Tort Liability for Under-treatment of Pain
Furthermore, there needs to be tough tort liability for under-treatment of pain. Barry Furrow posits four functions of tort liability for inadequate treatment of pain. The first Furrow tort liability function is reinforcing good medical practice through economic disincentives such as malpractice insurance costs, defense costs, and judgments. The second tort liability function is giving voice to patronized, ignored, actively manipulated, or cruelly treated patients. Thirdly, tort liability drives physician and institutional practice towards validated standards of practice. Fourthly, tort law brings forth new duties of care such as informed consent, making referrals to more qualified pain specialists, and placing patients' comfort and wellbeing above one's own interests in avoiding regulatory scrutiny.
Since the medical community has accepted the under-treatment of pain as standard practice, external incentives are required to upregulate the prescribing practices to the level needed to appropriately treat pain. Courts should recognize current pain management guidelines as the standard of care for the treatment of chronic, intractable pain [to] . . . vindicate the rights of the millions of patients forced to endure needless pain . . . . The civil tort system has proven itself a strong force in advancing personal rights and public policy. As author David Morris states, medical malpractice liability first shapes the behavior of clinicians and secondly shapes medical ethics itself. By shaping underlying medical ethics, tort liability does more than just pressure physicians to prescribe opioid medications - tort liability addresses an underlying cause of the problem.
Opponents of tort liability for oligoanalgesia have posited that fewer physicians will practice pain management if liable for under-treatment of pain. This effect is unlikely because more, not fewer, physicians, even if they are not pain management specialists, will be prompted by the threat of lawsuits to prescribe adequate pain therapy for any of their patients in pain. To avoid tort liability, physicians will either need to prescribe pain medications for their pain patients themselves, or timely refer patients to a pain specialist. However, timely referral to a conveniently located pain specialist may be difficult. One study found only 5% of pain patients see a pain specialist, while the rest are treated by their primary care physician. The refusal to treat pain patients by any physician is unacceptable and has been likened to refusing treatment to HIV-positive patients.
Opponents of tort liability for inadequate pain treatment also posit that pain is too subjective to submit to tort liability. Determining physical pain is no more difficult than ascertaining emotional or psychic pain. Pain patients often also have readily verifiable physical abnormalities that correlate with their pain symptoms. The problem of quantifying the damages exists, but such damages could be based upon the impact of the pain on a plaintiff's daily activities.
Tort liability for inadequate pain treatment is also based upon breach of reasonable medical professional standards of pain management, which currently are nebulous. Such nebulous standards for tort liability make it difficult for both patients and physicians to know when the standard has been breached. This physician uncertainty may contribute to the apprehension of physicians in treating pain patients and hence may contribute to inadequate pain treatment because of a lack of physicians willing to see pain patients.
Skeptics of tort liability for inadequate pain management also argue that physicians, being the gatekeepers of controlled substances, should not have an incentive to overprescribe opioids. As long as the patient suffers from significant oligoanalgesia, there is not likely to be an over prescription of opioids especially if computational opioid prescribing is employed. In patients with adequately treated pain, there will not be an incentive to prescribe escalating doses, and hence overprescribe, because the pain is already adequately managed. Currently a norm of under-treatment of pain exists. Adequate pain dosing regimens, therefore, appear to be overprescription when compared to the average dosing regimen. Newer methods such as computational opioid prescribing will allow opioid doses to be better tailored to individual needs and metabolism. DAPD programs also can prevent prescribing to those individuals who choose to divert or abuse opioid medication.
A pitfall in tort liability for inadequate pain treatment is the potential for elevated malpractice premiums for pain medication prescribing physicians. The increased premiums could cause a physician exodus from pain management similar to the exodus of obstetricians due to birth injury malpractice liability driving up obstetrical premiums to unaffordable levels. The malpractice premium argument weighs heavily in the balance, but, if physicians are liable for not treating pain, they may find no alternative other than a drastic career change, which does not involve direct patient care since pain is prevalent in nearly all medical and surgical subspecialties, as well as in primary care. Such an exodus from pain treatment specialties would leave a greater burden on pain management specialists. Overall, tort liability for inadequate pain control has its place in the war on pain, but it is not a panacea, and therefore one needs to look elsewhere for adjuvant weapons to fight the war.