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INADEQUATE PAIN MANAGEMENT:
A Complicated Issue for California Physicians
Dan Groszkruger, JD, MPH

A $1.5 million verdict against an East Bay internist should provide a jolt to any physician caring for severely ill patients.1 Prescribing too little pain relief medication can present some serious downside risks. The internist was found liable for inadequate pain management of a terminally ill cancer patient, in violation of California's Elder Abuse laws. Indeed, prescribing pain relief medication has become more and more complicated for physicians.

Physicians are well aware that prescribing too much pain relief medication can lead to trouble. A recent article in the New York Times (1/23/02) reported that a number of physicians across the country have been charged with murder or manslaughter in the drug overdose-deaths of patients who were prescribed OxyContin and other narcotic painkillers. State and federal law enforcement officials reportedly are "intensifying their pursuit" of doctors they suspect of prescribing illegally or improperly.

But now, physicians face serious liability risks for under-prescribing. In the internist's case, the 85-year old patient was a long-time smoker, with COPD, who was under treatment for compression fractures of the spine. In the E.R., the patient had received phenergan, as well as two injections of morphine sulfate. Although these drugs provided relief from pain, the patient experienced respiratory distress, and momentarily stopped breathing. Thereafter, the internist prescribed Demerol, 25 to 50 mg, as needed.

Although family members expressed concern about the patient's apparent severe pain, the patient himself never complained that his pain medications were inadequate. After six days, the patient was discharged, with prescriptions for Vicodin and a fentanyl patch. At home, a hospice nurse evaluated the patient, concluding that his pain was severe and out-of-control. Two days later, his family doctor ordered morphine and more fentany^l patches. The patient died the following day, apparently from lung cancer.

The huge verdict² against the internist highlights a dilemma for physicians. Over-prescribing medication for pain relief can lead to Medical Board investigations, discipline (i.e., license suspension or revocation), as well as civil liability and even criminal charges. But now, under-prescribing the same medications may lead to huge money damages, including punitive damages, under California's Elder Abuse laws.
Physicians, who wish to prescribe medication to relieve suffering without putting their medical licenses on the line in the process, must chart an intricate course between over- and under-prescribing. To prescribe pain relief medication within the zone of safety requires proper documentation. Here are some practical recommendations for pain-related documentation:

• If your patient is hospitalized, document your review of the nurses' pain assessments and your response. If the hospital nurses are rating your patient's pain a "9" (on a 10-point scale - 10 being the most severe), you cannot afford to ignore it. NOTE: the JCAHO now requires an initial assessment of pain for every patient, followed by regular reassessments, as necessary.
  
  
• Develop a pain scale for use in your office, to evaluate patients who complain of pain. Two ideas:
  (1) ask your patient to rate his pain on a 1 to 10 basis, with "10" being the most severe, excruciating pain imaginable;
  
  (2) for children, or non-English speaking adults, develop or obtain the "smiley face" chart, ranging from a smiley face to a face distorted by pain.³ Patients point out the level they are experiencing.
  
  
• Document your patient's responses about pain. While this can be subjective, recording the patient's own words used to describe pain will help to explain the basis for your response and/or treatment.
  
  
• Educate patients on how to take pain medication; e.g., regular doses of pain medication help maintain blood levels for the best pain control.
  
  
• Document the patient's statement of actual use of pain medication. This will help alert you to non-compliance or educational issues.
  
  
• And, of course, document your plan for pain management.