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8 Articles in Volume 5, Issue #6
Botox Treatment of Chronic Refractory Low Back Pain
DEA Enforcement versus Pain Practice
Group Psychotherapy for Chronic Pain Patients
How Expert Testimony Distorts the Standard of Care
Neurostimulation in Chronic Pain Patients
Physiological Consequences of Guided Imagery
The Role of Tertiary Gain in Pain Disability
Treating Muscular Dysfunction of Upper Limbs

The Role of Tertiary Gain in Pain Disability

Tertiary gain—defined as those gains sought or attained from a patient's illness by someone other than the patient—can be a significant perpetuating factor in illness and disability.

Some readers may be familiar with the concept of secondary gain, which has received increasing attention as a perpetuating factor in illness and pain disability.1-4 First conceptualized by Sigmund Freud, secondary gain refers to both the internal (i.e., intrapsychic) and external advantages attained by a sick person as a consequence of illness.5 Although originally conceived as an unconscious process, contemporary thinking is that secondary gains may be consciously and/or unconsciously motivated.3,5 In fact, there has been a recent tendency to incorrectly equate secondary gain with motivation for financial compensation and malingering.1-3,6 “Patient X has a secondary gain agenda” has become shorthand for the belief that the person is deceitfully trying to “game the system.” The authors’ previous work has focused on further elucidating the concept of secondary gain, and exploring complex secondary gain agendas, which are barriers to improved health and function. 3 An example demonstrates how secondary gain can serve as a perpetuating factor in illness and disability. An injured worker dislikes his supervisor because of previous experiences with this supervisor, and because the legitimacy of his injury is now being questioned. The worker’s desire to punish his supervisor (a secondary gain) may lead him to exaggerate symptoms of pain and disability, resulting in a more chronic and severe illness presentation, and perhaps adoption of the “sick role.”

Although the concept of secondary gain has received a great deal of attention, most are less familiar with tertiary gain, which can also be a significant perpetuating factor in illness and disability. Dansak7 first introduced the concept of tertiary gain, which he defined as those gains sought or attained from a patient’s illness by someone other than the patient, usually a family member. For example, the wife of an ill man may use her husband’s illness to gain more power in their relationship. Before his illness, he controlled the finances and did not allow her to work outside the home. After his illness develops, she takes over the finances, and takes a job to stabilize their financial status. Comfortable with this new arrangement-including her increased power in the relationship-she may consciously and/or unconsciously resist her husband’s attempts to regain his health and functional abilities.

It should be noted that illness and disability are also associated with ‘tertiary loss,’ especially among affected family members. The concept of tertiary loss, proposed by Kwan and colleagues,8 is defined as the limitations or losses experienced by individuals other than the patient, as a result of the patient’s illness (as opposed to secondary loss, which refers to the limitation or losses directly experienced by the ill individual). A significant amount of research has demonstrated that the patient’s close family members often experience poorer psychological well-being, decreased relationship quality with the patient, caregiver burden, and worse physical health.9 A specific example of tertiary loss is financial difficulties experienced by the patient’s family as a consequence of the illness. Common tertiary losses are listed in Table 1.

While secondary gain is seen as a perpetuating factor in illness and disability, tertiary gain is best conceptualized as a precipitating and/or a perpetuating factor. For example, a person who presents with benign and self-limiting symptoms, if exposed to an “overly solicitious spouse, “ or a “rule-out” physician, may eventually develop a chronic disability syndrome. These are examples of tertiary gain precipitating illness (perhaps a desire to control a wandering spouse in the first case; perhaps decreasing physician anxiety about being sued by “making sure” in the second case). For a person who is already ill, such as a person with chronic low back pain, tertiary gain may function to perpetuate disability. For example, a physician motivated by financial gain, as well as a desire to avoid conflicts with patients, may discourage appropriate levels of physical activity and over-prescribe narcotic medications.

As discussed above, secondary gain has often been equated with malingering. However, Kwan and colleagues8 point out that secondary gain is a neutral phenomenon, available and received by virtually all of those who are ill. Thus, it arises naturally out of the “sick role,” and should only be considered problematic when the desire for secondary gain is the primary motivation underlying and dictating one’s behavior. Moreover, Kwan and colleagues8 argue that tertiary gain is also a neutral phenomenon, arising from the social construct of the “caregiver role.” Several advantages accrue to caretakers of the ill and disabled, and may include monetary payment for services, special status and recognition in the community as a caregiver, and excuse from one’s responsibilities to some extent while helping the ill person. Tertiary gain becomes problematic when it is creates conflicts of interest in the caregiver between the personal interests of the caregiver and the interests of the ill person. If personal interests are put ahead of care giving duties, then the contract the caregiver has with society is breached.

The pursuit of tertiary gain may be consciously and/or unconsciously motivated.7 Tertiary losses typically outweigh tertiary gains, especially among family members, leading to attempts to help the patient become well. However, in a minority of cases, tertiary gains outweigh losses, resulting in the caretaker encouraging (i.e., reinforcing) continued illness and disability. The authors3 have previously proposed that secondary gain should be considered problematic when the ill person is more motivated to pursue secondary gain agendas than the agenda of improving health and function. Similarly, it is proposed that tertiary gain be considered malignant when the “caregiver” is motivated to pursue tertiary gain at the expense of what is in the best interest of the ill person, including what is most likely to help them recover or function at as high a level as possible.

