Special Report
Inadequate pain management: A growing liability risk
By William M. McDonnell, MD, JD, Assistant Professor, Pediatric Emergency Medicine, Adjunct Professor, S.J. Quinney College of Law, University of Utah, Salt Lake City
The appropriate management of pain by medical professionals is becoming an increasingly popular topic of discussion and litigation. More than 30 years ago, the undertreatment of pain in American hospitals was described in an influential article in Annals of Internal Medicine. Since that time, numerous additional studies in the medical literature have bolstered the charge that health care providers, including those in emergency departments (EDs), often fail to adequately address patients' pain. More recently, legal commentators joined in the discussion, often advocating for medical malpractice liability in cases of inadequate pain control. With the popular press now giving further attention to this topic, ED physicians and risk managers should use this opportunity to review their pain control practices from a risk management standpoint.
Prior to the 1990s, the legal risk to physicians for providing inadequate pain control was minimal. However, the discussions in the academic literature were joined by several cases in the previous decade suggesting that medical liability in cases of substandard pain management may be inevitable. Two likely vehicles for such liability are medical malpractice and the Emergency Medical Treatment and Active Labor Act (EMTALA).
Malpractice Liability
Potential malpractice liability arising from inadequate pain control in the ED is still somewhat ill-defined, but is unquestionably a growing risk for medical practitioners. Historically, malpractice litigation addressed pain solely in the context of determining damages for pain and suffering, and then only after first establishing some other breach of professional standards. However, in Estate of Henry James v. Hillhaven Corporation, No. 89 CVS 64 (N.C. Super Ct., Jan. 15, 1991), a jury returned a $15 million verdict against a nursing home and its nursing staff for failure to provide appropriate pain management. The nursing staff withheld pain medications previously prescribed for a terminal patient with metastatic prostate cancer due to concerns that he was "addicted to morphine." The Court noted that the case did not rest on any claims of wrongful death, but rather was based solely on the allegation that the defendants "caused increased pain and suffering."
In another case involving claims of inappropriate pain management, a California jury in Bergman v. Wing Chin, MD and Eden Medical Center, No. H205732-1 (Cal App. Dept Super Ct., Feb. 16, 1999) returned a verdict for $1.5 million against a physician for failure to provide adequate pain control to a terminally ill patient. The case had been brought under California's elder abuse statute rather than as a malpractice action, because under California law, a patient's claim for pain and suffering in a medical malpractice action ends at death. In finding against the physician, the jury determined that his care in managing the patient's pain was "grossly negligent and/or reckless." Another case was modeled after Bergman in Tomlinson v. Bayberry Care Center, No. C-02-00120 (Contra Costa County Super Ct., 2002), in which the family of a cancer patient brought an action under the California elder abuse statute against a hospital, nursing home, and three physicians, claiming inadequate pain control during the final weeks of the patient's life. The case was settled prior to trial.
The appellate courts have not reviewed the James and Bergman cases. For the most part, judicial discussions regarding the adequacy of pain management have been limited to cases involving issues of autonomy and medical decision making, particularly in relation to terminal illness and in end-of-life settings. However, some of those discussions have suggested that malpractice cases for inadequate pain management may be permitted in the future. For example, in State v. Naramore, 965 P.2d 211 (Kan. App. 1998), the Kansas Court of Appeals refused to uphold the murder conviction of a physician who administered opiates to a terminally ill patient, recognizing the conflicting concerns and pressures on the medical decision-making process, and noting that expert testimony had suggested that "inadequate control of pain due to substandard treatment may constitute medical negligence." In State v. McAfee, 385 S.E.2d 651 (Ga. 1989), the Georgia Supreme Court affirmed the right of a ventilator-dependent quadriplegic to refuse medical treatment and remove his ventilator, and held that he was also entitled to adequate pain control at the time his respiratory support was discontinued.
Physicians, ethicists, and legal academics increasingly are concluding that the failure of a physician to address a patient's pain in accordance with generally accepted practice standards constitutes medical negligence. With a growing research database and increased attention to the topic throughout the medical community, appropriate pain management practices are becoming more clearly defined. Numerous regulatory and oversight organizations have developed policy statements and practice guidelines regarding pain management. As these objective practice standards for pain management emerge, the courts will be better able to use medical malpractice actions to hold health care providers to a standard of "appropriate" pain management.
EMTALA Liability
EMTALA, the federal law which requires evaluation and stabilization of all emergency medical conditions prior to discharge of the patient from the ED, provides another potential claim against physicians and hospitals who fail to appropriately address pain issues in the ED. EMTALA defines "emergency medical condition" 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 placing the health of the individual … in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part." This statutory language makes it clear that even in the absence of additional complaints, severe pain alone may be a sufficient indicator of an underlying emergency condition to require appropriate evaluation and stabilization.
Some have even argued, albeit unsuccessfully to date, that pain itself can constitute the emergency condition; therefore, failure to adequately treat pain prior to discharge constitutes an EMTALA violation. In Watts v. Hermann Hospital, 962 S.W.2d 102 (Tex. App-Hous. [1 Dist.] 1997), a patient with an above-the-knee amputation claimed that his hospital discharge following treatment for a wound infection, but without a surgical stump revision, left him in chronic, severe pain. He argued that the defendant hospital's failure to treat his pain with a stump revision procedure constituted a failure to stabilize his emergency medical condition and was a violation of EMTALA. The Texas Court of Appeals rejected the patient's claim on the facts of the case, finding that "to the extent that appellants are contending that [the patient's] pain was the emergency medical condition, his pain was being managed with painkillers." The Court's language might be interpreted as supporting an argument that other circumstances, in which severe pain was not being managed appropriately, could support an EMTALA claim. If this argument gains traction in the future, failure to stabilize pain in the ED might subject the physician and hospital to a range of EMTALA penalties, including civil monetary penalties of $50,000 per violation, expulsion from the Medicare/ Medicaid program, and, against the hospital only, personal injury damages.
Risk Management
Establishing an effective systems approach to pain management in the ED can improve patient care while reducing liability risks. A number of resources are available to assist with the development of a comprehensive pain management program, but virtually all consistently agree that such a program should formalize the processes of pain assessment, treatment, patient and family communication, informed consent, and program self-assessment. Practice guidelines and standards are available from a number of regulatory, oversight, and licensing organizations.
In addition to establishing a formal pain management program, additional strategies may be helpful in limiting liability. Physician training in pain management may be helpful in changing physician attitudes toward pain control. In the Bergman case, the defendant physician testified that he had taken only one hour of continuing medical education in pain management over the preceding 30 years of practice. The family of the decedent reported that they brought their case only after the California Medical Board declined to intervene, and the decedent's daughter stated, "I wanted [the defendant] to change his ways so other people wouldn't have to go through this." Subsequent to the Bergman case, the California legislature began requiring that physicians obtain continuing medical education related to pain management.
In the event of a later dispute or litigation, thorough documentation will provide evidence of compliance with the pain management program, and that the pain management was clinically appropriate. Particularly in cases involving significant psychosocial stressors, the pain management program may call for alternatives to analgesic medications, such as mental health care, social services, primary care, and drug addiction treatment programs. Comprehensive documentation, including the objective findings on which the medical decision-making was based, may minimize subsequent disputes over a decision to avoid or limit analgesic medications.
Conclusion
Most health care professionals have come to view management of pain as a vital part of the treatment of acute and chronic illness and injury. It is to be anticipated that the legal system will join in that view, and will hold emergency physicians to the prevailing standard of practice. As with any other aspect of medical care, the best protection from liability will include meeting the appropriate standard of care, providing open and honest communication with patients and their families about that care, and careful documentation.
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