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Protecting Pain Physicians from Legal Challenges: Part 2

Practice recommendations to avoid malpractice resulting in deaths, complications, or undertreatment together with illustrative case examples.
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Dr. Tennant has practiced ambulatory pain management with opioids since 1975 and has reviewed over 50 cases of malpractice suits brought against physicians and hospitals—sometimes in the role of expert witness. This article presents his perspective on how pain physicians can learn from others’ mistakes and protect against legal challenges to their practice.

The landscape for risk in pain treatment is rapidly changing. Heretofore, physicians have been reluctant to prescribe opioids for chronic pain treatment due to fear of prosecution by State Medical Boards and the Federal Drug Enforcement Agency (DEA). Due to pressure from a public that demands opioid drugs for pain treatment, most states, however, have now adopted laws, regulations, and guidelines that allow a physician to treat chronic pain without fear of retribution. Risk of malpractice is, however, replacing the risk of government prosecution as the physician’s cross-to-bear. In this decade, a variety of mal-practice suits have befallen physicians who have attempted to treat chronic pain with opioid drugs. In the last issue of Practical Pain Management, we focused on the problem of sudden, unexpected deaths in pain patients and the misinterpretation of their opioid blood levels. In this second article we wish to highlight other legal challenges that have come to our attention. In addition to unexpected deaths we are aware of legal challenges involving undertreatment, withdrawal from opioids while pain is still present, and complications of severe chronic pain (see Table 1). Not discussed here are legal challenges that may result from billing practices or invasive interventions.

A ten-point malpractice-prevention program is presented to avoid risk and protect against legal challenges. Selected cases are then presented to emphasize that all could have been prevented in a medical practice.

Ten-point Malpractice Prevention Plan

This plan is designed for the busy practitioner who may have limited time to spend with each patient (see Table 2). Futhermore, it doesn’t depend upon expensive laboratory tests, consultations, or large office staff. Due to the high pre-valence of chronic pain in the general population, it is well recognized that chronic pain treatment with opioid drugs must be done. Treatment must necessarily take place in busy practice settings throughout rural and urban areas of America. Put another way, this ten-point plan can be done in a two-person office, and the author believes that the implementation of these points either prevented or would have prevented all the malpractice suits personally reviewed.

Table 1. Malpractice
Challenges for Physicians
  1. Sudden, unexpected death in a pain patient.
  2. Undertreatment or opioid withdrawal and failure to prevent pain flares.
  3. Complications of severe, chronic pain such as dementia, infection, or cardiovascular events.
  • Point 1. Follow The National Federation of State Medical Board Guidelines. Chronic pain treatment is about the only condition that has published national guidelines. To avoid legal challenges, the pain practitioner must righteously follow them simply because they have become the universal standard. Although widely published and endorsed by essentially all professional pain organizations, they are shown here in brief, tabular form (see Table 3). Every MD should be able to articulate the essence of these guidelines and practice them faithfully.

  • Point 2. Put a Written Diagnosis in the Chart. Many physicians who treat pain and prescribe opioids maintain voluminous records and eloquently dictate observations and treatments. The physicians chart may not, however, list a formal diagnosis. Without a formal, written diagnosis an outside observer or reviewer may get the idea that the doctor is simply following the patient for a lucrative fee or the doctor didn’t care enough to do a real evaluation. Worse, an outside reviewer may conclude that the patient doesn’t truly have pain.

    The written diagnosis must have two components:

    1. Pain Type
    2. Underlying Cause of Pain

    The pain can be described by the following terms:

    1. Chronic Pain– Persistent, Constant, or Intermittent
    2. Intractable Pain
    3. Chronic Pain Syndrome

    Once the pain is labeled, simply write “secondary to” the underlying cause. Here are some common examples:

    1. Chronic Pain–Intermittent— Secondary to Osteoarthritis of Lower Extremities
    2. Intractable Pain— Secondary to Fibromyalgia
    3. Chronic Pain Syndrome— Secondary to Degenerative Spine Disease

    The term “chronic pain syndrome” appears to be a term that is catching on. Many physicians like this term because it encompasses not only the pain, per se, but the panorama of complications and manifestations that are part and parcel of chronic pain.

  • Point 3. State Reason for Opioids on Your Prescriptions. There is a key point that is poorly understood about the necessity to place a written, pain diagnosis on the chart and on prescriptions. Opioids are only approved by the United States Food and Drug Administration for treatment of pain. If a pain diagnosis is not in the patient’s chart and noted on prescriptions, outside observers, including pharmacists, may believe that you are prescribing for an addict or for abuse purposes.

    Examples for Prescriptions:

    1. Oxymorphone 40mg, extended release — one at 7:00am and one at 7:00pm for intractable pain
    2. Hydromorphone 4mg — one every 4 to 6 hours as needed for breakthrough pain
  • Point 4. Educate Patient and Family. Remember the first tenet of malpractice and is almost always the situation with legal challenges involving pain treatment: The patient doesn’t sue; the family does.

    Patients who require long-term opioid therapy and their closest family members need to be educated about the following:

    1. Severe chronic pain is a disease with its own life-shortening complications;
    2. No other option but opioids may be viable;
    3. Medication must be taken as prescribed;
    4. When medication is properly prescribed and used it does not produce sedation or impair driving, working, and activities of daily living.
    5. Many pain treatments and medications are “off-label.”

    Patients and families must be educated as to the complications of pain, per se, or they may blame the physician and/or the prescribed medication as the cause of the problem. Any means of education is acceptable: clinic attendance, written materials, e-mail, or telephone. In particular, patients and families need to know about the recent studies which show that chronic pan may produce cerebral atrophy and its attendant loss of intellect or dementia. Chronic pan causes excess sympathetic, autonomic discharge and hormone abnormalities that may result in elevated cardiac and stroke risk, as well as severe infections.

Last updated on: December 27, 2011
First published on: April 1, 2008