November 21, 2004

Pitfalls of Pain Management

You all know that Pain Management is a quality of care concern for DADS. Facilities have been cited for failing to adequately and systemically deal with pain being suffered by residents.

Nursing facilities must, of course, obtain physician's orders for pain medication and increasing dosages and types of medications. Today, there was a column in the New York Times by Sally Satel regarding the criminal liability risks assumed by physicians who are managing pain with narcotics.(You may need to register to read it--it's free though)(here is the cached version) Here is an example from the column:

February 1999, Dr. Frank Fisher, a general practitioner in Shasta County, Calif., was arrested by agents from the California state attorney general's office and charged with drug trafficking and murder.

The arrest was based on records indicating that Dr. Fisher had been prescribing high doses of narcotic pain relievers to his patients, five of whom died. He lost his home and his medical practice and served five months in jail before it was discovered that the patients had died from accidents or from medical illnesses, not from the narcotics he prescribed.

All charges were dropped last year, and Dr. Fisher now has his medical license back. Yet his ordeal lingers as a cautionary tale of what can happen to doctors who treat pain aggressively.

While patient advocate groups as well as survey agencies such as DADS are emphasizing that pain should not be undertreated, the DEA and other law enforcement agencies are stepping up investigation and prosecution of physicians because of an increase in abuse and drug diversion:

The red flags that rightly alert regulators to potential misconduct by doctors are, paradoxically, the very features that can also mark responsible care for intractable pain. These include prescribing high volumes of narcotic painkillers for extended periods, prescribing potentially lethal doses or prescribing several different drugs.

Thus, nursing homes are encouraged by State regulators to ensure that residents are being properly treated for pain, while physicians are disincentivized to treat pain aggressively because of scrutiny by DEA regulators. This can be a particularly difficult situation for nursing homes, because as we all know, surveyors often try to send messages to attending physicians by citing nursing homes for deficiencies.

Apparently, the DEA, albeit reluctantly, recognizes that there should be some degree of balance achieved:

Last August, the D.E.A. publicly acknowledged the need for a "principle of balance" to address the necessity of access to pain medications and the approaches to containing abuse, addiction and diversion. It published "Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel," which thoughtfully explained the concepts, and offered clear descriptions of the circumstances under which the D.E.A. may prosecute a doctor. Mysteriously, however, in early October the agency pulled the document from the Web site, saying it had "misstatements."

I did say the recognition is reluctant because some are speculating that the above publication was pulled from the DEA website because of fear that defendant Doctors would use the document in court in defense of their treatment--as one Doctor is actually doing. If that speculation is true, we are seeing the ugly face of "gotcha style" regulation. Thank goodness for Google Caches. Here is the document. And, here is an article on the document by a writer who did not remove it from her site and is my source for linking it in this piece.

You may want to share the document with your Medical Director so that he can assist in educating and alleviating fears attending physicians may have about aggressively relieving the pain of residents.

Also, there has been progress made around the country on this issue. In 1998, theFederation of State Medical Boards, which represents American licensing boards, published "Model Guidelines for the Use of Controlled Substances for the Treatment of Pain" to assure physicians that appropriate prescribing of opiate painkillers would not lead to action against their licenses.

A copy of the Guidelines as updated in 2004 can be found here. As of January 2004, 22 state licensing boards had adopted these Guidelines. I can find nothing on the web confirming that Texas is one of those states, though we do have an Intractable Pain Statute.

Additionally, California has passed a bill called "The Medical Crimes: Investigations and Prosecutions." It requires that the state's district attorneys association collaborate with "interested parties" on protocols to investigate physicians.

Sally Satel, in the NYT article suggests that: Other states should follow suit. Better yet, they should require that prosecutors first obtain declarations from qualified medical experts as to the good faith of the physician in question before charges are filed. It would go a long way toward making pain medicine what it should be: a health care story, not a crime story.

I concur.