Years ago, doctors were sued for damages when people were harmed or
became addicted to pain killers or narcotics.
The trend changed and doctors became very circumspect and
self-protective because of possible peer and legal trouble.
Now, I hear that the pendulum has shifted and patients are suing
doctors for undertreatment of pain. Is this taking place and are suits
being won by people for not getting adequate treatment for their pain?
Thanks,
Yesmam

Hi! Thanks for the question.

Yes undertreatment of pain is now a source of legal headache for
physicians in the US. Plus legal cases have also been decided against
doctors for undertreating pain.

“Inadequate pain care continues to draw regulatory scrutiny, as
well-publicized legal decisions over the past several years have
underscored the reluctance of some healthcare providers to adequately
treat pain.”

“The Oregon Medical Board, for example, disciplined a doctor for
failing to provide pain control to six patients, in one instance
treating an elderly cancer patient with acetaminophen and refusing a
nurse's request for stronger medication; in another, refusing requests
for pain control in a patient in her 30s who required intubation. The
doctor did not lose his license but was required to undergo pain
training.”

“A serious look at the undertreatment of pain”
http://www.partnersagainstpain.com/html/profed/profed.htm?pg=7508&section=profed


“Traditionally, physicians have been more concerned about the
repercussions of overtreating pain. The possibility of being sued for
undertreating pain adds a whole new twist to pain management. ‘This
case says if you do not relieve the suffering and the pain associated
with disease, you may be held liable,’"

California Case:

“The jurors in June found the internist guilty of elder abuse and
recklessness and awarded the now-deceased man's family $1.5 million.”

“The guilty verdict came even though Wing Chin, MD, prescribed Demerol
(meperidine hydrochloride) to 85-year-old William Bergman to ease the
back pain he complained of when he arrived at the Eden Medical Center
in Castro Valley, Calif., in 1998. He sent Bergman home with Vicodin
(hydrocodone bitartrate, acetaminophen) and a skin patch containing
another drug. Dr. Chin used those pain killers after a dose of
morphine temporarily stopped Bergman's breathing.”

“But Bergman's children said the pain killers their father received
weren't strong enough because he was given a fraction of the normal
dosage.”

“Doctor guilty of elder abuse for undertreating pain”
http://www.ama-assn.org/sci-pubs/amnews/pick_01/prl20723.htm

“Now you may be liable for undertreating pain”
https://orthus.safe-order.net/compassionindying/bergman/medicalecon.pdf


However, even with these cases such legal occurrences are still
relatively low in the US setting according to our next article. The
article contends that patients need more of these types of cases so as
to improve pain management in the United States.

“The threat of a malpractice suit for undertreatment of pain is
presently quite low. Few judicial decisions discuss pain management
and undertreatment. Pain as a component of a tort suit shows up
primarily in pain and suffering awards for a physician’s negligent
treatment or diagnosis of a patient that leads to physical harm and
accompanying pain; workers compensation claims for pain treatments; or
a component of emotional distress claims. If, however, a physician’s
treatment of the patient’s illness meets the medical standard of care,
then the pain attendant on the normal course of illness has typically
not been the object of tort damages. What is needed is recognition
that the standard of care in treating patients includes pain
management as much as it does treatment of the disease.”

“Treatment and management of pain by both physicians and institutional
providers can be improved by the threat of tort litigation, which
would spotlight providers’ failures to comply with an emergent
standard of proper pain management. This threat of litigation can be a
powerful incentive to change medical practices.”

This article is also important because it discusses theories on the
liability of improper pain management.

“Pain Management and Provider Liability: No More Excuses”
http://www.painandthelaw.org/aslme_content/29-1/furrow.pdf   


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