Ben Rich, J.D., Ph.D.

Question: Why has there been so much attention given to pain management in clinical medicine recently, especially by the courts, legislatures and regulators?

An epidemic of undertreated pain was copiously documented in the medical literature during the last quarter of the 20th century. Nevertheless, the response by the medical profession and the organizations that regulate it ranged from sublime indifference to outright denial. During the last 10 to 12 years, however, a remarkable number of legal and public policy initiatives — far too many to list here — acknowledged the problem and began to implement practical solutions to it.

Question: Can the problem be legitimately characterized as an ethical one?

Undertreated pain (and other distressing symptoms) is a multidimensional problem, and hence, requires multi-dimensional solutions. If we accept the proposition that the relief of suffering (one cause of which is persistent pain) is a core value of medicine, then a failure or refusal to relieve it when the means are available is unethical medical practice. If effective pain relief is an important element in good patient care, then the manifest inability to provide such care constitutes both a lack of professional competence and a material departure from sound clinical practice. Either may provide the basis for disciplinary action or a professional liability claim alleging medical malpractice.

Question: What has been the public policy response in California?

California has recently become one of the states with the greatest amount of activity on the pain front. In 1994, the California Medical Board (CMB) became one of the first such boards to promulgate a policy statement and set of guidelines emphasizing the duty of physicians to make pain relief a priority in patient care. It was another four years before the Federation of State Medical Licensing Boards (FSMLB) got around to proposing a model pain policy. In 1997, the California Assembly enacted the Pain Patient's Bill of Rights. In 1999, the Assembly declared that pain should be charted with the same attentiveness, responsiveness and frequency as vital signs in all licensed health care facilities. Courses in pain management and end-of-life care were added to those required for medical licensure in California. In 2001, AB 487 was passed, requiring that all licensed physicians in California (with the exception of radiologists and pathologists) obtain 12 hours of continuing medical education in pain management and/or end-of-life care by .D. 2006. In 2003, legislation was intro- duced and favorably received that would replace the triplicate forms now required for the prescribing of Schedule II narcotics with an electronic monitoring system (provisionally in place since 1996) and special prescription pads (for all prescription medications) designed to prevent forgery.

Question: Has this activity, particularly the lawsuits against physicians, created an unnecessarily hostile environment for medical practice?

There is clearly an impression on the part of many physicians that this frenzy of activity on the pain management front has placed them between the proverbial "rock and a hard place," that they are "damned if they do and damned if they don't." In other words, if they err on the side undertreating pain, fearful about the known risks and side-effects (often greatly exaggerated) of opioid analgesics, they will be sued by patients for failure to provide pain relief or disciplined by the MBC for "underprescribing." If, on the other hand, they err on the side of pain relief, and liberalize their prescribing practices, they will be sued by their patients for causing premature death or drug addiction, or disciplined by the MBC for "over-prescribing." There is also concern that such liberalized prescribing practices may put them on the radar screen of the federal Drug Enforcement Administration and hence place them at a greatly increased risk of prosecution for drug diversion. There is also the potential ignominy of being labeled in their medical community as a "script doctor." The MBC, the FSMLB, and national pain organizations such as the American Pain Society and the American Academy of Pain Medicine, have sought to reassure nervous physicians that the middle ground between the over-prescribing and under-prescribing of opioid analgesics is not a precipitously narrow line, but a much broader range of acceptable practice, one which includes a reasonable allowance for the exercise of clinical judgment and clinical practice variation. Neither the intent nor the necessary consequence of public policies to insure the relief of patient pain and suffering is the infliction of pain and suffering on the physicians who care for them.