Table 1. Family Member/Caregiver Tertiary Losses
  • Increased responsibilities (i.e., both at home, and perhaps having to work in place of the ill individual to maintain the family income)
  • Emotional effect of experiencing the suffering of a loved one
  • Disturbance or discord (emotional or physical) within the relationship (e.g., loss of enjoyable shared activities, diminished sexual relationship)
  • Guilt created by the ill individual, which obligates the caregiver to remain in an already undesirable relationship
  • Stigmatization of the family member in association with the ill individual
  • Financial hardship

Tertiary Gain and the Family

Dansak,7 in his seminal paper on tertiary gain, describes the “Gaslight Phenomenon,” in which family members plot to create the impression of illness in a person in order to oust the individual from the household, as a means of acquiring personal and/or financial gain (e.g., the spouse could marry a lover, gain control of property, or a family could avoid caring for a demented relative). A more benign form of tertiary gain accruing to family members is much more widespread although, to the authors’ knowledge, it has not previously been conceptualized as a tertiary gain phenomenon. It is the “overly solicitous spouse.”10,11 Such spouses essentially provide their ill or disabled partner with too much help and concern, thereby reinforcing illness and disability behaviors and self-perceptions. Over-protectiveness by spouses, which may be desirable at early or crisis stages of illness,12 has been linked to negative outcomes, including increased dependency, lowered competence, and greater depression.12,13 Overly solicitous spouses may be motivated by a variety of tertiary gains, including several that are quite altruistic, such as a strong need or desire to nurture and care for another person or a desire for increased emotional intimacy. Over-protecting one’s spouse may also reduce a person’s anxiety about the spouse’s health. For example, if a woman is injured at work by a malfunctioning machine, her husband may feel anxious about her returning there and, consciously or unconsciously, discourage her from returning by reinforcing sick-role behavior. A less benign tertiary gain is a spouse’s desire to have her partner dependent on her (perhaps thereby increasing her power in the relationship). A spouse or partner may receive multiple tertiary gains. For example a husband may feel altruistic in caring for his ill wife, and also gain more control in their relationship, as well as receive esteem in the eyes of others for being an unselfish caretaker. In summary, a variety of tertiary gains may motivate the over-protective behavior of “overly solicitous spouses,” with the major commonality being reinforcement of sick-role behavior.

Although the authors have not seen this discussed in the literature as a tertiary gain phenomenon, there may also be tertiary gains for the family “system.” It is well-recognized that some families can achieve internal stability and meet the needs of their members only when one or more individuals is perceived as being sick.14 The classic example is provided by Minuchin and colleagues15 who observed a repetitive pattern in such “psychosomatic families,” in which unresolved marital conflict erupts into an argument between the parents of adolescents having remitting and relapsing medical conditions such as asthma. In response to the stress of the argument, the adolescent becomes acutely ill. This stops the parents from fighting and focuses their attention on the care of the sick adolescent. In short, marital tension is regulated by the adolescent’s illness, thus serving a function for the family system. Looked at from a different purpose, the adolescent’s illness serves as a tertiary gain for the family system

Similar stabilizing dynamics sometimes operate in couples, in which marital difficulties, often seen as a consequence of illness, may actually precede the onset of a chronic illness. For such couples, chronic illness serves as a “scapegoat” toward which the couple direct their energies, in the process avoiding underlying marital dysfunction, and thus stabilizing the relationship. This has been referred to as “sick-role homeostasis.”16

In a similar vein, there may be alignment of secondary and tertiary gain agendas. For example, the spouse, or “associate victim,” may join forces with the “patient victim” to blame outside sources for the illness (e.g., accident, poor health care, unsafe work conditions). This focuses the anger and frustration of both on a common enemy in a fight for cure or compensation, relieving them of the responsibility of working toward improved health.17 In this way, the spouse becomes a “partner in pain.”

Awareness of secondary gains and losses, as well as tertiary gains and losses, assists in understanding a patient’s behavior. As first proposed by Bayer,18 and elaborated on by Fishbain,1 patient behavior can be thought of in terms of an ‘economy of gains and losses.’ Fishbain presents this as the theoretical problem of understanding how, when balanced against secondary losses, secondary gains can reinforce the continuation of complaints. He invokes unconscious processes to explain this phenomenon. Kwan and Friel19 approach the economy of gains and losses differently. While arguing that psychological issues are prominent, they suggest that these issues may be unconscious, preconscious, or conscious. They also highlight the importance of social factors in understanding why some patients seek secondary gain despite significant secondary losses. They argue that the sick role offers a solution to the patient’s problem by changing a socially unacceptable psychological disorder to a socially acceptable disability. Thus, they assume that many who assume the sick role are primarily psychologically distressed, but unwilling (or unable) to acknowledge this due to existing social stigma against mental illness. One difficulty with this formulation is that the sick role is not limited to “physical” illness, but also applies to “psychological” illness. In fact, Freud did not limit the concept of secondary gain to those with physical illnesses (or conversion reactions), but instead applied it to neurotic (i.e., psychological) illness in general.

Kwan and colleagues8 also explore what they describe as the parallel ‘economy of tertiary gains and losses.’ Here, the economy applies to the caretaker, whether family member, doctor, or other interested party. Like the economy described above, losses are usually more motivating than gains, resulting in encouragement and reinforcement of improved health. However, as above, in a minority of cases, gains outweigh losses, resulting in the caretaker encouraging (i.e., reinforcing) continued disability in the patient.

It is the authors’ contention that awareness of possible secondary gains and losses, as well as possible tertiary gains or losses, is indispensable in the effective management of illnesses in a medicolegal context, and may also be valuable in the management of chronic illness in general whenever abnormal or excessive illness behaviors are observed or suspected. A variety of other tertiary gains are available to family members or the family system. These are summarized in Table 2. This list is not meant to be exhaustive.

Family issues in chronic pain and illness have been explored and discussed by a number of researchers and clinicians.12,20-24 In health psychology in general, research has demonstrated that marital and family relationships have as powerful an influence on health outcomes as biological factors,25 that family members have a strong influence on the patient’s psychological adjustment and management of illness-including adherence to treatment regimens and adoption of other health behaviors that promote functioning and recovery,26 and that family interventions have been shown to improve health outcome for a variety of health problems.27 In pain medicine, it appears that family issues have been relatively neglected, although much attention was given to intervening with overly solicitous spouses in early pain programs,22 based on the operant conditioning perspective elaborated by Fordyce.28 Despite some interest in family issues, and the adoption of a biopsychosocial approach to pain management by many pain clinicians, there appears to be an emphasis on the “psycho” part of the biopsychosocial model, with less focus on “social” factors, especially family issues. When the family has been the subject of study, it is typically conceptualized as a potential resource to the patient, with less emphasis on the impact of the illness on the family system and how family dysfunction interacts with illness.12 It is the authors’ impression that psychoeducational family interventions predominate in current pain treatment settings.

