COVER ARTICLE


Grandma's Pain
Should claims of under-medication arise in new theories of elder abuse statutes or traditional medical malpractice negligence?
By Timothy McIntire, M.D., J.D.

Society’s debate concerning physician-assisted suicide has exposed the problem of inadequate pain management for the elderly and the terminally ill. Specifically, studies since the early 1990s have highlighted the problem of under-medication in elderly and terminally ill patients. [1] The dynamic tension between inadequately medicating patients suffering from chronic pain and the need to control illegal narcotic availability has put pain management in the forefront of medicine and law. Interestingly, confusion defining a pain management standard of care has attorneys wondering whether claims against physicians for the under-treatment of chronic pain should arise in the new theories of elder abuse statutes or should simply be an extension of the more traditional medical malpractice negligence suits.

Although not often discussed in the legal literature, medical quality of care issues often influence the establishment and maintenance of the legal standard of care physicians owe their patients. Historically, half of the patients who die from cancer suffer similar symptoms, including pain, labored breathing, distress, nausea, confusion and other physical and psychological conditions that go untreated or under-treated. [2] Such is a quality-of-care issue organized medicine is currently addressing. Attorneys dealing in the under-treatment of pain arena should be able to understand these medical quality-of-care issues and how they affect the legal standard of care surrounding the treatment of intractable pain in the elderly.

Elder abuse may be defined in terms of abuse or neglect. As such, a typical state statute concerning elder abuse and neglect may define these terms in two main ways. First, some states characterize elder abuse as either a willful act that is likely to cause physical, mental or emotional harm to an elderly adult, or as the failure to provide the services necessary, including health care services, which a prudent caregiver would provide to an elderly adult in similar circumstances.[3] Second, states may also define elder abuse as the willful physical abuse or gross neglect of an “impaired adult” with resulting serious mental or physical harm that may be punishable as an aggravated assault.[4]

Physicians and attorneys alike should note that the liability for elder abuse often involves the acts of a caretaker. As such, many statutes define a caretaker as “an individual or institution who has the responsibility for the care of an adult as a result of family relationship, or who has assumed the responsibility for the care of the adult person voluntarily, or by contract, or agreement.” [5] Thus, it is not inconceivable that, in light of a broad statutory definition of a caretaker, many states might include physicians as caretakers in the eyes of the law. In this regard, a physician caretaker who provided inadequate pain management to an impaired adult, that in turn caused serious physical harm to that adult, could be held accountable under both the civil elder abuse laws and the criminal statutes of aggravated assault.

Elder abuse statutes: Are they all alike?
Not surprisingly, all elder abuse statutes are not created equally. A survey of one’s specific state statutes and case law may be helpful prior to initiating an elder abuse action. For example, in Arkansas, abuse of an adult includes “any willful or negligent act which results in neglect … unreasonable physical injury … and failure to provide necessary medical treatment … or medical services.”[6] Further, the adult abuse statutes declare that it is specifically unlawful for “any person or a caregiver to abuse or neglect” an adult.[7] Conversely, while Tennessee recognizes many of the typical elder abuse statutes found in other jurisdictions, a monetary recovery of damages against a physician when a Tennessee elder abuse statute is violated is often limited through the use of a traditional medical malpractice claim.[8] This does not, however, preclude the victim of elder abuse from holding her physician responsible for his acts under the elder abuse statutes. For example, other than the civil money damages that can only be obtained via the medical malpractice statutes, there are two important avenues available to Tennessee clients in addressing complaints against their physicians: (1) criminal remedies, and (2) State Board of Medical Examiners remedies (which may limit or revoke the physician’s license to practice medicine). [9] As claims arising from the lack of palliative care grounded in elder abuse statutes continue to increase, the likelihood of claims involving traditional elder abuse statutes and criminal sanctions also will increase in all states.

For the protection of physicians and clients alike, many states have adopted specific palliative care and intractable pain management statutes or regulations. [10] While the need to limit patient narcotic abuse is still present, many states realize this need must be balanced with guidelines for the treatment of the elderly and the terminally ill suffering from intractable pain. As such, many states emphasize concerns involving narcotics in both the addiction aspect and the treatment of pain in the elderly and the terminally ill. [11] Consequently, it follows that such guidelines would help in establishing a legal standard of care in the treatment of elderly and terminally ill patients suffering from intractable pain.

Negligence, and in the alternative, abuse or neglect
Addressing pain management in the elderly and the terminally ill is important to attorneys for two reasons. First, historically physicians often have not adequately treated intractable chronic pain in patients due to a legitimate fear of state medical board discipline from over-medicating patients with pain symptoms. Second, attorneys have begun to bypass medical malpractice remedies in lieu of the recent trend using elder abuse statutes as the legal theory to hold physicians responsible for the inadequate treatment of pain in elderly and terminally ill patients. Interestingly, both of these precedents appear to be changing.

