Hostname: page-component-848d4c4894-tn8tq Total loading time: 0 Render date: 2024-06-26T09:12:41.419Z Has data issue: false hasContentIssue false
  • English
  • Français

Health Care Providers' Liability Exposure for Inappropriate Pain Management

Published online by Cambridge University Press:  01 January 2021

Robyn S. Shapiro
Get access Rights & Permissions [Opens in a new window]

Extract

Recent studies have exposed the startling inadequacy of health care providers knowledge about and practice of effective pain management. For example, in one study, it was reported that 79 percent of a random sample of 454 medical-surgical inpatients experienced pain during hospitalization, and that 58 percent of patients with pain considered the pain horrible or excruciating. In another study, 67 percent of 2,415 randomly selected hospitalized patients had pain during the twenty-four hours prior to being interviewed, and 50 percent reported pain at the time of the interview. In a study of seriously ill hospitalized patients reported in 1996, half of the patients complained of pain, and one-sixth reported that they experienced extremely severe pain at least half the time. According to one literature review, 75 percent of cancer patients have reported suffering pain, and one study estimates that 25 percent of cancer patients die with severe unrelieved pain. Chronic nonmalignant pain has been described as an extremely prevalent problem, and over two-thirds of nursing home residents experience serious pain.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 24 , Issue 4 , Winter 1996 , pp. 360 - 364
Copyright
Copyright © American Society of Law, Medicine and Ethics 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Donovan, M. Dillon, P. McGuire, L., “Incidence and Characteristics of Pain in a Sample of Medical-Surgical Inpatients,” Pain, 30 (1987): 69–78.CrossRefGoogle Scholar
Abbott, F.V.et al, “The Prevalence of Pain in Hospitalized Patients and Resolution Over Six Months,” Pain, 50 (1992): 15–28. See also Marks, R.M. Sachar, E.J., “Undertreatment of Medical Inpatients with Narcotic Analgesics,” Annals of Internal Medicine, 78 (1973): 173-81 (32 percent of inpatients treated with opioid analgesics for pain continued to experience severe distress and an additional 41 percent were in moderate distress); Foley, K.M., “Pain, Physician-Assisted Suicide and Euthanasia,” Pain Forum, 4 (1995): 163-78; Breitbart, W., “Suicide Risk and Pain in Cancer and AIDS Patients,” in Chapman, C.R. Foley, K.M., eds., Current and Emerging Issues in Cancer Pain: Research and Practice (New York: Raven Press, 1993): 49; and Breitbart, W. Part, R., “Pain Management in the Patient with AIDS,” Pain Management, 2 (1994): 391.Google Scholar
Desbiens, N.et al, “Pain and Satisfaction with Pain Control in Seriously Ill Hospitalized Adults: Findings from the SUPPORT Research Investigations,” Critical Care Medicine, 24 (1996): 1953-61.CrossRefGoogle Scholar
Research reviewed in Agency for Health Care Policy and Research, Management of Cancer Pain: Clinical Practice Guidelines (Rockville: Dept. of Health and Human Services, Pub. No. 94-0592, 1994).Google Scholar
Daut, R. Cleeland, C., “The Prevalence and Severity of Pain in Cancer,” Cancer, 50 (1982): 1913-18.3.0.CO;2-R>CrossRefGoogle Scholar
Portenoy, R.K., “Therapeutic Use of Opioids: Prescribing and Control Issues,” in Cooper, J.M.et al, eds., Impact of Prescription Drug Diversion Control Systems on Medical Practice and Patient Care (Washington, D.C.: U.S. Government Printing Office, National Institute on Drug Abuse, 1993): 35–50.Google Scholar
Ferrell, B.A. Ferrell, B.R. Osterwall, D., “Pain in the Nursing Home,” Journal of the American Geriatric Society, 38 (1990): 409.Google Scholar
Foley, K.M., “Treatment of Cancer Pain,” N. Engl. J. Med., 313 (1985): 84–95. See also Melzack, R., “The Tragedy of Needless Pain,” Scientific American, 262 (1990): 27–33; and Cleeland, C.et al, “Pain and Its Treatment in Outpatients with Metastatic Cancer,” N. Engl. J. Med., 330 (1994): 592-96.CrossRefGoogle Scholar
Ground, S.et al, “Validation of World Health Organization Guidelines for Cancer Pain Relief During the Last Days and Hours of Life,” Journal of Pain and Symptom Management, 6 (1991): 411-22.Google Scholar
Jacox, A. Carr, D. Payne, R., “New Clinical-Practice Guidelines for the Management of Pain in Patients with Cancer,” N. Engl. J. Med., 330 (1994): 651-55.Google Scholar
Keeton, W.et al, Prosser & Keeton on the Law of Torts (St. Paul: West, 5th ed., 1984): At 164.Google Scholar
Estate of Henry James v. Hillhaven Corp., Super. Ct. Div. 89CVS64, Hertford County, N.C. (Nov. 20, 1990).Google Scholar
