Failure to Provide Adequate Pain Relief

Question

Is a physician under any threat of a civil malpractice lawsuit for not providing pain relief to a patient?

Response from David B. Brushwood, RPh, JD Professor, University of Florida College of Pharmacy, Gainesville, Florida

There is hardly any risk of liability for malpractice based on the failure to provide patients with adequate pain relief, despite almost universal recognition that standards of practice require the provision of adequate pain relief. Patients in pain are being untreated and undertreated, even though safe and effective drugs are readily available. Two highly respected scholars in the field of pain management and legal liability have both concluded that the principles of liability could support malpractice by a physician who undertreats pain, but neither expert could reference a single reported precedential legal opinion in which liability under such circumstances has actually been recognized. Barry Furrow concludes that "a convergence of forces is now building pressure on health-care providers to incorporate pain management into their practices." Ben Rich suggests that a "patient should have little difficulty producing an expert in the field of pain management who will testify that the most important distinction between palliative care provided by the pain service and that provided by the defendant physician is that the former was consistent with the AHCPR [Agency for Health Care Policy and Research] clinical practice guidelines, while the latter was not." However, the transition from theory to liability cannot be made in either of these excellent studies from the early part of this decade, and the intervening years have produced no firm recognition of actual liability from the annals of litigation.

Knowing that pain management is often practiced below the applicable standard of care and that there is no firm precedent for finding practitioners liable for malpractice suggests that there must be strong defenses for a physician who does not treat pain when treatment is indicated. Those defenses can be found in federal and state laws that emphasize the need to avoid pain management when it is inappropriate and prevent drug diversion at all costs and which de-emphasize the need to provide pain management when it is appropriate. A physician accused of malpractice for the undertreatment of pain can successfully point to the legal disincentives for controlled substance prescribing. There are many good reasons for physicians to provide adequate pain management to patients who need it, but fear of legal liability is not one of them.