The Need for New JCAHO Pain Standards
Interview with Dr. L. Jean Dunegan
L. Jean Dunegan, MD, JD is a Diplomate of the American Board of Surgery , a licensed attorney, and a member of the staff at Hillsdale Community Health Center. She completed her medical degree and surgical training at the University of Pittsburgh, with a research fellowship at Harvard, and her law degree at Thomas M. Cooley Law School in Lansing, Michigan. Dr. Dunegan is a nationally recognized expert on the clinical and legal aspects of pain management. She is in constant demand, annually delivering more than 100 lectures nationwide to diverse medical audiences at private and government hospitals, universities, multispeciality clinics, national professional society meetings, insurance companies, governmental regulatory agencies, and other settings. She is the author of The Handbook of Pain Management, (2000 edition sold out) with a revised 2002 edition pending in the fall of 2001. Her recent article, "The Ethics of Pain Management", in Annals of Long-Term Care, Vol. 8, No. 11, November 2000, pages 23-26, can be downloaded from the internet at: www.mmhc.com/nhm/articles/NHM0011/dunegan.html. A new CME slide series on pain management, co-authored by Dr. Dunegan and other national experts, can be viewed on the www.pain.com website at: www.pain.com/acutepain/slideshow.cfm.
Pain.com: In your opinion, was there a need to mandate pain management standards?
Dr. Dunegan: Definitely, there was a need to mandate pain management. Despite efforts to create safe harbors for physicians who prescribe pain medications, pain remains and is inadequately treated in thousands of patients across the nation. Let me give an example: in 1990, the state legislature of California passed an Intractable Pain Treatment Act (IPTA) and four years later the medical board of California adopted a policy statement encouraging aggressive pain treatment. In 1996, largely from the efforts of the American Society of Law, Medicine, and Ethics, a Model Pain Relief Act was developed for the purpose of creating a safe harbor for those who treat pain. Despite all these early efforts, pain management was not being accomplished.
Pain.com: Are pain standards mandated at this time?
Dr. Dunegan: Yes, pain standards were proposed by JCAHO (Joint Commission on Accreditation of Healthcare Organizations) in 2000, and went into effect (became mandated in order for health care facilities to obtain JCAHO accreditation) on 1-1-01.
Pain.com: Why did JCAHO decide to require health care institutions to assess and manage pain for all patients?
Dr. Dunegan:
- Although we have products for and knowledge of how to treat pain appropriately, until physicians have motivation to obtain and apply this knowledge (i.e. unless there are consequences for not adequately assessing and treating pain) it will not get done.
- The first ethical precept of the medical profession is beneficence, that is to say, whatever we do for a patient in our profession, it should be done with the objective of improving the quality of the patient's life as they live it in society day by day. There is no better way to show beneficence to our patients than to manage pain and suffering.
- The cost of unrelieved chronic pain in our nation is more than $50 billion per year (more than $85 billion per year if one counts lost wages from work) and in the age of steady cost cutting in a managed care environment, we can no longer afford it. (The underlying premise here is that chronic pain syndrome often results when acute pain goes untreated.)
- The quality of life for people who suffer chronic pain is markedly reduced. Not only do they suffer lost sleep, jobs, and the joy of living, they often lose their relationships with loved ones, often contemplate suicide, or even take their own lives rather than going on.
Pain.com: What are the actual JCAHO guidelines for pain treatment and are they the same for each type of healthcare institution?
Dr. Dunegan: The JCAHO purposely do not wish to develop a flow chart for pain, as such a cookbook approach to pain would negate not only the subjective nature of pain but also the marked variations in pain thresholds from one patient to another. The JCAHO guidelines do give mandates to:
- Recognize pain management as an inherent right for all patients who present themselves for treatment in any health care facility.
- Assess all patients for pain initially and all patients who are found to be in pain serially.
- Document pain assessment using the same scale consistently so as to make pain measurement (inherently subjective) as objective as possible.
- Intervene to treat pain when assessment indicates it is at least moderate to severe.
