Publications
APS Bulletin • Volume 14, Number 5, 2004
Pain and the Law
A Brief Introduction
Ben A. Rich, JD PhD, Department Editor
What follows will serve as a brief introduction to a new department of APS Bulletin. American healthcare professionals, more than those in any other country, practice within a complex and constantly changing regime of statutes, regulations, and common law judicial decisions at the trial and appellate court level. This regime extends far beyond medical malpractice litigation, and for purposes of this introduction, will be referred to generally as “medical jurisprudence.” However, the term “medical” is used expansively, so as to include not only physicians but all varieties of healthcare professionals. Another important point is that the varieties of law affecting pain and symptom management do not apply only to pain medicine specialists, pain nurse specialists, or pharmacists who dispense opioid analgesics. All healthcare professionals who purport to address pain issues with patients, or who can be reasonably expected to have a responsibility to do so, come within the ambit of these statutes, regulations, and cases.
During roughly the last 15 years, almost every aspect of medical jurisprudence has begun to address issues related to the assessment and management of pain. For example, a number of states enacted what have come to be characterized as “intractable pain treatment statutes.” These statutes constituted an effort by state legislatures to send a message to state medical licensing boards that their proclivity for imposing sanctions on physicians who prescribed opioid analgesics for the management of chronic pain was contrary to sound public policy and patient care. Despite the enactment of such statutes, and certainly in states that chose not to do so, physicians who were subjected to medical board sanctions for so-called “overprescribing” of opioid analgesics challenged those sanctions in court. In several notable cases, appellate courts ruled in favor of the physician and ridiculed the draconian approach exemplified by the board.
As the movement for better care of the dying gained strength and momentum, some families and their legal counsel were emboldened to file complaints against physicians and or healthcare institutions for failure to provide appropriate relief of pain and other symptoms of terminal illness that caused or increased the patient’s suffering. Juries in these cases awarded substantial (i.e., seven figures) damages, making it clear that a standard of palliative care could be established which primary care physicians, not just pain medicine specialists, would be expected to meet. In such cases, which in many ways resemble the typical medical malpractice trial, physician expert witnesses testify on what they believe the standard entails and why they are of the opinion that it was or was not met in that particular instance.
The subject of pain management actually reached the United States Supreme Court in 1997, in the form of two legal challenges to state laws that prohibited assisted suicide. In the process of ruling unanimously that there is neither a federal constitutional right to assistance in ending one’s own life nor a constitutional prohibition against it, a majority of the justices agreed that dying patients are entitled to all of the medication that may be necessary to ensure the relief of pain and suffering, even if a consequence of its administration is likely to be permanent unconsciousness or a hastened death. Among the many profound ethical issues raised by the litigation was whether a principled distinction can be made between terminal sedation and physician-assisted suicide. The debate among healthcare professionals on this issue continues unabated.
Currently, the State of Oregon and the U.S. Department of Justice are locked in a protracted federal court battle over the issue of whether physicians who provide lethal prescriptions of controlled substances consistent with the Oregon Death With Dignity Act are subject to prosecution for violation of the federal Controlled Substances Act. Thus far, a federal district judge in Oregon and a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco (by a 2 to 1 vote) have ruled in favor of Oregon. This case may ultimately be headed to the U.S. Supreme Court for final resolution.
Some of the most consistently high-profile cases have been criminal prosecutions of physicians for allegedly prescribing opioid analgesics for illegitimate reasons or with reckless disregard for patient safety, thereby causing or contributing to the patient’s death from overdose. Although prosecutors have obtained convictions in some of these cases, in many others the trial judge has greatly reduced or completely dismissed the charges, or juries have found the physicians to be not guilty. However, such exonerations come at a heavy price—personally and professionally—for the accused physician. Moreover, these prosecutions have a chilling effect on the willingness of physicians to prescribe opioid analgesics to chronic pain patients.
In future Bulletins each of these will be considered, and many other issues at the interface of pain medicine and the law, in greater depth and detail. Manuscript submissions from APS members and nonmembers who follow and are familiar with this burgeoning aspect of pain management and palliative care are encouraged. Interested persons are referred to the Instructions for Authors of APS Bulletin for guidance in manuscript preparation.
As for a brief introduction to the editor, I am currently associate professor of Bioethics at the University of California, Davis School of Medicine, with faculty appointments in internal medicine and anesthesiology and pain medicine, as well as a visiting professor appointment in the UC-Davis School of Law. Prior to earning a PhD in philosophy in 1995 from the University of Colorado at Boulder, I practiced law for nearly 20 years, primarily representing physicians, healthcare institutions, and universities. Early in my second career as an academic bioethicst, I developed a deep and abiding interest in the ethical and legal aspects of Pain management and palliative care. I am both pleased and honored to have been invited to join the APS Bulletin editorial board with the charge of establishing the department of Pain and the Law.