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Increased Liability For Under Prescribing Will Not Improve Pain Management

By David B. Brushwood, R.Ph., J.D.
Professor of Pharmacy Health Care Administration
The University of Florida

In recent years there have been a tiny few successful lawsuits against doctors who have allegedly under-prescribed opioid analgesics for patients in pain. Some individuals and groups advocating for improvements in pain management have welcomed these lawsuits and have used them to threaten doctors who may be too conservative in their prescribing of opioids. The not-so-subtle message is that doctors should treat pain aggressively or risk being held liable for under prescribing. Pain advocates hope that the threat of liability will improve the quality of pain management.

The lawsuits have been based on either elder abuse or medical negligence. While perhaps appropriately brought by patients against their doctors to correct an injustice within that relationship, these lawsuits will not produce a reform in the health care system. The system “sets up” doctors to fail in their provision of adequate pain relief to their patients. Singling out under-prescribing doctors for liability is unfair because doctors are not the only culpable parties when pain is under-treated, and it is ineffective because it does nothing to remedy the underlying system defects. Threatening doctors with legal liability will not improve the quality of pain management in America.

The defective system works this way:

• Doctors are taught virtually nothing about pain management in medical school. This was absolutely true in the past and is a qualified truth for the present. Despite considerable brave talk and several noteworthy exceptions, the future of comprehensive pain management education appears grim unless a significant commitment to change is made.
• Residency training adds little knowledge or skill to a doctor’s pain management resume. The standard advice is to “start low” (so low there is little or no analgesia) and “go slow” (so slow there never will be analgesia).
• Most pain management CME is unproductive. It is mostly about “telling,” a bit about “showing,” but rarely is there any “doing.” Anyone who can sit still for a few hours and fog a mirror at the end receives credit for successful completion.
• New rules from various agencies arrogantly mandate greater attention to pain management, but the agencies do no advocacy with insurance companies that refuse payment for adequate pain management, and they do not address staffing shortages that often make it impossible to do pain management well.
• Many patients (and their families) fear “narcotics” because they have been told that only weak-willed people use them and that there is an inevitable free-fall down the slippery slope from the issuance of one hydrocodone/acetaminophen prescription to hopeless drug abuse and addiction.
• Enlightened regulators adopt guidelines that they hope will be a “safe harbor” for legitimate pain medicine, shielded from irrational regulatory oversight, but these guidelines have the opposite effect. They are useless in clinical practice but priceless as a list of “gotchas” when unenlightened regulators target heavy opioid prescribers.
• Law enforcement personnel who detect diversion problems in a doctor’s practice rarely consult early on. Instead they conduct discreet surveillance, waiting for a small problem to become a large one. Then they swoop in with swat teams and attendant media coverage. They overcharge doctors with crimes that were not committed and they dismiss the charges years later with no apology.
• So-called “expert witnesses” gladly accept hundreds of dollars per hour to second guess their colleagues’ clinical judgment, helping the police build an irrelevant records case against other doctors, by finding fault with the drugs their colleagues prescribed, the doses they used, and the frequency of their prescribing.

Within such a system, it is no wonder that some doctors adopt covert or overt policies against the use of opioids for pain. It is tragic and shameful for this to happen, but it is understandable. The doctors have been set up to fail by the flawed system.

Threatening doctors with legal liability for under prescribing pain medications will not fix the underlying system problems. But the simplicity of threatening legal liability has tremendous appeal. Just like threatening to spank a child who brings home an unsatisfactory report card. Perhaps threatening liability feels good over the short term, perhaps it looks good to those who value form over substance, but no good is being done for pain management.

The threat of liability for under treating pain will not produce a rational, consistent, caring response from doctors. There are too many other variables affecting the quality of pain management. In fact, the inconsistency of tort liability will make things worse. Because tort standards are developed on a case-by-case basis through polarized advocacy, rather than negotiated deliberation, doctors will be forced to guess what the tort standard might become and then adopt practices that they hope will hit this moving target. The purpose of tort liability is to compensate victims, not establish comprehensive public health policy.

No good will come to the pain management movement from expansions in liability for under treating pain. The trial lawyers can’t solve this problem. Blaming a single doctor for the problems of an entire system is both unjust and ineffective. We are all to blame when a patient’s pain is under treated. We must all work harder to solve this terrible problem.

What must we do?

• Develop interdisciplinary, comprehensive pain management education. Students in medicine, nursing, pharmacy, and dentistry must learn together their mutual responsibilities for pain management and steps to take in diversion prevention. Every case study used in basic education should incorporate a relevant pain management component.
• Implement mini residencies for law enforcement personnel to teach them that pain management is not about drugs, it is about people who suffer and who seek caring, respectful medical treatment so they can simply go about their activities of daily living.
• Require skills demonstration as a condition of CME participation. All doctors should be able to assess pain, select an appropriate treatment—pharmaceutical or non-pharmaceutical, titrate to effect without adverse effects, convert from one drug to another, manage adverse effects, recognize the disease of addiction, and prevent drug diversion.
• Help the media understand that there is an epidemic of untreated and under treated pain. Show them how to teach the public that pain can be managed without a significant risk of addiction. The “hillbilly heroin” story is old news.
• Cooperate with law enforcement in an “early consult” when a doctor is suspected of being duped into inappropriate prescribing. This should be a fair but firm colleague-to-colleague explanation of the dangers of drug diversion, the methods to prevent it while continuing to meet the needs of patients, and the consequences of failing to be vigilant.
• Make a clear distinction between criminal misconduct outside the practice of medicine and malpractice within medicine. Stop testifying that colleagues have occasionally failed to use the best professional judgment and therefore should be found guilty of a crime. Nobody is consistently at their best and it is not a crime to be adequate but less than the best.

Everyone who practices any health care profession is responsible for meeting the standard of care. When there is a bad outcome from care, health care professionals should be held accountable. If the accounting is inadequate, then they should be held liable. Corrective justice requires that one who is at fault for harm caused to another provide compensation to the harmed party. Those who provide medical services and products to patients in pain should be held to the relevant standard. But a finding of individual liability does nothing to promote comprehensive improvements in the quality of care. It is not even a step in the right direction. This is a difficult problem that defies simple solutions. The small number of settlements and judgments of liability for under treating pain over the past several years are outliers. They do not constitute even the hint of a legal trend and they should not be used to coerce desired behavior from those responsible for providing services and products to patients.

For decades doctors, nurses and pharmacists have been frightened into doing the wrong thing for their patients. The paranoia this has produced has caused unnecessary suffering by patients. Health care providers cannot now be frightened into doing the right thing. If you put a frightened doctor, nurse or pharmacist into a dysfunctional system, the system will win every time. What is needed is system change, not frightening threats of legal liability.

Note: This commentary is adapted with permission from a commentary in Pain Medicine, Brushwood, D., “Comment: The Debate on Elder Abuse for Under Treated Pain,” Volume 5, Issue 2, Page 218 (June, 2004).