As to the traditional claim regarding physician under-treatment of intractable pain, most states’ legislatures and medical licensing boards have adopted intractable pain laws and medical protocols to treat patients suffering from debilitating chronic pain.[12] Specifically, these statutes and medical protocols outline a standard of care, finding that “the medical management of pain should be based upon current knowledge and research and includes the use of both pharmacologic and non-pharmacologic modalities. Pain should be assessed and treated promptly and the quantity and frequency of [medication] doses should be adjusted according to the intensity and duration of pain.” [13] This policy statement, in and of itself, establishes the foundation from which physicians and state licensing agencies can build a medical standard of care. In light of these recent pain management protocols, patients and plaintiff attorneys may rely less and less on elder abuse and neglect claims, most of which require a willful or reckless state of culpability. Consequently, liability in negligence may again be seen as the gold standard in enforcing patients’ rights to adequate pain relief from chronic diseases. All the more reason for attorneys to sue in negligence and not via the more complicated reckless standard seen in the elder abuse avenue.

As to the attorney’s decision to bring an elder abuse claim versus the more traditional medical malpractice claim, four main points should be considered:

(1) expert medical testimony would be needed for both, as such, an attorney proving a reckless standard allowing for recovery under the elder abuse claim should also be able to prove the lesser negligence regarding a claim of medical malpractice[14]

(2) many state boards of medicine have recently adopted medical protocols for the treatment of patients suffering from chronic pain, therefore, the claim that there is not a standard of care in this area can no longer be sustained;

(3) if a plaintiff-patient could convince a jury that a defendant-physician was liable for reckless pain management care that rose to the level of elder abuse, then the plaintiff-patient should more easily be able to convince that same jury that the defendant-physician also was liable for the lesser culpable standard of negligence; and

(4) as physicians’ liability insurance is often seen as a deeper pocket than the physicians’ personal assets alone, a claim in negligence that is covered by liability insurance is more economically attractive than a reckless claim falling outside of any liability insurance coverage.

Most importantly, though, is the recognition that if one can prove the reckless standard needed for liability under the elder abuse laws, then one should also be able to prove the lesser standard of negligence. This recognition correctly infers that future elder abuse claims against physicians may be more effectively brought by the traditional medical malpractice actions. Plaintiff recovery from physician neglect concerning the treatment of intractable pain should be easier under the lesser negligence standard.

How quality of care can affect the standard of care
The medical community has long indoctrinated its physicians with caution in the use of narcotic therapy for pain relief. [15] As this article outlines, however, the medical community has only recently recognized its deficiencies in treating patients with intractable pain, and part of this recognition has been facilitated by liability physicians have suffered from violating elder abuse statutes. In short, some medical societies and state licensing boards have been slow in adapting their mores, regulations and policies to allow for adequate pain relief in the elderly and the terminally ill. Nevertheless, the recent changes in pain management reflected by the many medical protocols established for the treatment of those suffering from chronic pain will assist in defining a national and local standard of care. [16] For example, the National Foundation for the Treatment of Pain recommends some essential considerations in the treatment of chronic, intractable pain by highlighting pharmacological methods of treatment. [17] The foundation’s protocols call for the correct medicine and dose to be selected, and that the pharmacologic risks, including side-effects, be carefully monitored and weighed against the benefits. [18] For proper pain medications to be utilized in treating chronic pain, the most serious considerations are for excessive sedation, severe constipation, and under-dosage. If the patient is not fully and adequately relieved of the pain, then the treatment is inadequate. Physicians must, therefore, choose a medicine strong enough so that excessive numbers of pills are not required to accomplish pain relief. [19]

Similarly, physicians and attorneys are beginning to recognize that health care quality indicators are needed to help define the appropriate standard of care in patients suffering from chronic pain. These quality indicators serve two distinct purposes: (1) to measure accountability by regulators, health care purchasers, and consumers, and (2) to perform the monitoring and continuous surveillance needed for quality improvement.[20] Additionally, criteria that should also be considered in defining standard of care boundaries include pain symptom management, patient satisfaction, shared decision-making among the patient, her family, and the treating physicians, coordination of pain care with other medical and social issues, and the guarantee of continuity of care throughout the chronic pain illness. [21]