Table 2. Family Member/Caregiver Tertiary Gains
Gratifying altruistic needs
  • Initiating a change in role as a result of the illness (e.g., the illness may solve a family role conflict, such as who will be the “breadwinner”)
  • Increasing autonomy in a relationship by permitting the well family member to undertake a previously “prohibited” activity, such as working outside the home
  • Fostering dependency on the caregiver, thus elevating the role of that caregiver in the relationship
  • Reducing unwanted sexual or emotional intimacy by adopting a caretaking role
  • Gaining sympathy and esteem from social network for taking care of the ill family member
  • Adopting the “caretaking role” may enable a spouse to get additional support from friends, family, and social agencies
  • Decreasing family tension and keeping the family together (e.g., conflicts over how to parent a child may decrease as the caretaker takes on more responsibilities related to parenting)
  • Resolving marital difficulties (e.g., conflicts over power in the relationship)
  • Means of expelling the ill person from an unwanted relationship
  • Resolving interpersonal difficulties or other life problems by maintaining a close relationship with an ill family member, thus avoiding conflictual or other anxiety-provoking interpersonal contacts, as well as deflecting attention away from one’s own problems, issues, or inadequacies
  • Financial gain, especially when the ill person may be eligible for more financial compensation than he or she typically receives (e.g., the possibility of a personal injury settlement)

The only clinicians who are really prepared to deal with complex tertiary gain agendas are family therapists with a systems perspective and who have received extensive training and experience with medical issues.12,15 The term “medical family therapists” has been used to describe these clinicians.12 They are best able to understand the function that the illness is playing in the family system, particularly how one family member occupying the “sick role” is helping the family reduce conflict or achieve homeostatsis. Unfortunately, such clinicians are few and far between, even among mental health professionals working with pain patients. However, with a basic understanding of the concept of tertiary gain in families, pain clinicians should be able to identify and manage many tertiary gain agendas.

The search for family tertiary gain issues is typically triggered by abnormal or excessive illness behaviors, failure of the patient to progress as expected in treatment, significant emotional distress, a “somatic” presentation, patient disclosure of family difficulties, or the perception that a family member (or the entire family) is trying to sabotage treatment efforts. An “interpersonally distressed” profile on the Multidimensional Pain Inventory (MPI)29 or a high score on the “solicitousness” scale of this same questionnaire may also trigger exploration of relevant issues. The first step in identifying family tertiary gain agendas is making the time commitment to explore these issues. Clinicians whose interventions consist primarily of brief symptom and medication management will probably be too time-limited, and also lack the relationship with the patient that serves as the foundation for deeper exploration. For these clinicians, referral to a mental health professional who has experience with chronic pain patients is recommended.

In the authors’ experience, most patients will talk freely about family issues, and the attendance of other family members is not routinely necessary to gather the essential information. Performing a family genogram (e.g., Hahn), which is a visual representation of family relationships, is helpful, but usually not required. Asking the patient open-ended questions, while providing an atmosphere conducive to patient exploration, is necessary. The patient must not feel hurried and should be allowed to follow their train of thought with few interruptions. In general, questions should be designed to encourage the patient to explore further. Closed-end questions can be used toward the end of the interview to gather additional specific information and clarify important issues. The following questions, partially adapted from Hahn,14 are helpful in eliciting useful information:

  • How are things going with your family?
  • How were things going before you became ill?
  • Any changes since you’ve become ill?
  • How is everyone getting along?
  • Are you having problems with anyone in your family?
  • How is your spouse/partner/family dealing with your pain/illness?
  • What are you no longer able to do for your family that you used to be able to do?
  • What do other family members have to do that they didn’t have to do before?
  • How do they feel about having to do more?
  • What help do you need from your family and who provides it?
  • How is everyone dealing with these changes?
  • Do you think your spouse/partner/family is being overprotective?
  • Is your spouse/partner/family encouraging you to do more than you are doing now?
  • Do you believe your spouse/partner/family wants you to get well?
  • Are there any ways that your illness has made things better for you or your spouse/partner/family?
  • What does your spouse/partner/family think and feel about the suggestions I have made (or the treatment you are undergoing)?
  • Does your spouse/partner/family ever criticize the treatment you are receiving?
  • What are you hoping I might say to or do about your family?

When the interview is complete, the clinician may have several possible hypotheses regarding possible family tertiary gain agendas (as well as secondary gain agendas). For example, based on information obtained in an interview with a male patient, the clinician may hypothesize that the wife of this man, injured in an industrial accident, believes that he will never be able to go back to work, and is therefore encouraging him to pursue social security disability (SSDI or SSI). The information provided by the patient may suggest that the wife has a financial tertiary gain agenda, coupled with a reduction of anxiety associated with fear of him returning to a dangerous work environment. In another family, a wife may recently have returned to work for financial reasons, with the wife’s parents taking on additional care taking responsibilities for the couples’ children. Marital conflict may have increased as the wife’s parents were introduced further into the family system, with the husband feeling that his wife was siding with her parents in childrearing decisions and becoming closer to them in general, with less intimacy between the marital partners. In other words, the grandparents got “triangulated” into the couples’ relationship. As the wife develops chronic pain, she is well enough to resume caring for the children, but her husband discourages her from returning to work due to her illness. There may be a secondary gain for the wife (avoiding a job that was undesirable in the first place), tertiary gains for the husband (an increase in self-esteem as he returns to his previous role as an important child-rearing decision-maker and the sole bread-winner, satisfaction at defeating his meddlesome in-laws, increased emotional intimacy with his wife), and a tertiary gain to the system (decreased tension between the spouses).

