Hostname: page-component-586b7cd67f-l7hp2 Total loading time: 0 Render date: 2024-12-03T19:49:00.156Z Has data issue: false hasContentIssue false
  • English
  • Français

Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act

Published online by Cambridge University Press:  01 January 2021

Sandra H. Johnson
Get access Rights & Permissions [Opens in a new window]

Extract

The problem is pain. Patients and their families tell the story:

He is your son. You love him. You want to help him in every way you can, but when he is in that kind of pain, you are helpless in a sense. Im his daddy. It was-what was I supposed to do for him? I felt, you know, helpless.

It terrifies you. You want to run away from it. Pain is something you wish would kill you but does not. Agony results from the pain that does not have the decency to knock you out.

[W]e had a good family, but how much can you watch? How much suffering can you watch from your child, your 7-year-old child, and still keep your mind?

I am a forty-six-year-old registered nurse who specializes in oncology care and education. I am also a patient who suffers from chronic nonmalignant pain, and this malady has been the most frightening, the most humiliating, and the most difficult ordeal of my life .

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 24 , Issue 4 , Winter 1996 , pp. 319 - 327
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

As quoted in Ferrell, B.R., “The Impact of Pain on Quality of Life: A Decade of Research,” Nursing Clinics of North America, 30 (1995): At 620.Google Scholar
Id.Google Scholar
Id.Google Scholar
Snyder, C.A., “An Open Letter to Physicians Who Have Patients with Chronic Nonmalignant Pain,” Journal of Law, Medicine & Ethics, 22 (1994): At 204–05.CrossRefGoogle Scholar
Research reviewed in Agency for Health Care Policy and Research, Management of Cancer Pain: Clinical Practice Guidelines (Rockville: Dept. Health and Human Services, Pub. No. 94-0592, Mar. 1994): At 4.Google Scholar
Portenoy, R.K., “Therapeutic Use of Opioids: Prescribing and Control Issues,” in Cooper, J.R. Czechowicz, D.J. Molinari, S.P., eds., Impact of Prescription Drug Diversion Control Systems on Medical Practice and Patient Cart (Washington, D.C.: U.S. Government Printing Office, National Institute on Drug Abuse, Research Mono. 131, 1993).Google Scholar
Ferrell, B.A. Ferrell, B.R. Osterweil, D., “Pain in the Nursing Home,” Journal of the American Geriatric Society, 37 (1990): 409.CrossRefGoogle Scholar
Shapiro, B.S. Ferrell, B.R., “Pain in Children and the Frail Elderly: Similarities and Implications,” American Pain Society Bulletin, Oct./Nov. (1992): 1; and Knox, K.H. Samaroo, N. Hoffman, J.R., “Ethnicity as a Risk Factor for Inadequate Emergency Department Analgesia,” JAMA, 269 (1993): 1537–39.Google Scholar
Agency for Health Care Policy and Research, Acute Pain Management: Operative or Medical Procedures and Trauma (Rockville: Dept. of Health and Human Services, Pub. No. 94-0592, Feb. 1992): At 4 (emphasis added). See also, Opinions of the Council on Ethical and Judicial Affairs, American Medical Association, Opinion 2.20 (1994).Google Scholar
Cherny, N.I. Portenoy, R.K., “The Management of Cancer Pain,” Cancer, 44 (1994): At 287; and Melzack, R., “The Tragedy of Needless Pain,” Scientific American, 262, no. 2 (1990): 27–34.Google Scholar
Skelly, F.J., “Painful Barriers,” American Medical News, May 9, 1994, at 15; Skelly, F.J., “Price of Pain Control: Is This the Risk You Face When Appropriately Prescribing Narcotics for Pain?,” American Medical News, May 16, 1994, at 17; and Skelly, F.J., “Fear of Sanctions Limits Prescribing of Pain Drugs,” American Medical News, Aug. 15, 1994, at 19.Google Scholar
See Skelly, (Aug. 15, 1994), id.Google Scholar
Portenoy, R.K., “Opioid Therapy for Chronic Nonmalignant Pain: A Review of the Critical Issues,” Journal of Pain and Symptom Management, 11 (1996): At 204.CrossRefGoogle Scholar
