Pain is defined as “an unpleasant sensory and emotional experience arising from actual or potential tissue damage or described in terms of such damage. Pain is always subjective. Each individual learns the application of the word through experiences related to injury in early life. It is unquestionably a sensation in a part or parts of the body but it is also always unpleasant and therefore an emotional experience.” International Association for the Study of Pain, “Pain Terms: A List with Definitions and Notes on Usage,” Pain, 6 (1979): 249.Google Scholar

The classic article calling attention to undertreatment is that of Marks, R.M. and Sachar, E.J., “Undertreatment of Medical Inpatients with Narcotic Analgesics,” Annals of Internal Medicine, 78 (1973): 173.Google Scholar

See, for example, AMA Department of Young Physicians Services, Pain Management: Resources for Physicians (visited July 20, 2000) <http://www.texnet.net/paincare/acute.htm> (stating that “[d]espite good intentions and genuine concern for patients' comfort on the part of physicians, repeated evaluations of the state of pain therapy over the past 20 years suggest that many patients receive inadequate pain relief”); Committee on Care at the End of Life, Approaching Death: Improving Care at the End of Life, Field, M.J. and Cassel, C.K., eds. (Washington, D.C.: National Academy Press, 1997): At 5. See Bonica, J.J., Effective Pain Management for Cancer Patients (St. Paul: SIMS Deltec, Inc., 1994) (eleven reports, involving nearly 2,100 patients, found that 70 percent of patients managed with opioids and other drugs have unrelieved pain until their death. See also Bernabel, R., Gatsonis, C., and Mor, V., “Management of Pain in Elderly Patients with Cancer,” JAMA, 279 (1998): 1877–82 (reporting on a study of over 10,000 nursing home residents with cancer which found that, although pain is common among such residents, it is often untreated); Oden, R., “Acute Postoperative Pain: Incidence, Severity and the Etiology of Inadequate Treatment,” Anesthesiology Clinics of North America, 7 (1989): 1–15; Sriwatanakul, K., Weis, O.F., Alloza, J.L. et al., “Analysis of Narcotic Usage in the Treatment of Postoperative Pain,” JAMA, 250 (1983): 926–29.Google Scholar

The term “opiophobia” refers to the unscientific and irrational fears that many people, including many health-care professionals, have about the dangers and evils of narcotics, even when prescribed to relieve pain. See Martino, A.M., “In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medial Boards Do?,” Journal of Law, Medicine & Ethics, 26 (1998): 332, at 336; Morgan, J.P., “American Opiophobia: Customary Underutilization of Opioid Analgesics,” in Advances in Pain Research & Therapy, vol. 11, Hill, C.S. Jr., Fields, W.S., eds. (New York: Raven Press, 1989): 181, at 181–82.Google Scholar

Foley, K.M., “The ‘Decriminalization’ of Cancer Pain,” in Advances in Pain Research & Therapy, vol. 11, Hill, C.S. Jr., and Fields, W.S., eds. (New York: Raven Press, 1989): 5, at 15 (describes “rampant opiophobia” among health-care professionals and concludes that “most physicians lack sufficient knowledge of the clinical pharmacologic approaches” that would be necessary for them to assume responsibility “to manage acute and chronic pain in medical illness effectively.”) See also Melzack, R., “The Tragedy of Needless Pain,” Scientific American, 262 (1990): At 27.Google Scholar

For example, it is not true that sustained use of opioids inevitably addicts a patient; that a maximum dose for opioid use exists; or that a large dose of opioids invariably depresses respiration. See generally Hill, C.S. Jr., “When Will Adequate Pain Treatment Be the Norm?,” JAMA, 274 (1995): 1881.Google Scholar

Lebovits, A.H., Florence, I., Bathina, R. et al., “Pain Knowledge and Attitudes of Healthcare Providers: Practice Characteristic Differences,” Clinical Journal of Pain, 13 (1997): 237–243 (“The overall concordant score of 56% reflects significant knowledge deficiencies regarding currently accepted principles of pain management practice, as well as beliefs that could interfere with optimal care. Perhaps even more compelling is that significant and consistent differences in knowledge and attitude exist by profession and clinical practice area.” The authors found that professionals mistakenly thought that addiction to narcotics is far more prevalent in pain patients than is actually the case.) The Institute of Medicine, in a 1997 report, found that “[d]eficiencies in undergraduate, graduate, and continuing education for end-of-life care reflect a medical culture that defines death as failure and ignores care for dying people as a source of professional accomplishment and personal meaning.” See Approaching Death, supra note 3, at 207.Google Scholar