Interventions should be tailored to the specific tertiary gain agendas identified. In the first case of the man injured on the job, treatment may focus on developing a vocational plan that will allow the patient to participate in retraining in another (safer) field in which he will have the opportunity to make more money than he could by obtaining SSDI or SSI. Presented with this plan, both the patient and his wife will likely feel comfortable with allowing him to improve his health and function to the greatest degree possible. In the second case, the intervention may be as simple as helping the wife-patient understand the relevant dynamics. With understanding, she may be able to remedy the situation without further professional intervention. If not, brief couples therapy may allow the couple to relinquish their secondary and tertiary gain agendas. They may decide jointly that the additional income is not necessary or that the husband will acquire a second part-time job to allow her to remain home with the children (without having to be ill). The couple may reaffirm that they are a “team” in making decisions regarding their children, agreeing to make decisions jointly and without the influence of her parents. The couple may learn to communicate better, so that the husband does not need to resort to indirect communication (encouraging her to believe she is more ill than she really is, discouraging her from return to work) in expressing his concerns and needs.

Some patients may not respond to such interventions and may need to be referred on for further treatment. It is the authors’ impression that, in such cases, referral to a clinician experienced in family therapy will likely be more effective than a referral to a generic mental health practitioner or health psychologist. Intervention in these cases requires intimate knowledge of family systems and how they operate. Of course, many patients will resist or refuse a mental health referral. How this referral is framed by the clinician can make the difference in whether the patient (and possibly, the family) follow through with this recommendation. The inference that such a referral suggests the patient’s pain is in his or her head must be avoided. Instead, it makes more sense to patients, and is less threatening, to indicate that in addition to being physically painful, pain and associated disability is extremely stressful and that most people benefit from help with this stress, in addition to treatment for pain. Hahn14 suggests reframing problems as questions and describing therapy as the process of looking for answers. In the second case above, for example, the clinician might say to the wife-patient: “you have some serious questions to answer. You have to figure out if you really want or need to work and how much you want your parents involved in the care of your children, and then figure out how talk to them and your husband about it.”

The Tertiary Gains of Health Care Providers

Early accounts of tertiary gain7,30 focused primarily on family caretakers, although the tertiary gains of physicians were briefly discussed. More recently, Kwan and colleagues8 examined the tertiary gains of professional caretakers, generally physicians. The authors’ intention is to build on this work and to examine in depth the tertiary gains of a variety of stakeholders in the contemporary health care environment.

As discussed earlier, it is natural for health care practitioners to receive tertiary gains as part of the professional caretaker role. The discussion that follows focuses on those instances in which the seeking of tertiary gain by health care practitioners or other stakeholders is more motivating than acting in the best interest of the patient. When this occurs, there is a significant risk that the health care practitioner will erect barriers to recovery and/or create iatrogenic illness. Dansak7 was the first to apply the term tertiary gain to physician behavior, but as early as 1963, Hirschfeld and Behan31 asked “Do physicians as well as patients also suffer from the problem of unconsciously gaining from chronic illness?”

The impact of the health care provider on the patient extends beyond the diagnoses made and treatments performed. Some have conceived of the provider as a “drug,”32 making the doctor-patient relationship as important as any other therapeutic agent. And, as with a pharmacologic agent, the provider can cause both remarkably beneficial changes as well as untoward reactions of a negative nature.33 This typically works well when the physician is fulfilling his or her role obligations. Similar to the obligations of persons who are ill (e.g., to follow the doctor’s orders), physicians have role obligations including remaining affectively neutral (nonjudgmental) in dealings with patients, doing everything possible to effect the patient getting well as quickly as possible, and acting in the best interests of the patient.34 Just as patients may fail to heed to the demands of the sick role, resulting in “abnormal illness behavior” (e.g., non-adherence to medical recommendations),35 health care providers may ignore their professional role obligations and engage in “abnormal treatment behavior”36 including over-/under-diagnosis, over-/under-investigation, over-/under-referring, and over-/under-prescribing. This type of behavior is more likely in the presence of tertiary gain agendas and is likely to have iatrogenic consequences.37

Maintaining Good Relations with Patients

Physicians and other health care providers generally desire friendly, or at least cordial, relationships with their patients. This is normal. However, many will go out of their way, to the point of doing a disservice to their patients, to maintain such a relationship. For example, physicians routinely prescribe antibiotics for colds and related symptoms, even though most of these conditions are viral infections that don’t benefit from antibiotics. In addition to possible side effects, this “prescriptive promiscuity,” particularly of broad-spectrum antibiotics, is a major contributor to the emergence of resistant bacteria.38 Similarly, few providers deny patients a prescription for opiates, even when they feel they are contraindicated.39 Dr. Drummond Rennie, Deputy Editor of JAMA, in commenting on pharmaceutical advertising to the public, says “I think a doctor in a sense would be foolhardy or reckless with his own time and energy to spend time trying to go against the direct-to-consumer advertising. ‘I will lose this patient if I don’t prescribe what she or he is demanding right now.’ I can sympathize with people who make a cost benefit analysis in a flash and say ‘I just can’t afford the time’”40

Many doctors will impose needless or excessive work restrictions at the request of patients, which can be a major factor leading to iatrogenic disability.41 Similarly, it is common for physicians to authenticate, and thus legitimize, any diagnosis the patient desires, which the patient can then use to obtain compensation or other benefits.42 For example, in Winnipeg recently, as a form of protest, 107 police officers called in sick on the same day. Faced with the threat of losing a day’s pay, 91 officers produced a doctor’s note certifying that they were sick.43 According to Malleson, “some physicians have a thriving practice in applying the rubber stamp, and rubber-stampers can be found among the most venerated physicians.”42

