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Balancing Pain Management and Professional Risk

A discussion on how to provide adequate pain relief while avoiding potential legal complications in prescribing controlled substances.
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In the past, practitioners were grateful if they were just compensated for their services within a reasonable period of time by payers. Their concerns then shifted toward medical malpractice prevention techniques and strategies for avoiding billing errors leading to audits by federal authorities. Now, practitioners must seriously ask themselves if they face criminal prosecution, possible incarceration and ruin if they even prescribe controlled substances for the management of pain. One physician recently described the current practice environment as “see a patient and go to jail.” Lost in this sentiment was the fate of patients suffering with chronic intractable pain.

Historical Perspective

Newspaper headlines for the past two years have left most prescribing pain practitioners wondering what they are supposed to do to practice effective pain management in light of the new anti-opioid hysteria. A sampling of these headlines includes: 200 Indicted Over Illegal Trade in Painkiller; A Painkiller’s Double Life as an Illegal Street Drug; Doctor Arrested on Fifth Manslaughter Charge; Doctor Faces 165 Years In Drug-Deaths Conviction; Doctor Guilty Of Manslaughter; Drug Deaths in Florida Skyrocketing; More Docs Face Murder Charges In Overdose Deaths; Overdoses of Painkiller Are Linked to 282 Deaths; Prescription Drug Abuse High In Rural Maine; Prescription Drug Fraud Steadily Rising; Use of Painkiller Raises Questions. These headlines stand in sharp contrast to the public pro-opioid position statements of the American Pain Society (APS) and the American Academy of Pain Medicine (AAPM),.1 U.S. Federation of State Medical Boards,.2 U.S. Drug Enforcement Administration3 and others.

The rationale for using controlled-release (i.e. fentanyl, morphine and oxycodone) or long half-lived medications (i.e. methadone) has always been better blood level stability with more consistent, sustained pain control—while permitting patients more predictability in their lives from one day to the next. The controlled-release medications have been found to improve sleep, decrease vomiting, give better control pain, and potentially improve rehabilitation outcomes.4 While long-half lived medications are more toxic in overdoses, they can still be used effectively by many patients and are considerably less expensive for those with financial limitations. However, what started as a rational attempt to ease the pain of millions of sufferers has been marred by substance abuse involving prescription opioids and consequently has set the field of pain management back a good number of years.

The same “when-are-the-use-of-opioids-ever-justified” questions are back now with a frightening draconian twist. If pain practitioners give controlled substances to the “wrong patients” they may risk their reputations, careers, and freedom.

In the 1980s, pain practitioners offered opioids only for the short-term management of post-operative pain and pain associated with terminal illness. Most comfortably agreed that pain should be addressed with opioid analgesics after surgery or trauma. Further, no one disputed that dying patients should have their pain eased and the quality of the remainder of their lives improved. Addiction risks were considered trivial for these clinical circumstances. For those who had “non-malignant” chronic pain, however, only non-opioid medications, behavioral, and physical modality therapies were available despite the reduced functioning of these patients.

By the late 1980s and early 1990s pain management conferences began to offer scientific sessions, keynote addresses and even debates on the emerging role of opioid therapy for non-cancer chronic pain management. In late 1996, the American Pain Society and the American Academy of Pain Medicine proposed rational opioid therapy guidelines to help practitioners better manage the pain of their patients (these guidelines were endorsed by the Board of Directors of the American Academy of Pain Management in 1998.)1 In 1998, the U.S. Federation of State Medical Boards proposed national guidelines to help all U.S. state medical boards craft reasonable public policy concerning opioid therapy.2 These actions collectively appeared very helpful, balanced, and offered practitioners the potential to widen the range of therapeutic offerings for their patients suffering with chronic pain. Based upon the Drug Abuse Warning Network (DAWN) data through December 1996 — demonstrating that increased opioid prescribing was not associated with higher ER events.5 — published articles and lectures by many notable pain specialists gave comfort to most pain practitioners and non-pain practitioners alike, and encouraged them to stop worrying so much about prescribing opioids and start focusing on chronic pain relief.

Lost in the media hype was the fact that there were real patients—suffering from real pain—for which no other therapies had been effective other than opioid medications.

Coupled with the widely disseminated information that opioid use was clinically safe — as long as guidelines were followed — were two troubling legal actions taken against U.S. physicians for their under-treatment of pain in certain patients. In 1999, Oregon physician Dr. Paul Bilder was disciplined by the Oregon Board of Medical Examiners for failing to relieve pain in several of his patients..6 In 2001, California physician Dr. Wing Chin was sued by the estate of his former patient, William Bergman, for elder abuse after failing to relieve the pain associated with end stage lung cancer. These two actions involved allegations of under-treatment of pain and cost Bilder his ability to practice medicine without ongoing supervision and cost Chin $1.5 million in the initial jury award (subsequently reduced by the trial judge to $250,000)..7 With these two high profile cases, American physicians were put on notice that they would be in serious trouble for not managing pain effectively.

The 2001 Joint Commission of Accreditation of Hospitals Organization (JCAHO) pain-related standards of care now require that pain reported by patients must be treated seriously by practitioners; pain must be properly assessed and effectively managed..8,9 Yet recent changes in California law now effectively give patients the final decision-making role about what therapies will be used for the management of their pain. These patients will not even have to try alternatives to opioids under the provisions of the California Pain Patients Bill of Rights;.10 they will only have to receive proper informed consent before making their decision in selecting opioids as a preferred modality.

Last updated on: January 6, 2012
First published on: March 1, 2003