It is no secret that pain is common among dying cancer patients, and that this pain increases as death approaches. It should not be a surprise, then, to learn that pain assessment and management is an important public concern. What often is a surprise, to physicians and attorneys alike, is that almost 40 percent of patients dying of colon or lung cancer have severe pain during the last three days of life.[22] As physicians study pain more extensively, they recognize that many chronic pain sufferers believe their pain is under-medicated and their mobility and quality of life are significantly impaired because of this under-medication.[23] Recently, many medical societies and organizations have developed medical guidelines addressing the treatment of intractable chronic pain in elderly and terminally ill patients. These guidelines, when followed, establish an appropriate standard of care for the treatment of such patients. Unfortunately, there is strong evidence that chronic pain is too often under-treated, despite these clearly established guidelines. [24] Many believe that if the pain management guidelines were followed, pain could be relieved in the great majority of patients.[25] Because the inappropriate treatment of such chronic pain is now recognized and found unacceptable, the medical guidelines for the treatment of this pain have defined the standard of care for treatment in chronic pain patients. In fact, many physicians now recommend that pain and its control should become an outcome measure used to judge the quality of end-of-life care for purposes of public accountability. [26]

In the alternative
Changes in medicine, nevertheless, occur slowly, and it is often only through judicial encouragement that the needed medical changes occur. For instance, an increasing number of elderly and terminally ill patients are afforded more effective pain relief as a result of the medical community’s fear of legal liability. This fear has led to the voluntary adoption of more consistent and aggressive pain management policies, thereby cementing a previously elusive standard of care regarding the treatment of the elderly suffering from intractable chronic pain. [27] Some states with locality rules governing the use of medical experts in medical malpractice negligence cases, however, may exclude experts from other geographical regions of the country who would be willing to testify as to the appropriate pain management standard of care. As such, attorneys may be forced to continue their use of elder abuse statutes to avoid these evidentiary restrictions on medical experts. In time, as pain management protocols permeate even the most rural areas of medicine, pain management experts testifying on the appropriate standard of care will be available to all. Consequently, at least in some states, a careful use of elder abuse statutes as quasi-medical malpractice provisions has helped, and may continue helping, to ensure that elderly and terminally ill patients receive adequate pain relief. Nonetheless, in time, as pain management awareness and medical protocols continue to evolve, plaintiffs’ use of the elder abuse statutes as relief from the under-medication of chronically ill patients should lessen, folding back into the more traditional negligence actions against offending physicians.

Conclusion
The practice of medicine may, at times, be both conservative and technologically complex. In the backdrop of organ transplantation, gene therapy and biomedical sophistication, patients dying in pain occurs too frequently. While it is understandable in our culture of drug abuse that society wants to limit the availability of narcotics, a better understanding of the balance between narcotic addiction and the relief of intractable pain in the elderly and the terminally ill has led to the adoption of many medical protocols specifically addressing pain relief. On their own, most state legislatures and organized medicine have begun to solve these issues, but grass-root physician education and acceptance has been slow to ensure nationwide compliance in palliative care. With the United States Supreme Court’s acknowledgement and approval of palliative care as acceptable in terminally ill patients[28] and with the growing use of the non-traditional elder abuse claims against physicians when adequate pain relief is not supplied to dying patients, physicians failing to keep current with recent trends in pain management are on notice of society’s expectations regarding pain treatment. To further ignore these expectations, either through ignorance or fear of discipline, is to encourage the continued evolution of additional legal remedies to ensure that the elderly and the terminally ill have the pain relief they deserve. The use of elder abuse statutes as a tool to hold physicians liable for medical malpractice when a standard of care concerning the treatment of chronically ill patients appears elusive is only the first of many creative avenues attorneys will use to gain respect and adequate pain relief for their clients. Now that the standard of care for the treatment of chronically ill pain patients is well established through accepted medical protocols, the enforcement of a patient’s right to pain relief again may be seen most efficiently through traditional medical malpractice actions.

Physicians should discuss pain issues with their patients and their patients’ family, expressly document the plan of treatment in the medical record, and follow well-established pain management guidelines. As the rest of organized medicine figures out what many elderly patients already know — that pain hurts and that chronic pain really hurts —physicians will do a better job with pain management. If organized medicine is slow to grasp this concept, however, attorneys will continue to reinforce their client’s right to adequate pain relief through the courts. Both the legal and medical systems should be charged with finding the balance between fighting illegal drug users and guarding against the negligence of under-treating a patient’s pain — not an enviable task. Although it seems as though medical protocols regarding pain management will keep fewer physicians from being criminally prosecuted, the possibility of more physicians being held liable for elder abuse and neglect through traditional medical malpractice negligence suits remains significant. Certainly, as the medical protocols for the treatment of chronic pain become more widespread, non-compliant physicians will find themselves unable to hide in the shelter of an ambiguous standard of care that protected them in the past from negligence actions.

Notes
1. Chris Stern Hyman, “Pain Management and Disciplinary Action: How Medical Boards Can Remove Barriers to Effective Treatment,” 24 J. Law, Med. and Ethics 338, 338 (1996).

2. Kathleen M. Foley and Hellen Gelband, editors, Improving Palliative Care for Cancer, National Academy Press, Washington, D.C., (2003), p. 3.