The desire to maintain cordial relations with patients may serve a variety of tertiary gain functions. Many physicians are uncomfortable with conflict, and doing what the patients want is the path of least resistance, reducing anxiety about potential conflict or litigation.42 For example, it is easier to ignore potential substance abuse problems than to confront the patient about one’s suspicions. Other physicians may be motivated by altruism, seeing themselves as “pro-patient” and protecting patients from possible harm through re-injury (e.g., by imposing excessive work restrictions)41 or “patient advocates” who are helping their patient fight against an unfair system.44 Wynia and colleagues45 have observed that approximately one-third of physicians admit to “gaming the system” by deceiving insurers, in order to help patients obtain medical services that they could not otherwise afford. Finally, the financial gains accruing to health care providers in holding onto their patients cannot be ignored. It is simply a fact that the more patients one treats, the more financial gain one receives (except in managed care systems which provide financial disincentives for medical interventions). In workers’ compensation settings, for example, if doctors fail to do their patients’ bidding (e.g., taking them off work, supplying narcotic medication), many patients will simply find a different treating doctor who will.46

Several researchers have observed that a significant number of health care providers have practices (or run clinics) that specialize in particular “functional somatic syndromes” or “medically unexplained syndromes,” such as fibromyalgia, chronic fatigue syndrome, or “sick-building” syndrome.44,47,48 Such diagnoses are income-generating, but have limited support as actual diseases.48,49 Further, a large number of people in the general population not seeking medical care report similar symptoms if specifically asked about them.48 Many health care providers avoid such “difficult” patients, while others recognize the opportunities provided by the large numbers of such patients. Whether the tertiary gain is altruistic, or more financially oriented, it is likely to be iatrogenic, illness-perpetuating, and/or fraudulent.42,48-50

Labeling and Diagnosis

Making diagnoses is a normal part of the doctor role and is generally a pre-requisite for treatment. Labels, in the form of diagnoses, are often regarded as helpful to patients51 and aid in communication between health care professionals.52 However, there are times when the activities of labeling and diagnosis are motivated primarily by tertiary gain. One example of this is when health care practitioners intentionally use diagnoses that qualify patients (and therefore, doctors) for insurance reimbursement, even when they do not believe the diagnoses are accurate.52,53 For example, physicians are unlikely to find a definitive etiology for most patients presenting with low back pain. Imaging of the spine will likely show normal degenerative changes associated with aging. This “diagnosis” will not lead to reimbursement. On the other hand, “degenerative disc disease” or “spondylosis” will likely lead to payment for treatment. The problem is that, by medicalizing a normal phenomenon, the doctor may undermine patients’ sense of well-being by reinforcing unproductive illness behavior, increasing patients’ sense of vulnerability, diminishing bodily self-confidence, and creating an adversarial relationship between patients and the health care system.17,52,54 The appropriate treatment for most cases of low back pain is exercise, continuing normal activities, and returning to work as soon as possible, but few patients see this as appropriate when they are told they have degenerative disc disease. An example of how labeling can “disable” people is provided by a group of researchers55 who found that patients who did not know they were hypertensive showed a threefold increase in days of work missed after diagnosis, with this effect being independent of the antihypertensive regimen.

Inappropriate diagnosis also subjects the physician to moral risk by “gaming” the system.45,53 The tertiary gain is financial compensation, although physicians are also prone to give diagnostic labels of convenience in the altruistic (but problematic) belief that the possession of a diagnosis affords some comfort or satisfaction to the sufferer.51,56

There is also a small minority of health care providers who make “fashionable” diagnoses (functional somatic syndromes or medically unexplained syndromes) such as fibromyalgia or chronic fatigue syndrome, who may feel virtuous and “pro-patient” for having the “courage” to make controversial diagnoses.44,47,52,56,57 Some of these same physicians may be seeking to quell their professional inadequacies by leaving the patient superficially pleased and the physician self-satisfied.44,56 Once labeled, patients with these syndromes of non-specific organic etiology behave sicker and more disabled than many patients who have verifiable diseases.49,58,59 For example, patients with fibromyalgia consider themselves more ill than do patients with emphysema, rheumatoid arthritis, and even advanced cancer.60

Inappropriate diagnoses are also given to patients to avoid litigation. For example, if a patient goes to the trouble of presenting to an emergency room after a minor automobile accident complaining of neck pain, they will almost automatically receive a diagnosis of “neck sprain,” despite the usual absence of any clear-cut physical findings. Malleson42 suggests that the purpose of this label of convenience is to prevent emergency room physicians from later being sued by patients in whom an injury (real, imaginary, or coincidental) is subsequently found. In such cases, the diagnosis of sprain is a forgivable mistake, while “no diagnosis” would likely result in a malpractice suit.

Finally, negative labeling is used as a way to deal with difficult or undesirable patients. “Good” patients confirm the doctor’s role,61 which includes diagnosing and treating medical illness. “Bad” patients deny the legitimization of the doctor’s role61 in a variety of ways such as disagreeing with their physicians about medical issues, reporting symptoms in the absence of identifiable organic pathology, or displaying unpleasant behaviors or personalities.62-64 Physicians often label these patients as “difficult,” “psychosomatic, or having a psychiatric illness.54,62,65-67

The negative feelings evoked by difficult patients are dealt with in several typical ways, each involving potential tertiary gain. Physicians frequently diagnose a psychiatric illness and refer difficult patients to mental health professionals or other specialists. Although there are times when such referrals are appropriate, this action may be a way of avoiding uncomfortable feelings associated with such patients (e.g., anger, feeling ineffectual)7,62,65 or punishing a patient with a label that is offensive to patients, because it does not provide the necessary social sanction to be recognized as “sick.”68 Socially, psychiatric illness is simply less legitimate than physical illness. Not only will patients feel stigmatized, but they will likely redouble their efforts to prove that they have a “medical” illness by increasing illness behavior and seeking additional health care.44,54

“Inappropriate diagnosis also subjects the physician to moral risk by “gaming” the system.45,53 The tertiary gain is financial compensation, although physicians are also prone to give diagnostic labels of convenience in the altruistic (but problematic) belief that the possession of a diagnosis affords some comfort or satisfaction to the sufferer.”51,56

When the referrals of difficult patients are to other medical specialists, excessive consultations commonly amplify and fragment the problem by providing a series of inaccurate partial explanations and hypotheses in each organ system without addressing the larger integrated whole.54 In such circumstances, patients tend to become more vigorous in their seeking of health care, interventions, and answers, resulting in “doctor-shopping.” Iatrogenic harm is likely.

