogy to the labor and delivery cases is clear in the hospital or nursing home setting, where the patient is obviously suffering. The doctrine is arguably applicable to any instances of intractable pain and poor management of it in ex treme cases.

Informed consent. Can a plaintiff argue that the informed-consent doctrine re quires that pain management be disclosed as an alternative to no treatment for intractable pain, even if the physician does not want to use opioids or otherwise manage the pain? Such an obligation is connected to the duty to refer.

Physicians are required to disclose alternative methods of treatment—along with their risks and consequences, and their probability of success—if the medical community generally acknowledges them as feasible.33 Some courts have held that alternatives should be disclosed even if they are more hazardous34 or the physician is not capable of performing the procedure or evaluating its risk.35 The threshold requirement is only that the alternative treatment be considered to be within the standard of care. Such alternatives might include access to pain control programs or other specialty services. Currently, at least some physicians prescribe opioids to manage pain.

When considering whether informed consent is needed, courts have construed "treatment" broadly to include diagnostic options and choice of hospital in which a procedure will be performed. Physicians must disclose diagnostic procedures that might help patients make informed decisions about treatment. For example, in Martin v. Richards, the physicians failed to inform the parents of a minor patient that a CT scan was available to detect intracranial bleeding and that the hospital lacked a neurosurgeon to operate on the child. The court held that it was for the jury to decide whether these failures caused the patient's brain damage.36

In Johnson v. Kokemoor, the court in cluded within a surgeon's duty of disclosure an obligation to inform the patient that experienced providers in a nearby clinical setting would have been able to perform the operation at a lower risk.37

The corresponding pain management issue is whether a physician should be sufficiently aware of choices—hospices for cancer patients, programs for those who suffer nonmalignant pain, or other physicians who are trained in modern pain management techniquesbe able to inform a patient of his or her treatment options. It does not seem a stretch to require a duty to inform patients in such circumstances that a full range of pain therapies is available. Failure to discuss pain management options and the possibility of referral or transfer might well appear as a count in the patient's malpractice complaint.

Proving damages

Present and future pain and suffering are legitimate components of a damages claim by a plaintiff in a malpractice suit. As one commentator writes, "The pain for which recovery is allowed includes virtually any form of conscious suffering, both emotional and physical."38 This can even include the pain of recalling past pain.39 Experts can testify about such pain, as can the plaintiff. Inferences about the degree of pain can also be drawn from the nature of the plaintiff's condition and the kind of medical treatment needed.

In the typical tort case, the court is willing to instruct the jury on pain and suffering when the plaintiff has suffered tangible injury caused by the defendant. Pain management failures are complicated: The physician or provider is responsible not for the patient's condition, but for the mismanagement of the pain that is a by-product and symptom of an underlying disease or injury. In such cases, pain is the only component of damages. The loss of enjoyment of life, as a corollary of the pain, may be allowed as a separate component. The plaintiff's reactions to the pain and his or her sense of loss as a result may also be compensable.40

Sending a message

Pain management is evolving as critics of patient care clamor for improvement. Progress, however, has been surprisingly slow—the result of physicians' continued uncertainty about appropriate opioid use, lack of institutional attention to pain management, and poor education in medical schools.

A convergence of forces is now building pressure on health care providers to incorporate pain management into their practices. First, the JCAHO's new statement of Pain Assessment and Management establishes a new standard of pain as the "fifth vital sign,"which hospitals must monitor and treat to retain their accreditation. Second, clinical practice guidelines for pain management are now readily available on the Internet for easy access by health care providers. Perhaps medical school education will soon teach contemporary pain management.

The threat of tort liability can add to this pressure on the medical profession, amplifying this message: Patients suffer from too much pain, and it is time for our doctors' offices, hospitals, and nursing homes to reduce this suffering.

Notes

1. See R.M. Marks & E.J. Sachar, Undertreatment of Medical Inpatients with Narcotic Analgesics, 78 ANNALS INTERNAL MED. 173 (1973).

2. See A.M. Martino, In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do? 26 J. L. MED. & ETHICS 332, 336 (1998); J.P. Morgan, American Opiophobia: Customary Underutilization of Opioid Analgesics, in 11 ADVANCES IN PAIN RESEARCH & THERAPY 181-82 (C.S. Hill Jr. & W.S. Fields, eds. 1989).

3. For example, it is not true that sustained use of opioids inevitably addicts a patient; that a maximum dose for opioid use exists; or that a large dose of opioids invariably depresses respiration. See generally C.S. Hill Jr., When Will Adequate Pain Treatment Be the Norm? 274 JAMA 1881 (1995).

4. A.H. Lebovits et al., Pain Knowledge and Attitudes of Health Care Providers: Practice Characteristic Differences, 13 CLINICAL J. PAIN 237-43 (1997).

5. C.S. Hill Jr., The Barriers to Adequate Pain Management with Opioid Analgesics, SEMINARS IN ONCOLOGY, Apr. 1993, at 1.

6. D.E. Joranson & A.M. Gilson, Regulatory Barriers to Pain Management, SEMINARS IN ONCOLOGY NURSING, May 1998, at 158; Hill, id.; D.E. Weissman, Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulations on Cancer Pain Management, SEMINARS IN ONCOLOGY, Apr. 1993, at 53.

