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Painful Truths


The session “Ethical and Legal Issues around Pain Management in Hospitalized Patients” shed light on issues that many hospitalists are aware of but perhaps not well versed in.

Speaker Vijay Rajput, MD, FACP, associate professor of medicine at the University of Medicine and Dentistry of New Jersey (UMDNJ), Robert Wood Johnson Medical School, and Cooper University Hospital, Camden, N.J., covered the many conflicts surrounding pain management, the law, and your conscience.

Hard Facts

Dr. Rajput shared what he called “hard facts” on pain medication, which include:

  • 90% of cancer pain can be controlled with available options;
  • 70% of the time chronic, nonmalignant pain is poorly managed, especially in nursing homes;
  • 11% of admissions in the emergency department seek treatment for a chronic pain condition;
  • 8.2% of, or 19.5 million, Americans use an illicit drug at least once a month; and
  • 31.2 million reported non-medical use of pain relievers including hydrocodone (Vicodin), acetaminophen and hydrocodone (Lortab), oxycodone (Percocet), and others.

Dr. Rajput discussed barriers that lead to undertreatment of pain in hospitalized patients.

“There may be prioritization of diagnosis over pain relief by surgical colleagues on hospitalized patients,” he said. “There are also inadequacies in assessing pain, educational deficiencies, and cultural challenges. Some physicians are ruled by regulatory and ethical concerns in prescribing for pain.”

Without ongoing education, senior physicians risk providing less, not more, pain control
—Vijay Rajput, MD, FACP, associate professor of medicine at University of Medicine and Dentistry of New Jersey (UMDNJ), Robert Wood Johnson Medical School, and Cooper University Hospital, Camden, N.J.

Pain Management and the Law

There are several legal concerns regarding pain management that most physicians are aware of. In addition to liability for repercussions of undermedicating or overmedicating, the failure to refer a patient to a pain management specialist, the use of opioids when caring for end-of-life patients, and failure to get informed consent related to risk of treatment can all mean malpractice suits.

“The general rule for avoiding a malpractice charge is to follow national standards of care and any applicable clinical practice guidelines,” said Dr. Rajput. “There are Web-based databases that serve as national guidelines clearinghouses that you can refer to.”

The Ethical Side of Pain

“There are few common domains of ethical and legal issues in pain relief,” stated Dr. Rajput. These include the pain issues around end-of-life and palliative care of terminally ill patients, a subordination of pain relief to diagnosis, chronic pain issues and substance abuse, pain control in a patient’s transfer to a nursing home, and the risk of discontinuity of pain control after discharge.

“The ethical duty to relieve pain is well established,” Dr. Rajput said. Despite this, it is still common to subordinate pain relief to diagnosis. In 2003, the American Journal of Surgery stated, “Analgesia should be given prior to diagnosis only with the knowledge and consent of the surgeon who assumes the responsibility for decision-making.”

This “decision-making” can affect hospitalists because 86% of ED physicians follow this literature, and 89% of surgeons still prefer to hold the pain medication prior to surgical evaluation.

“Without ongoing education, senior physicians risk providing less, not more, pain control,” Dr. Rajput pointed out. “This will become more critical as we are co-managing more and more surgical patients in hospitals.”

What about End-of-Life Care?

The legal case of Estate of Henry James v. Hilhaven Corp. established that healthcare facilities have a duty to treat pain. However, Dr. Rajput stressed, patients, families, and physicians all remain confused about the role of opioids in caring for dying patients.

Dr. Rajput reviewed two cases where physicians were sued for undertreatment or negligent treatment of pain, and 11 cases where physicians were sued for administering medications that resulted in the deaths of terminally ill patients.

In a criminal prosecution involving the care of the dying, Dr. Rajput explained, the basic elements must be proved: There must be a criminal act, and that act must be intentional. Acts involving terminal pain are not investigated unless a nurse, supervisor, or ethics committee is informed. Nurses are the most common informants.

“Almost all cases are in hospital settings,” said Dr. Rajput. “And there are three major categories: withdrawal of life-sustaining support with accompanying pain meds, the use of opioids and sedations, and terminal care that includes the use of fatal agents such as insulin, potassium chloride, and chloroform.”

In 1997, the Supreme Court endorsed terminal sedation as an alternative to physician-assisted suicide, intensifying the legal debate in the so-called right-to-die controversy.

“Long before the Supreme Court intervention,” said Dr. Rajput, “terminal sedation was a palliative care option to relieve physical or non-physical pain, or to produce an unconscious state before the withdrawal of life support.”

There are clinical safeguards for terminal sedation. These include ensuring the effectiveness of palliative care, obtaining fully informed consent from the patient, maintaining diagnostic and prognostic clarity with respect to the patient’s disease and lifespan, obtaining an independent second opinion, and providing documentation and review.

Double Effect and Futility

In the “rule of double effect” in palliative care (or providing treatment to relieve suffering even though a foreseeable, unintended consequence of that treatment is to hasten death), the difference between permissible and prohibited action relies heavily on the clinician’s intent, Dr. Rajput pointed out.

He quoted the article “The Rule of Double Effect—A Critique of the Rule in End-of-Life Decision-Making,” saying, “A proportionately good effect (relief of suffering) may overcome a foreseeable bad effect (causing death) … as long as the actor does not intend to accomplish the bad effect.”

Another concept—medical futility—leads to three conceptual possibilities at end-of-life care:

  • The treatment does not provide positive effects;
  • The radical treatment has side effects that outweigh any positive effect; or
  • It is futile to treat a disease when the patient is suffering from a more real-time, life-threatening disease.

In the event of physiological futility, a physician can withhold the treatment modality on the basis of having no effect on patient care, Dr. Rajput explained. But the decision needs to meet professional standards, and the physician must inform the patient and his or her family and give them an opportunity to seek a second opinion.

But what if there is no physiological futility?

“If it’s a matter of the appropriateness of sustaining a severely deteriorated life,” said Dr. Rajput, “then the scope of professional judgment is limited. This should not be a unilateral medical judgment.” You must include the patient and their family in decision-making, and you may want to consult with your hospital ethics committee.

“The bottom line is, futility is an elusive concept,” said Dr. Rajput. “The term is used more to make value-laden judgments,” He added, “Avoid the word ‘futility’ in communication and documentation. It can stop conversation.” Rather, communicate your

goals of care and treatments.

To determine those goals, your clinical ethical reasoning should follow these steps:

  • State the problem plainly;
  • Gather and organize the data;
  • Consider the patient’s goals and preferences;
  • Ask if this is an ethical problem;
  • Ask if more information or dialogue is needed; and
  • Determine the best course of action and support your position.

The complete PowerPoint presentation of “Ethical and Legal Issues around Pain Management in Hospitalized Patients” is available on the SHM Web site at TH

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