Health care providers may also use labels such as “psychosomatic” to exclude patients from treatment and move on to more desirable patients.54 The tertiary gains are multiple in such situations. Perhaps most importantly, the provider no longer has to deal with a patient who is not playing the “sick role” correctly. Using such labels also prevents the physician’s biomedical disease model from being threatened, prevents feelings of inefficacy, and prevents feelings of being manipulated. Similar dynamics frequently play out in workers’ compensation settings. The (sometimes exaggerated) illness behaviors of many claimants (which are more likely to be reactions to the constant questioning of the truthfulness of their injury rather than malingering) may lead the practitioner to attribute these behaviors to malingering, which results in a threat to the patient’s integrity and increased distress and illness behavior. Of course, this “confirms” the practitioner’s suspicions and a vicious circle is started.69

Finally, when a health care practitioner or team has put a lot of emotional effort into the treatment of a patient, with frustratingly small visible benefit, the use of terms like “manipulative,” “noncompliant,” and “difficult” may serve a protective and distancing function, helping to prevent burnout.70 In this situation, the tertiary gain is to reduce the emotional burdens on a caring and compassionate professional caregiver or team.

Excessive/Inappropriate Treatment and Over-investigation

Dansak7 was among the first to observe that some health care practitioners prolong treatment unnecessarily, for tertiary gain purposes. This is particularly true in fee-for-service reimbursement environments.71 One example is the rehabilitation specialist who offers interminable passive interventions, even when the patient is making no progress,44 or a psychotherapist who offers endless “supportive” therapy, again with no demonstrable benefit to the patient. Anecdotally, one of the authors (JD) has talked with many workers’ compensation chronic pain patients who initially sought treatment at one of the “accident and injury” clinics that advertise on TV and in print media. Many of these patients report that their initial treating doctor told them “If you want, I will keep you off work for two years, keep your checks coming during that time. All you have to do is come in for regular treatment.” These doctors are often chiropractors, their treatment typically consists of adjustments, and the statutory limit until reaching maximum medical treatment is two years in the author’s home state of Texas.

Malleson has observed that, “as the Medicare allowance for the manipulative treatment of any particular intervertebral joint becomes exhausted, subluxations unaccountably move up and down the spine.”42 Medicare is generally administered as a fee-for-service health care system. It has been determined that between 8% to 86% of surgeries, depending on the type, are unnecessary with substantial avoidable death and disability.72 There is a significant and growing body of literature in prominent peer-reviewed medical journals that chronicles pervasive use of unnecessary or inappropriate invasive procedures.73,74 Chassin and colleagues73 found that Medicare patients were often operated on inappropriately, including 17% of cases of coronary angiography, 32% of cases of carotid endarterectomy, and 17% of cases of upper gastrointestinal tract endoscopy. Halm, Chassin and colleagues75 found that the rate of inappropriate or uncertain endarterectomy had dropped to only 15% by 1997 (probably the result of the dissemination of results from multiple randomized controlled studies of the procedure), but that many surgeons continued to inappropriately perform sequenced carotid endarterectomy and coronary artery bypass graft, with unacceptable rates of post-surgery morbidity and mortality. Although there may be various factors involved in these findings, tertiary gain in the form of financial renumeration is almost certainly one of these factors.

A procedure is appropriate when the expected medical benefit (e.g., quality of life, life span, reduced pain, improved functioning) exceeds the potential medical risks (e.g., mortality, pain, impairment, anxiety caused by the procedure) by a sufficiently wide margin that the procedure is worth performing.76,77 Excessive and unnecessary invasive procedures are most common when there is a lack of consensus about the appropriate indications for the procedure (i.e., medical uncertainty).71 This lack of consensus, combined with financial incentives for either over-treatment (or under-treatment) is believed to play a part in the widely varying rates of surgery and days in the hospital in different geographic regions.78 And higher rates of surgery are often associated with negative outcomes. Using the example of back surgery, in which there is a lack of consensus among experts for many back conditions, one formal study found that the best surgical outcomes were obtained in the part of the state (Maine) with the lowest surgery rate.79 Not only is the risk of poor outcomes high in terms of improving the condition for which the surgery was performed, but complications from surgically implanted devices and grafts trailed only heart disease, pneumonia, and childbirth as a reason for hospitalization.80 Paradoxically, newer diagnostic procedures, which may financially benefit those who order them, may be adding to the problem of excessive and unnecessary invasive procedures. For example, abnormalities in spine structures are common, not only in patients with pain, but also in non-symptomatic individuals. When a patient presents with pain, and an imaging study shows abnormalities, surgery is often performed, even when it is unclear that it will benefit the patient.81 Back surgery rates are highest where MRI rates are the highest.82 In a randomized study, performing an MRI instead of a plain x-ray led to more back surgery, but failed to improve the overall results of treatment.83

Excessive or inappropriate treatment and over-investigation may be motivated by tertiary gain agendas other than financial incentive. For example, Lange and Hillis84 have made the following observation:

In an era in which invasive cardiac procedures are manifestations of high-technology, resource-intensive medical care, many patients and their family members expect and insist on aggressive management. The term “conservative management” may project the impression (to physicians and patients alike) of obsolescence, inadequacy, and inferiority rather than of thoughtful reflection…In the event of an adverse outcome, the patient and his or her family may be more understanding and forgiving if an aggressive approach was pursued (i.e., if “everything possible was done”), even if such an approach contributes to the adverse outcome.

