Same Day Multiple Prescriptions
 Why is Our Government Pursuing a War on Doctors?

Free Electronic Newsletter

The torts system regulates care provider conduct that directly implicates the quality of care. In context of palliative care that may translate to allegations of medical malpractice for undermedicating, failure to refer or overmedicating. The law of medical malpractice also imposes a duty on medical professionals to inform patients regarding medical risks associated with treatment or non-treatment. As Barry Furrow has remarked, "[t]oday, failure to discuss pain management options and the possibility of referral or transfer might well appear as a count in the patient’s malpractice complaint for pain mismanagement." Barry R. Furrow, Pain Management and Provider Liability: No More Excuses, 29(1) J. LAW, MED. & ETHICS 28, 36 [PDF]

Obviously, pain management issues frequently coincide with other controversial and legally difficult end-of-life care issues. There may be overlap, therefore, in some cases between unconsented-to treatment and withdrawal of treatment issues.
Most pain management, particularly end-of-life, issues implicate patient choice. As a result questions arise as to how effectively our legal (see e.g., Marjorie Maguire Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985) $[Lexis] $[Westlaw]) and ethical (see e.g., Robert M. Veatch, Abandoning informed consent, Vol. 25, No. 2, HASTINGS CENTER REP. 51995, Mar. 1, 1995) structures protect patient choice.
Informed consent case law highlights the considerable differences that exist between different jurisdictions as to the reach of the informed consent duty.