Many narratives by professionals and agencies describe inspections related to the prescription of controlled substances. For a court's description of an investigation of suspected illegal prescriptive practices, see Howard v. Miller, 870 F. Supp. 340 (N.D. Ga. 1994). See also “General Counsel Defends State Medical Licensure Board,” Journal of the Oklahoma State Medical Association, Oct. (1993): 86 (responding to criticism of the board's handling of prescriptive practices cases); Joranson, D.E., “Controlled Substances, Medical Practice and the Law,” in Schwartz, H.I., ed., Psychiatric Practice Under Fire (Washington, D.C.: American Psychiatric Press, 1994): 173-94; and Benton, O., “Innocent Victim of the Drug War?,” American Pain Society Bulletin, Feb. (1993).Google Scholar
Joranson, D.E.et al, “Opioids for Chronic Cancer and Non-Cancer Pain: A Survey of State Medical Board Members,” Federation Bulletin: The Journal of Medical Licensure and Discipline, 79, no. 2 (1992): 15–49.Google Scholar
General Accounting Office, Prescription Drugs and Medicaid—Automated Review Systems Can Help Promote Safety, Save Money (Washington, D.C.: General Accounting Office, May 30, 1996); and Soumerai, S.B.et al, “A Critical Analysis of Studies of State Drug Reimbursement Policies: Research in Need of Discipline,” Milbank Quarterly, 71 (1993): 217-52.CrossRefGoogle Scholar
In the Matter of DiLeo, 661 So. 2d 162 (La. App. 1995).Google Scholar
See id.Google Scholar
Hoover v. Agency for Health Care Administration, 676 So. 2d 1380 (Fla. Dist. Ct. App. 1996).Google Scholar
Sneij v. Department of Professional Regulation, Board of Medical Examiners, 454 So. 2d 795 (Fla. App. 1984).Google Scholar
See id.Google Scholar
See also Hollabaugh v. Arkansas State Medical Board, 861 S.W.2d 317 (Ark. App. 1993); and Williams v. Tennessee Board of Medical Examiners, WL 420910 (Tenn. App. 1994).Google Scholar
See Group Health Plan, Inc. v. State Board of Registration for the Healing Arts, 787 S.W.2d 745 (Mo. App. 1990).Google Scholar
Wiener, R.L. Pound, P.F., Report on State Medical Board Interviews, Project on Legal Constraints on Access to Effective Pain Relief, Dept. of Psychology, St. Louis University (1996).Google Scholar
Project on Legal Constraints on Access to Effective Pain Relief, American Society of Law, Medicine & Ethics, The Pain Relief Act (1996) (as cited in Journal of Law, Medicine & Ethics, 24 (1996): 317-18; see also at http://www.aslme.org).CrossRefGoogle Scholar
See, for example, Federation of State Medical Boards, Report of the Ad Hoc Committee on Physician Impairment (Apr. 1995).Google Scholar
See, for example, United States v. Jones, 570 F.2d 765 (8th Cir. 1978); and United States v. Mahar, 801 F.2d 1477 (6th Cir. 1986).Google Scholar
General Accounting Office, supra note 16; and Soumerai, et al, supra note 16.Google Scholar
Wilford, B.B.et al, “An Overview of Prescription Drug Misuse and Abuse: Defining the Problem and Seeking Solutions,” Journal of Law, Medicine & Ethics, 22 (1994): 197–203; and Shapiro, R.S., “Legal Bases for the Control of Analgesic Drugs,” Journal of Pain and Symptom Management, 9 (1994): 153–59. The scope of this problem is largely undocumented. See Cooper, J.R.et al, “Prescription Drug Diversion Control and Medical Practice,” JAMA, 268 (1992): 1306–10.Google Scholar
See Joranson, D.E., “Intractable Pain Treatment Laws and Regulations,” American Pain Society Bulletin, Mar./Apr. (1995): 1–3, 15–17; and Joranson, D.E., “State Medical Board Guidelines for Treatment of Intractable Pain,” American Pain Society Bulletin, May/June (1995): 1–5. The most well known and comprehensive regulation is California's. See State of California, Summit on Effective Pain Management: Removing Impediments to Appropriate Prescribing (Mar. 18, 1994); and Medical Board of California, “Statement by the Medical Board,” Action Report, 50 (July 1994): 4–5. One of the more recent is the proposed regulation developed by the New Jersey State Board of Medical Examiners. Proposed N.J. Admin. Code tit.13:35-7-6 (1996).Google Scholar
See Wiener, Pound, , supra note 24.Google Scholar
See Group Health Plan, Inc., 787 S.W.2d 745 (discussing the appropriateness of a declaratory judgment action against the board for threats of disciplinary action where no disciplinary action was actually being pursued).Google Scholar