In addition to the pressure to provide aggressive treatment, this example demonstrates how the litigious atmosphere in which medicine is practiced today has led many doctors to adopt a defensive stance in their work.85 Physicians who fear being sued may become “rule-out” doctors who perform excessively “thorough” investigations, which can alarm the patient and lead to excessive somatic concern on the part of the patient.17,85 In this “nervousness-based” medicine, the only bad test is one you didn’t think of ordering.86

Despite the fact that whiplash symptoms do not predict abnormal x-rays,87 almost every emergency room physician will order x-rays “just in case” and reduce their fears of “missing something.”42 Deyo and Patrick81 suggest that, even if a physician is not inclined to order unnecessary services, defensive practices sometimes create a “standard of care” that is hard to ignore. For example, obstetricians use electronic fetal monitoring almost universally despite the dubious utility of this practice. Many agree that the rationale for this practice relates to the fear of malpractice suits, not the demonstrable value of the intervention.81

Some health care practitioners feel more effective and competent when they are “doing something,” even if they do not have a good rationale. Continuing to prescribe high doses of opioid medications to chronic pain patients who are not making functional gains is an example of this phenomenon. And, of course, altruism is a normal tertiary gain that may, nevertheless, motivate unnecessary/excessive treatment and over-investigation. Unfortunately, these behaviors may be harmful to the patient, by subjecting them to unnecessary treatment with the potential for adverse consequences, and by encouraging patients to believe they are more ill than they really are.

Table 3. Health Care Practitioner Tertiary Gains
• Gratifying altruistic needs
  • • Gaining admiration and respect from patients or their support groups
  • • Gratifying one’s need (or sense of righteousness) to level the playing field against powerful entities (e.g., the workers’ compensation insurance company)
  • • Establishing one’s position as compassionate and “pro-patient”
  • • Gaining one’s entitlement (fame and fortune) for years of struggling and dutiful attention to responsibilities
  • • Withdrawing from (or simply avoiding) unpleasant or potentially litigious situations that may result from confronting the patient with a diagnosis or treatment the patient and his/her community might reject
  • • Means of attacking one’s professional detractors
  • • Validating one’s own illness of the same type
  • • Dismissing a frustrating or disliked patient from care
  • • Receiving financial rewards associated with an increased client pool and provision of medical services

Additional tertiary gains of health care practitioners are described in Table 3. Again, this list is not meant to be exhaustive.

Approaches to Managing the Tertiary Gains of Health Care Practitioners

Much of the discussion above focused on the financial gains of health care practitioners. This is obviously a sensitive topic of discussion. Nevertheless, there is a consensus among key observers,42,49,50,71,81,88-90 that the practice of medicine has increasingly become dominated by financial issues. For example, George Lundberg, M.D., former Editor-in-Chief of the Journal of the American Medical Association, outlines the development of medicine from one of the “learned professions”—focused on the moral enterprise of a service profession—to the business it is today.89 Lundberg laments that there are “too many entrepreneurs” in medicine. He also points to the many financial conflicts of interest that physicians face, such as physicians who own laboratories and self-refer patients to them, or surgeons who decide who to operate on. Insurance coverage also presents conflicts of interest. Under traditional fee for service insurance, the physician is rewarded financially for intervening actively and frequently, but under managed care there are financial incentives for limiting diagnostic evaluation and medical treatment.71 Because many health care practitioners, like most people in general, respond to financial incentives, it has been argued that one of the primary challenges in designing an optimal payment system is striking a balance between economic incentives for “over-treatment” and “under-treatment.”91

There is a great deal of evidence that some physicians actively seek out financial gain wherever they can find it, while others respond to favorable financial reimbursement schemes, even when their behavior is ethically questionable or at least tainted by the possibility of financial conflict of interest. The major risks of financial conflicts of interest among health care practitioners are risk or injury to patients, flaws in medical information, and serious ethical lapses.90 A financial conflict of interest exists when an individual or organization is in a position in which judgment concerning a primary interest (in this case, a professional responsibility to put the interest of patients first) may be unduly influenced by financial gain.92 Given that providers must earn a living, financial conflicts of interest are inevitable, cannot be entirely eliminated, and are therefore not inherently immoral or unethical. The authors’ position on this is that health care professionals are entitled to be well-paid for their work, which, in addition to being highly valued by individuals and society, required extensive and expensive training. The authors alos believe that it is normal for health care professionals to be motivated by financial gain. What is unethical is acting on financial gain agendas in the face of conflicting professional and ethical responsibilities,90 especially the values associated with the learned professions namely, service, quality, altruism, and self-sacrifice.81

One problem with financial conflicts of interest is that they may be subconscious, and thus undermine judgment and lead to self-deception.93 Or providers may be aware of conflicts of interest, but unconsciously rationalize their financially-driven behavior. For example, it is easy to see how a surgeon, faced with a questionable surgery candidate, can rationalize a decision to operate as a choice to treat his or her patient aggressively, even heroically. Medical uncertainty is fertile breeding ground for financial gains to take precedence over professional judgment and ethical responsibility.71 Unfortunately, medical uncertainty is the rule, rather than the exception. For example, many, if not most, patients presenting for treatment to primary care physicians do not receive a biomedical explanation for their distress.94 Low back pain is particularly notorious in terms of physicians’ difficulty in arriving at a precise pathoanatomical diagnosis. It has been estimated that precise cause of pain is unknown in 85% of patients with isolated low back pain.95 In the face of such medical uncertainty, the tendency to over-treat in fee-for-service arrangements is as high as the tendency to under-treat in capitation and other fixed reimbursement environments.

In addition to the proposal of adjusting payment systems to achieve a balance between incentives to over-treat or under-treat, a growing number of professional organizations (e.g., the AMA) and governmental agencies (e.g., the NIH, Department of Health and Human Services96), are developing guidelines for physicians in managing financial conflicts of interest (e.g., the AMA’s Guidelines on Gifts to Physicians from Industry: An Update) AMA Council on Ethical and Judicial Affairs.97 Others98,99 have suggested common-sense self-monitoring strategies, such as asking oneself “Would I be embarrassed to disclose my incentive arrangements to my patients?” Would I be willing to have this arrangement generally known?” and “What would the public or my patients think of this arrangement?” Transparency, or full disclosure of potential financial conflicts of interest (including to patients), has been recommended by many key observers.81,90,100

Other recommendations for reducing the iatrogenic consequences of the tertiary gains of health care providers include:

  • Development of expert consensus guidelines for treatment of disorders such as surgical treatment of low back problems, by experts with no financial or other conflicts of interest bearing on the outcomes of the guidelines
  • Increased government regulation of the attempted manipulation of health care practitioners by industry (e.g., pharmaceutical companies)
  • Healthcare training, and continuing healthcare education, should require training not only in “ethics,” but specifically in conflicts of interest, including how to recognize them and how to work with them ethically, and in the best interests of patients.
  • Increased study and investigation of tertiary gain and its impact on healthcare treatment

The authors are currently working on a more complete study of the tertiary gains of health care practitioners, including additional measures to prevent these gains from negatively impacting healthcare.