3. The statutes of five generally representative states are surveyed in this section. See generally, Ark. Code Ann. §5-28-101 (Michie 2001); Cal. [Welfare and Institutions] Code §15610 (West 2001); Fla. Stat. Ann. §§415.102(1), (15) (West 2002); N.Y. [Penal] Law §§260.25, 260.30 (McKinney 2000); Tenn. Code Ann. §71-6-117 (1) (1995).

4. N.Y. [Penal] Law §§260.25, 260.30 (McKinney 2000); Tenn. Code Ann §71-6-119 (1995).

5. See generally, Ark. Code. Ann. §5-28-101; Cal. [Welfare and Institutions] Code §15610 (West 2001); Fla. Stat. Ann. §§415.102(1), (15) (West 2002); N.Y. [Penal] Law §§260.25, 260.30 (McKinney 2000); Tenn. Code Ann. §71-6-117 (1) (1995).

6. Ark. Code Ann. §5-28-102 (Michie 2001) (codifying the legislative intent regarding adult abuse).

7. Ark. Code Ann. §5-28-103(a) (Michie 2001). A caregiver includes “a related or unrelated person … that has the responsibility for the protection, care or custody of an endangered or impaired adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court.” Id. at §5-28-101(2). “Person” is not defined in this statute. See id. at §5-28-101. Both criminal and civil penalties apply to such abuse. See Ark. Code Ann. §§5-28-103 and 5-28-106.

8. Tenn. Code Ann. §71-6-120(g). “This [elder abuse] section shall not apply to a cause of action within the scope of title 29, chapter 26; such cause of action shall be governed solely by title 29, chapter 26.” Id. (Title 29, Chapter 26 contains the medical malpractice statutes.)

9. Criminal remedies could include both the potential of a Class A misdemeanor and aggravated assault. For example, see Tenn. Code Ann. §71-6-117 (1995) and Tenn. Code Ann. §71-6-119 (1995). For an example of a State Board of Medical Examiners disciplinary remedy, see Tenn. Code Ann. §63-6-213 to 217 (2000).

10. See, Annual Review of State Pain Policies 2000, Pain & Policy Study Group, University of Wisconsin Comprehensive Cancer Center (http://www.medsch.wisc.edu/painpolicy).

11. Annual Review of State Pain Policies 2000, Pain & Policy Study Group, University of Wisconsin Comprehensive Cancer Center (http://www.medsch.wisc.edu/pain_policy); see also Tenn. Board Med. Exam., Rule 0880-2-.14 (1999).

12. See, Annual Review of State Pain Policies, Pain and Policy Studies Group, University of Wisconsin Comprehensive Cancer Center 2000, (February 2001), http://www.medsch.wisc.edu/painpolicy.

13. See Id. at Appendix A, Section I: Preamble *1.

14. See Id.

15. Ann M. Martino, “In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do?” 26 J. Law, Med. and Ethics 332, 337 (1998).

16. See supra note 12, Annual Review of State Pain Policies.

17. The National Foundation For The Treatment of Pain, http://www.pain care.org/pain_management/essential/adequate.htm.

18. Id.

19. Id.

20. Kathleen M. Foley and Hellen Gelband, editors, Improving Palliative Care for Cancer, National Academy Press, Washington, D.C., (2003), p. 97.

21. Id.

22. Id. at 106-7.

23. Id. at 107.

24. Kathleen M. Foley and Hellen Gelband, editors, Improving Palliative Care for Cancer, National Academy Press, Washington, D.C., (2003), p. 107.

25. Id.

26. Id. Specifically, the Institute of Medicine recommends research into and demonstration projects involving efforts to implement accountability measures for pain management. Id.

27. See, Annual Review of State Pain Policies, 2000, supra note 12.

28. New York v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702, 735 (1997). In Glucksberg, the court upheld a Washington State statute prohibiting physician-assisted suicide Wash. Rev. Code §9A.36.060 (1) (1994)). Id. Justice Souter, in a concurring opinion, described the acceptance of palliative care and noted the following state statutes as examples that authorized such end-of-life pain management: Ind. Code §35-42-1-2.5 (a) (1) (Supp. 1996); Iowa Code Ann. §707A.3.1 (West Supp. 1997); Ky. Rev. Stat. Ann §216.304 (Michie 1997); Minn. Stat. Ann. §609.215 (3) (West Supp. 1997); Ohio Rev. Code Ann. §§2133.11 (A)(6), 2133.12 (E)(1) (1994); R.I. Gen. Laws §11-60-4 (Supp. 1996); S.D. Codified Laws §22-16-37.1 (Supp. 1997); Mich. Comp. Laws Ann. §752.1027 (3) (West Supp. 1997); Tenn. Code Ann.  §39-13-216 (b)(2) (1996). at 780 (Souter, J., concurring).

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