See, for example, Fattah v. State Medical Board of Ohio, 1994 WL 73903 (Ohio App. 1994); Brown v. Louisiana State Board of Medical Examiners, 637 So. 2d 1113 (La. App. 1994); DiLeo, 661 So. 2d 162; and People v. Schade, 32 Cal. Rptr. 2d 59 (Cal. App. 1994).Google Scholar
Furrow, B.R.et al, Health Law (St. Paul: West, 1995): § 3–25a.Google Scholar
Many such organizations are developing guidelines. The Agency for Health Care Policy and Research, a federal agency, has developed several. See, for example, American Pain Society Quality of Care Committee, “Quality Improvement Guidelines for the Treatment of Acute Pain and Cancer Pain,” JAMA, 274 (1995): 1874–80; Crowley, P., “‘No Pain, No Gain?’ The Agency for Health Care Policy and Research's Attempt to Change Inefficient Health Care Practice of Withholding Medication from Patients in Pain,” Journal of Contemporary Health Law and Policy, 10 (1993): 383–403; and Agency for Health Care Policy and Research, supra note 5.Google Scholar
Medical Board of California, “Clinical Practice Guidelines: Cancer Pain Management,” Action Report, 49 (Apr. 1994): 6.Google Scholar
General Accounting Office, Practice Guidelines: The Experience of Medical Specialty Societies (Washington, D.C.: General Accounting Office, 1991).Google Scholar
Joranson, D.E. Gilson, A.M., “Policy Issues and Imperatives in the Use of Opioids to Treat Pain in Substance Abusers,” Journal of Law, Medicine & Ethics, 22 (1994): 215-23. Diagnosis of addiction may depend on the specialty and background of the diagnostician, with pain specialists and addiction specialists reaching different conclusions. See, for example, Savage, S.R., “Pain Medicine and Addiction Medicine—Controversies and Collaboration,” Journal of Pain and Symptom Management, 8 (1993): 254–56. Courts have also had difficulty in interpreting the terms addiction and dependency. See, for example, Schade, 32 Cal. Rptr. 2d 59. But see, Reynolds v. Louisiana State Board of Medical Examiners, 646 So. 2d 1244 (La. App. 1994) (holding that the board's discipline of physician for prescription of controlled substances for persons who were “abusing” was supported by sufficient evidence).CrossRefGoogle Scholar
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); N.D. Cent. Code §§ 19-03.3-01 et seq. (1995); Or. Rev. Stat. §§ 677.470 et seq. (1995); Tex. Rev. Civ. Stat. Ann. art. 4495c (West 1996); and Va. Code Ann. § 54.1-3408.1 (Michie 1995).Google Scholar
See, for example, 1996 Ariz. H.B. 2362; and 1996 N.J. A.B. 1482.Google Scholar
Cal. Bus. & Prof. Code § 2241.5 (West 1994).Google Scholar
Nev. Rev. Stat. § 630.3066 (1995); Or. Rev. Stat. § 677.475 (1995); and Tex. Rev. Civ. Stat. Ann. art. 4495c (West 1996).Google Scholar
Va. Code Ann. § 54.1-3408.1 (Michie 1995).CrossRefGoogle Scholar
Fla. Stat. Ann. § 458.326 (West 1995).Google Scholar
Nev. Rev. Stat. § 630.3066 (1995).Google Scholar
Cal. Bus. & Prof. Code § 2251.5(b) (West 1994). See also Or. Rev. Stat. § 677.470(2) (1995).Google Scholar
N.D. Cent. Code § 19-03.3-05 (1995); Tex. Rev. Civ. Stat. Ann. art. 4495c (West 1996); and Cal. Bus. & Prof. Code § 2241.5 (West 1994).Google Scholar
See, for example, Mo. Stat. § 334.106(3) (Vernon 1995) (but see § 334.101(d)(4), providing that “drug dependency” is not a sufficient reason for withholding pain medication); Tex. Rev. Civ. Stat. Ann. art. 4495c(6)(b) (West 1996); N.D. Cent. Code § 19-03.3-05 (1995); and Cal. Bus. & Prof. Code § 2241.5(e) (West 1994).Google Scholar
Or. Rev. Stat. § 677.485 (1995).Google Scholar
See, for example, Post, L.F.et al, “Pain: Ethics, Culture, and Informed Consent to Relief,” Journal of Law, Medicine & Ethics, 24 (1996): At 348 n.1.CrossRefGoogle Scholar
See, for example, Del. Code Ann. tit. 16, §§ 2505, 2510 (Michie Supp. 1996); Ohio Rev. Code Ann. § 2133.12(E)(1) (Baldwin 1994); Va. Code Ann. § 54.1-2984 (Michie 1995). But see Md. Health-Gen. Code Ann., § 5-603 (Michie Supp. 1996) (providing an option on the advance directive form to allow the patient to direct that pain medication not be given if it would shorten the patient's life).Google Scholar