“Healthcare training, and continuing healthcare education, should require training not only in “ethics,” but specifically in conflicts of interest, including how to recognize them and how to work with them ethically, and in the best interests of patients.”

Tertiary Gain and Government Oversight

The pain field is now perceived to be “under attack” from many quarters—federal and state governments, the DEA, lawyers, etc. Unfortunately, it only takes a few unscrupulous health care providers to create major problems and intense government scrutiny for the vast majority of scrupulous practitioners. How should you protect your practice from random spot checks and suspicion of malfeasance? The following discussion will highlight the important areas that health care professionals must document due diligence in when managing their pain patients.

Proper Coding and Billing Compliance

The correct coding of services provided to patients is a necessity in today’s health care system. In fact, correct coding accompanying any billing for health care service is now a legal requirement. This legal requirement was mandated by governmental policy in the form of two major acts/bills: (1) The Budget Reconciliation Act of 1997, which empowered and directed Centers for Medicare and Medicaid Services to develop a payment system based on documental health care professional work. (2) The Kennedy-Kassenbaum Health Reform Bill, which empowered and directed the Office of the Inspector General and the Federal Bureau of Investigation to identify and prosecute health care fraud and abuse.

These two above actions have established the requirement for the correct coding of assessment and treatment procedures to be diligently documented and justified. Random audits by federal agencies can occur at anytime, without notification. Protecting your practice can be accomplished by doing the following, as previously delineated by Gatchel:101

  • Compulsively maintain chart notes when the patient is seen, with proper/correct coding, which are signed and dated by the provider.
  • Have an internal compliance officer plan in place to ensure that the above is followed by all health care providers on a daily basis. This could be in the job description of the practice administrator or some other staff member (e.g. the nurse).
  • Relatedly, a designated person will need to be responsible for ensuring that the practice is compliant with all of the federally mandated health care fraud and abuse laws. One such model—“Guidance for Individual and Small Group Physician Practices”—was produced by the Office of the Inspector General’s draft of a model compliance (for information, contact the American Medical Association, Customer Service, at 1-800-621-8335). This document outlines the specific components of a model compliance program plan.

It is also just as important to have your billing staff be well trained in the appropriate coding terminology in order to provide a double check on the healthcare professional’s coding and billing notes. This will provide a safeguard to ensure that appropriate codes and billing statements are consistently documented. Unannounced external audits are now quite frequent in health care facilities. A practitioner, therefore, must be extremely diligent in making certain that the coding and billing guidelines are carefully adhered to. There are currently a number of publications available that provide comprehensive pain management and billing rules for both Medicare and private payers, such as the “Pain Management Coding and Billing Answer Book” (National Pain Management Reimbursement Division, 2003).

Patient Confidentiality Requirements

In addition to the legal requirement of using proper coding and billing guidelines, health care professionals are also required to establish a minimum level of privacy protection for health care information of patients. The U.S. Department of Health and Human Service has developed the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, which establishes patients’ rights concerning the use and disclosure of their health care information. Access to patient data must be carefully controlled by health care providers, health care plans and health care clearinghouses. The actual HIPAA security rule issued by the Department of Health and Human Services was published in the Federal Register on February 20, 2003. It is also available on various web sites (e.g., http://www.apapractice.org). Again, Gatchel101 has delineated procedures health care professionals should follow in order to be certain he or she is compliant with HIPAA:

  • Post your “Notice of Privacy Practices” in a clear, prominent location in the office.
  • Give patients copies of your “Notice of Privacy Practices”, and make good-faith efforts to obtain written evidence of their receipt.
  • o not leave protected health information (PHI) on telephone answering machines, and follow safeguards for PHI that is transmitted by fax or e-mail.
  • File away promptly (and lock at night) folders that contain medical records.

Medication Management and Maintaining

Because of legal concerns about over-prescribing opiod medications and possible addiction and abuse issues, and DEA oversight in this area, it is important to carefully document prescription details for all your patients (i.e., document, document, document…!). Also, more attention should be given to “flagging” patients who may potentially misuse medications. Recently, the Pain Medication Questionnaire (PMQ) was developed to help this “flag process.”102 The purpose of the PMQ is to help identify patients that need to be more carefully monitored for possible drug misuse. Simply allowing patients to call in for refills whenever needed is not appropriate. Due diligence must be carefully followed and documented, especially when prescribing opiods. The following are suggested guidelines to follow:

  • Documentation that the pain syndrome being treated is responsive to opiods by a clinical trial (must be carefully documented).
  • On a regular basis, careful documentation of the degrees of analgesia, any side effects, functional status, and evidence of any aberrant drug-related behavior.
  • Having a single physician take the primary responsibility for the opioid medication.
  • Specific goals for functional improvement, as well as pain relief, should be clearly stipulated and agreed to in writing by the patient to justify the medication regimen.
  • For any request of an early refill, patients should be requested to come in for an office visit.
  • Evaluate patients for any potential misuse of medications by screening with instruments such as the PMQ.
  • If patients are evaluated as “high risks,” careful monitoring and documentation on a regular basis is a necessity!
  • Consider dispensing habit-forming medications at shorter time intervals for patient determined to be at “high risk”.
  • Attempt to prevent prescribing of pain medications by multiple practitioners by contacting the patient’s other medical practitioners and reaching an agreement on a single prescriber.
  • Document the reasons for “off-label” medication use, such as Trazadone (desyrel) for sleep, or when using a dose range beyond that recommended by the Physicians’ Desk Reference.
Last updated on: November 5, 2020
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