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The patient who has experienced unsatisfactory pain management may contemplate several different civil, usually tort, claims, most of which fall under the general rubric of medical malpractice. Depending on the facts of the case and the patient's specific complaint an action may be brought against a care provider for undermedicating, an action that likely would involve a claim that the careprovider negligently failed to adequately medicate the patient or failed to refer the patient to a pain management specialist. In other cases the patient may complain of overmedication or of side effects of the pain medication. In these cases the action might lie not only against the prescribing physicians but also against a pharmacist or pharmaceutical manufacturer. In still other cases the allegation of malpractice may be more indirect, such as where the plaintiff complains not about the quality of the pain management but, for example, that the careprovider failed to acquire his informed consent because of a failure to advise about the risks associated with the treatment or about alternate methods of treatment.

Malpractice Law and Pain Management
A liability analysis of pain management starts with the physician, since it is the physician who fails to prescribe proper medication or to assess and manage patient pain. The liability of physicians is governed by general medical malpractice principles. Malpractice is usually defined as unskillful practice resulting in injury to the patient, which constitutes a failure to exercise the “required degree of care, skill and diligence” under the circumstances (Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970) $[Lexis] $[Westlaw]). A physician is not a guarantor of good results, nor is he or she required to exercise the highest degree of care possible. As one court said, “The physician will not be held to a standard of perfection nor evaluated with benefit of hindsight” (Wainwright v. Leary, 623 So. 2d 233, 237 (La. Ct. App. 1993) $[Lexis] $[Westlaw]).
Barry R. Furrow, Pain Management and Provider Liability: No More Excuses, 29(1) J. LAW, MED. & ETHICS 28, 31 [PDF] (citations omitted)

Malpractice Law in General
FindLaw, Medical Malpractice [HTML]
Court TV Links [HTML]
'Lectric Law Library, Medical Malpractice [HTML]
LII Torts Overview [HTML]

Setting the Standard for Pain Management
The successful prosecution of a medical malpractice claim has usually required the plaintiff to prove that the careprovider has failed to comply with the customary standard of care in the profession. Until recently the relatively immature practice of pain management amongst careproviders has suggested a barrier to malpractice cases, particularly for undermedicating. This situation is poised to change dramatically as pain management becomes an accepted medical practice, as evidenced by state pain polices, accreditation requirements and clinical practice guidelines.
According to Professor Barry Furrow:
The standard of care by which most state courts measure the conduct of both general practitioners and specialists is a national standard. A good statement of this standard is found in Hall v. Hilbun:

The duty of care… takes two forms: (a) a duty to render a quality of care consonant with the level of medical and practical knowledge the physician may reasonably be expected to possess and the medical judgment he may be expected to exercise, and (b) a duty based upon the adept use of such medical facilities, services, equipment and options as are reasonably available (466 So. 2d 856, 872–73 (Miss. 1985) $[Lexis] $[Westlaw]).

Most jurisdictions impose a national standard of care on physicians because of concerns about a “conspiracy of silence,” unfair limitations on the use of experts, and recognition of the national character of medical education and practice. Nonetheless, many jurisdictions allow evidence describing the practice limitations under which the defendant labors. Some jurisdictions explicitly allow the trier of fact to consider the facilities, staff, and other equipment available to the practitioner in the institution where he or she is affiliated.… The standard of care governs a physician’s conduct during the period when the patient was under his or her care; this includes follow-up care to ensure that a patient obtains medical records and information as requested.

Proving negligent pain management is difficult for the plaintiff in light of contemporary failures by the medical profession to practice pain management practices. Traditionally, tort law has allowed the medical profession to set the standards of practice, with the courts enforcing these standards in tort suits. Defendants trying to prove a standard of care normally present expert testimony describing the actual pattern of medical practice, historically without any reference to the effectiveness of that practice. Most jurisdictions give professional medical standards conclusive weight, so that the trier of fact is not allowed to reject the practice as improper. On rare occasions, the courts have allowed the case to proceed in spite of agreement that the defendant satisfied the customary practice of his or her specialty because evidence was presented that the defendant was aware of the dangers in the standard practice (See, e.g., Toth v. Community Hospital, 292 N.Y.S.2d 440, 239 N.E.2d 368, 369 (N.Y. 1968) $[Lexis] $[Westlaw]). Other more recent decisions have found that proof of “ordinary care”can prevail over a defense of compliance with custom (See Nowatske v. Osterloh, 543 N.W.2d 265 (Wis. 1996) $[Lexis] $[Westlaw])."
Barry R. Furrow Pain Management and Provider Liability: No More Excuses, 29(1) J. LAW, MED. & ETHICS 28, 31 [PDF] (citations omitted)