Angarola, R., letter, “Inappropriate Pain Management Results in High Jury Award,” Journal of Pain and Symptom Management, 6 (1991): 407.Google Scholar
Id.Google Scholar
Id.Google Scholar
Motions Hearing Transcript, Estate of Henry James v. Hillhaven Corp., Super. Ct. Div. 89CVS64, Hertford County, N.C. at 41 (Nov. 20, 1990).Google Scholar
See Angarola, , supra note 13.Google Scholar
State v. McAfee, 259 Ga. 579, 385 S.E.2d 651 (1989).Google Scholar
Id. at 652.Google Scholar
See also Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 1145, 225 Cal. Rptr. 297, 306 (1986), wherein the court held that the patient's right to refuse medical treatment entitled her to the immediate removal of her nasogastric tube and that “the hospital and medical staff are still free to perform a substantial, if not greater part of their duty, i.e., that of trying to alleviate Bouvia's pain and suffering.”Google Scholar
Public Health Service Act, § 901(b), 42 U.S.C. § 299(b) (Supp. 1993).Google Scholar
§ 912(a)(1)-(2), 42 U.S.C. § 299b-1(a)(1)-(2).Google Scholar
Agency for Health Care Policy and Research, Clinical Practice Guideline for Acute Pain Management: Operative or Medical Procedures and Trauma (Rockville: Agency for Health Care Policy and Research, Pub. No. 92-0032, Feb. 1992).Google Scholar
Agency for Health Care Policy and Research, Management of Cancer Pain: Clinical Practice Guideline 9 (Rockville: Agency for Health Care Policy and Research, Pub. No. 94-0592, 1994).Google Scholar
Davenport v. Ephraim McDowell Memorial Hospital, 769 S.W.2d 56 (1989).Google Scholar
Rodriguez v. Jackson, 118 Ariz. 13, 574 P.2d 481 (1977).Google Scholar
Cornfeldt v. Tongen, 262 N.W.2d 684, 704 (Minn. 1977).Google Scholar
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 529, 113 S. Ct. 2786 (1993).Google Scholar
Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).Google Scholar
113 S. Ct. at 2795.Google Scholar
Vt. Stat. Ann. tit. 12, § 7003 (1993).Google Scholar
Me. Rev. Stat. Ann. tit. 24, § 2975 (West 1993).Google Scholar
See, for example, Cal. Bus. & Prof. Code § 2241.5 (West 1994); Fla. Stat. Ann. § 458.326 (West 1995); Mo. Ann. Stat. §§ 344.105 et seq. (Vernon 1995); Nev. Rev. Stat. § 630.3066 (1995); N.D. Cent. Code §§ 19-03.3-01 et seq. (1995); Or. Rev. Stat. §§ 677.470 et seq. (1995); Texas Rev. Civ. Stat. Ann. art. 4495c (West 1996); and Va. Code Ann. § 54.1-3408.1 (Michie 1995).Google Scholar
Cent, N.D. Code §§ 19-03.3-01 et seq. (1995); and Texas Rev. Civ. Stat. Ann. art. 4495c (West 1996).Google Scholar
Nev. Rev. Stat. § 630.3066 (1995); and Fla. Stat. Ann. § 458.326 (West 1995).Google Scholar
Or. Rev. Stat. §§ 677.470 et seq. (1995).Google Scholar
Project on Legal Constraints on Access to Effective Pain Relief, American Society of Law, Medicine & Ethics, § 3.1 (1996).Google Scholar
Skelly, F.J., “Fear of Sanctions Limits Prescribing of Pain Drugs,” American Medical News, Aug. 15, 1994, at 19.Google Scholar
Portenoy, R.K., “Opioid Therapy for Chronic Nonmalignant Pain: A Review of Critical Issues,” Journal of Pain and Symptom Management, 11 (1996): At 204.CrossRefGoogle Scholar
It should be noted that the Pain Relief Act may contribute to a movement that is already underway, in that several states have enacted pain statutes and others are considering statutes. See, for example, Cal. Bus. & Prof. Code § 2241.5 (West 1994); Fla. Stat. Ann. $ 458.326 (West 1995); Mo. Ann. Stat. §§ 334.105 et seq. (Vernon 1995); Nev. Rev. Stat. § 630.3066 (1995); Or. Rev. Stat. §§ 677.470 et seq. (1995); Texas Rev. Civ. Stat. Ann. art. 4495c (West 1996); and Va. Code Ann. § 54.1-3408.1 (Michie 1995).Google Scholar
Tinetti, M.E.et al, “Mechanical Restraint Use Among Residents of Skilled Nursing Facilities: Prevalence, Patterns and Predictors,” JAMA, 265 (1991): 468-71.CrossRefGoogle Scholar
See Kapp, M.B., “Nursing Home Restraints and Legal Liability,” Journal of Legal Medicine, 13 (1992): 1–32 (citing Kusserow, R., Resident Abuse in Nursing Homes: Undertaking and Preventing Abuse (Washington, D.C.: U.S. Dept. of Health and Human Services, Office of the Inspector General, Office of Evaluations and Inspections, Report OEI 06-88-00360, Apr. 1990): App. B, at 4; and Pillemer, K. Moore, D., “Abuse of Patients in Nursing Homes: Findings from a Survey of Staff,” Gerontologist, 29 (1989): 314).CrossRefGoogle Scholar
See Kapp, , supra note 42 (citing Burger, S., “Inappropriate Use of Chemical and Physical Restraints: An Ombudsman's Resource Paper for Effective Advocacy” (1989) (prepared by the National Citizens' Coalition for Nursing Home Reform for the National Center for State Long Term Care Ombudsman Resource Center, Washington D.C.)).Google Scholar
See Kapp, , supra note 42.Google Scholar