- Reassess, after treatment intervention, in a timely fashion, with the objective of getting the pain for the patient below a certain point (i.e. less than 5 on a 1-10 scale).
Pain.com: Under these new standards, have we seen consequences for practitioners who fail to take pain management seriously?
Dr. Dunegan: Yes. We have seen consequences for less than adequate pain management, not only from a licensure standpoint but also from liability in state courts.
In 1999, as a result of an investigation of a physician's treatment as regards pain, from 1993 to 1998, the Oregon Board of Medical Examiners sanctioned the physician's license for one year for failing to adequately assess and manage his patients' pain. Dr. Paul Bilder is a 55-year-old board-certified pulmonologist with a more than 20 year practice in Oregon. The investigation of his patient care showed that in more than 5 cases he refuses to use opioids appropriately (e.g. for patients on ventilators he administered only paralytic agents, no pain medication or sedatives; to treat air hunger for patients in the terminal phases of life he suggested only OTC medications; for a patient with pulmonary insufficiency who needed emergency intubation nasotracheally he used neither pain nor anti-anxiety medications.
To the charge that the Oregon Board was using Dr. Bilder as a scapegoat, since Oregon is the only state that has allowed physician-assisted suicide (PAS), the licensing board chair, Dr. George Porter, commented that 9 of the 11 board members are physicians. He emphasized that the decision to sanction Dr. Bilder's license was not made by the lay public but rather by physicians judging their own peer. Dr. Porter also commented that under Oregon's 1995 IPTA (Intractable Pain Treatment Act), if any patient in Oregon has a physician who won't take pain seriously, the patient has a right to have his records transferred to another physician who will take pain seriously. This was a landmark case as it was the first time a physician's license was sanctioned for failing to adequately assess and manage pain.
Pain.com: Are there malpractice or negligence liability risks for physicians who do not adequately treat their patients' pain?
Dr. Dunegan: A recent civil negligence case in California illustrates what I believe will become a trend in liability for substandard pain management:
Mr. William Bergman was an 87 year old male who died of metastatic lung cancer and after death his adult children got together and complained that for at least six months prior to Mr. Bergman's death he suffered moderate to severe pain that went largely unrelieved. His children decided that, in order to make palliative care better for those to come after their father, they would ask the licensing board of California to investigate the assessment and treatment of Mr. Bergman's pain by his physician, Dr. Chin. It was the family's opinion that their pleas for better pain management went unanswered. The licensing board agreed to investigate and several months later they sent a letter to the children stating that they (the board) were in agreement that Mr. Bergman's pain was inadequately controlled but they declined to take any action against Dr. Chin as they did not find that he had violated the medical practice act of California.
At that point the adult children decided to seek remedy in court as, although they had not been seeking monetary compensation, neither did they even get acknowledgment from Dr. Chin that his management of their father's pain was less than standard. They more or less decided that up to that point they "didn't get anywhere" and would have to sue in the court system for any remedy. They were able to find an attorney, who happened to be the CEO of a group in California called Dignity in Death, who filed the case against Dr. Chin in the Superior Court of California. The reasons the case was not filed under medical malpractice included: (1) the cap on pain and suffering ($250,000) for medical malpractice cases in California; (2) in California medical malpractice cases the pain and suffering is said to have died with the patient -- it does not pass on to family for purposes of a law suit; and (3) in medical malpractice cases in California, if the patient is victorious, he cannot collect punitive damages or attorney's fees. By filing instead under civil negligence/elder abuse, these three barriers were lifted for the case of the plaintiffs (Mr. Bergman's children.)
As this case played out many physicians with whom I discussed the case became irate that one could, in retrospect, zero in on Dr. Chin, citing patient responsibility (i.e. Mr. Bergman had an obligation to fire one physician and find another if he didn't like the pain treatment he was receiving). My response to this reaction involved my feeling that perhaps a patient's willingness to stand up for his rights depend on one's generation. My father died when he was 83. He worshipped the ground his physician walked upon, he had the same physician most of his adult life, and I don't believe it would even have occurred to him to confront "Doc Joe" about less than adequate treatment. My father began with the premise that "Whatever Doc Joe does for me is good enough!" Perhaps Mr. Bergman was very much like my dad, unwilling to confront the
physician whom he deemed to be doing as good a job (in managing pain) as
possible. The jury's verdict reached in July of 2001 was against the
physician for $1.5 million.