7. C.S. Cleeland, Documenting Barriers to Cancer Pain Management, in CURRENT AND EMERGING ISSUES IN CANCER PAIN: RESEARCH AND PRACTICE 321, 325-27 (C. Richard Chapman & Kathleen M. Foley, eds. 1993); J.J. Fins, Public Attitudes About Pain and Analgesics: Clinical Implications, J. PAIN & SYMPTOM MGMT. 169 (1997).

8. See Dianne E. Hoffmann, Pain Management and Palliative Care in the Era of Managed Care: Issues for Health Insurers, J. L. MED. & ETHICS 267 (1998).

9. See, e.g., N.I. Cherney & R. Catane, Professional Negligence in the Management of Cancer Pain: A Case for Urgent Reforms, 76 CANCER 2181 (1995).

10. AM. MED. ASS'N, CODE OF MED. ETHICS E-2.20 (1996).

11. AM. NURSES ASS'N, COMPENDIUM OF POSITION STATEMENTS ON THE NURSE'S ROLE IN END-OF-LIFE-DECISIONS 7 (1992) (including the Position Statement on Promotion of Comfort and Relief of Pain in Dying Patients).

12. See, e.g., AGENCY FOR HEALTHCARE POLICY & RESEARCH, U.S. DEP'T OF HEALTH & HUMAN SERVS., PUB. NO. 92-0032, ACUTE PAIN MANAGEMENT: OPERATIVE OR MEDICAL PROCEDURES AND TRAUMA: CLINICAL PRACTICE GUIDELINES (1992); AGENCY FOR HEALTHCARE POLICY & RESEARCH, U.S. DEP'T OF HEALTH & HUMAN SERVS., PUB. NO. 94-0592, MANAGEMENT OF CANCER PAIN: CLINICAL PRACTICE GUIDELINE (1994).

13. W.S. Blau et al., Organization of Hospital-Based Acute Pain Management Programs, 92 HOSPITAL-BASED PAIN MANAGEMENT 465, 466 (1999).

14. 385 S.E.2d 651, 652 (Ga. 1989).

15. See, e.g., S.H. Wanzer et al., The Physician's Responsibility Towards Hopelessly Ill Patients: A Second Look, 320 NEW ENG. J. MED. 844, 847 (1989) ("To allow a patient to experience unbearable pain or suffering is unethical medical practice."); E.D. Pellegrino, Emerging Ethical Issues in Palliative Care, 279 JAMA 1521 (1998) ("Not to relieve pain optimally is tantamount to moral and legal malpractice.").

16. 543 N.W.2d 265, 271-72 (Wis. 1996).

17. R.S. Shapiro, Health Care Providers' Liability Exposure for Inappropriate Pain Management, 24 J. L. MED. & ETHICS 360 (1996).

18. 736 So. 2d 366 (La. Ct. App. 1999).

19. MANAGED CARE AND PAIN 30 (S.D. Lande & R.J. Kulich, eds. 2000).

20. Shapiro, supra note 17, at 361.

21. See Corley v. State, 749 So. 2d 926 (La. Ct. App. 1999); Johnson ex rel. Adler v. Kokemoor, 545 N.W.2d 495, 508-09 (Wis. 1996).

22. 713 N.E.2d 33 (Ohio Ct. App. 1998).

23. See Kokemoor, 545 N.W. 495.

24. 453 N.W.2d 634 (Iowa 1990).

25. Id. at 639 (emphasis added).

26. Id. at 640.

27. 385 N.W.2d 732 (Mich. Ct. App. 1986).

28. Id. at 735.

29. Id. at 738.

30. See, e.g., Frame v. Kothari, 515 A.2d 810 (N.J. Super. Ct. Law. Div. 1985); Ochoa v. Superior Ct., 703 P.2d 1 (Cal. 1985).

31. See, e.g., Smelko ex rel. Smelko v. Brinton, 740 P.2d 591 (Kan. 1987); but see Martinez v. Long Island Jewish Hillside Med. Ctr., 512 N.E.2d 538 (N.Y. 1987).

32. 514 S.E.2d 355 (Va. 1999).

33. See, e.g., Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993); Teilhaber v. Greene, 727 A.2d 518 (N.J. Super. Ct. App. Div. 1999).

34. Gemme v. Goldberg, 626 A.2d 318, 326 (Conn. App. Ct. 1993).

35. See Holt v. Nelson, 523 P.2d 211 (Wash. Ct. App. 1974).

36. 500 N.W.2d 691 (Wis. Ct. App. 1993).

37. See Kokemoor, 545 N.W.2d 495.

38. DAN B. DOBBS, LAW OF TORTS 1050 (2000).

39. Sears, Roebuck & Co. v. Hartley, 160 F.2d 1019 (9th Cir. 1947).

40. DOBBS, supra note 387, at 1052; see also 2 DAN B. DOBBS, LAW OF REMEDIES: DAMAGES, EQUITY, RESTITUTION §8.1(4) (2d ed. 1993).

Barry R. Furrow is director of the Health Law Institute at the Widener University School of Law in Wilmington, Delaware. A longer version of this article was originally published in the Spring 2001 issue of the Journal of Law, Medicine & Ethics. © American Society of Law, Medicine & Ethics. The author acknowledges a grant from the Mayday Fund to support the research and writing of this article.