This case is profound as it sends a loud message that there is a liability in a retrospective fashion if one's relationship with a patient and his family does not show by documentation that pain was optimally assessed and controlled. When we communicate with a patient and his family about his medical condition we need to communicate about his disease(s) (e.g. the infection, the blood pressure, the progress in rehab, the surgical wound, etc.) but also about his signs and symptoms (e.g. how is he resting, is he in pain, is the pain better controlled or the same, etc.)
Mandatory evaluation and charting of pain will, as of 1-1-01 via JCAHO's guidelines, facilitate establishing that, in a specific case, the pain care provided was inadequate and that professional discipline is indicated if a similar substandard pattern is established.
Risk management departments in many large hospitals are even now beginning to acknowledge that inadequate concern and actions in under-treated pain is a risk for any health care facility and this will lead to more aggressive pain care.
Pain.com: Is there any good evidence that treating pain appropriately will actually save money?
Dr. Dunegan: There is good evidence that critical pathways for fast-tracking surgical patients for early discharge following major operations saves money for both Medicare and private insurance. The only reason fast tracking can be obtained is that patients' pain is optimally controlled in all three peri-operative periods (pre-, intra-, and post-operative). Furthermore, there are multiple studies which show that rehabilitation after trauma or operations is shortened when pain is optimally managed (thereby saving money). Patients can return to employment or societal responsibilities, and enjoy better quality lives, when pain is well controlled.
Pain.com: By emphasizing pain with our patients, are we risking the possibility that all of our patients will experience it?
Dr. Dunegan: When we ask patients to evaluate their pain ("emphasize pain") we should be educating them concomitantly. We want patients to understand that when they ignore pain or "tough it out" they jeopardize their own rehabilitation, they prolong their own recovery, and they markedly decrease the quality of their future daily lives. The reason to "emphasize pain" and control it optimally is to get people back to the best quality of life we can help them achieve, whether it is a golf game after a total knee replacement, re-employment after a back injury, or enjoyable human relationships after chronic pain control following traumatic nerve damage.
When we all ignore pain (e.g. patients, because they want to think and have us think they are "tough"; physicians, because they feel "uncomfortable treating it") everyone loses. Patients lose as they fail to rehabilitate or "get over" their injury and thus decrease the quality of their lives. Physicians lose as they fail to carry out that for which they came, not power or money, but to make a positive difference in the lives for whom they care.
Pain.com: Are physicians likely to find themselves on a "slippery slope" where patients who can't sue them for a complication or a less than perfect outcome will now be able to sue them for "bad pain management"?
Dr. Dunegan: Any patient can try to sue us for any aspect of their medical care. Communication with patients is still the best preventive mechanism against legal liability in our profession. If we document our attempts to try and manage a patient's pain efficaciously, and communicate that effort to both the patient and his loved ones, we will have come a long way toward preventing liability.
Pain.com: How can physicians best protect themselves in a pain management setting?
Dr. Dunegan: Communication with the patient and documentation of our efforts are critical aspects of all patient care. If we do an adequate work-up by history and physical, if we diagnose as best we are able from both history and physical as well as testing, if we use a plan for treatment, develop a definition for "success" (in chronic pain therapy), and follow a given patient in a timely fashion, we have maximum protection from liability. The education of any patient treated for pain should include the information that all opioids can result in injury or untoward outcome if not taken as directed. If we continue to be the patient's physician for pain as we are for all other illnesses, we will tell the patient how to take his pain medication, stop the medication when it is no longer indicated, and avoid future problems for both the patient and ourselves.
Pain.com: Thank you Dr. L. Jean Dunegan
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