Hill, C.S. Jr., “The Barriers to Adequate Pain Management With Opioid Analgesics,” Seminars in Oncology, 20 (April 1993): 1–5.Google Scholar

Joranson, D.E. and Gilson, A.M., “Regulatory Barriers to Pain Management,” Seminars in Oncology Nursing, 14 (May 1998): 158; Hill, , supra note 8; Weissman, D.E., “Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulations on Cancer Pain Management,” Seminars in Oncology, 20 (April 1993): 53–58.Google Scholar

Patient barriers to adequate pain treatment are discussed in Cleeland, C.S., “Documenting Barriers to Cancer Pain Management,” in Current and Emerging Issues in Cancer Pain: Research And Practice, Chapman, C.R. and Foley, K.M., eds. (New York: Raven Press, 1993): 321, 325–27; Fins, J.J., “Public Attitudes About Pain and Analgesics: Clinical Implications,” Journal of Pain and Symptom Management, 13 (1997): 169.Google Scholar

Paice, J.A., Toy, C., and Shott, S., “Barriers to Cancer Pain Relief: Fear of Tolerance and Addiction,” Journal of Pain and Symptom Management, 16 (July 1998): 1–9.Google Scholar

See Hoffmann, D.E., “Pain Management and Palliative Care in the Era of Managed Care: Issues for Health Insurers,” Journal of Law, Medicine & Ethics, 26 (1998): 267.Google Scholar

Jost, T.S., “Public Financing of Pain Management: Leaky Umbrellas and Ragged Safety Nets,” Journal of Law, Medicine & Ethics, 26 (1998): 290.Google Scholar

Alpers, A., “Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying,” Journal of Law, Medicine & Ethics, 26 (1998): 308.Google Scholar

Steinhauser, K.E. et al., “Factors Considered Important at the End of Life by Patients, Family, Physicians, and Other Care Providers,” JAMA, 284 (2000): 2476, at 2481.Google Scholar

See generally World Health Organization Expert Committee, Cancer Pain Relief and Palliative Care, WHO Technical Report Series, No. 804 (Geneva: World Health Organization, 1990). For earlier discussions of the problem of undertreatment, see Marks, and Sachar, , supra note 2, at 173–81.Google Scholar

Oxford Textbook of Palliative Medicine, 2nd ed., Doyle, D., Hanks, G.W.C., and MacDonald, N., eds. (Oxford: Oxford University Press, 1998): 3.Google Scholar

See Webster's Third New International Dictionary (1993): 1185.Google Scholar

See Consensus Statement from the American Academy of Pain Medicine and the American Pain Society, “The Use of Opioids in the Treatment of Chronic Pain,” Clinical Journal of Pain, 13 (1997): 6.Google Scholar

Jacox, A. et al., Management of Cancer Pain. Clinical Practice Guideline, USDHHS Pub. No. 94–0592 (Rockville, Maryland: Agency for Health Care Policy and Research, 1994).Google Scholar

AGS Panel on Chronic Pain in Older Persons, “The Management of Chronic Pain in Older Persons,” Journal of the American Geriatrics Society, 46 (1998): 635–51, at 635. “The Guidelines describe four types of pain: (1) Nociceptive pain, … often derived from stimulation of pain receptors. Nociceptive pain may arise from tissue inflammation, mechanical deformation, ongoing injury, or destruction. Examples include inflammatory or traumatic arthritis, myofascial pain syndromes, and ischemic disorders. Nociceptive mechanisms usually respond well to traditional approaches to pain management, including common analgesic medications and nonpharmacologic strategies. (2) Neuropathic pain results from a pathophysiologic process that involves the peripheral or central nervous system. Examples include trigeminal neuralgia, post-herpetic neuralgia, poststroke central or thalamic pain, and postamputation phantom limb pain. These pain syndromes do not respond as predictably as nociceptic pain problems to conventional analgesic therapy. … (3) Mixed or unspecified pain is often regarded as having mixed or unknown mechanisms. Examples include recurrent headaches and some vasculitic pain syndromes. Treatment of these syndromes is more unpredictable and may require various trials of different or combined approaches. … (4) Psychogenic pain results when psychological factors are judged to have a major role in the onset, severity, exacerbation, or persistence of pain. … Examples may include conversion reactions and somatoform disorders. Patients with these disorders may benefit from specific psychiatric treatments, but traditional medical interventions for analgesia are not indicated.” Id. at 635–36.Google Scholar

Pseudoaddiction is one phenomenon that occurs throughout the population of pain patients, but is especially common among the victims of chronic nonmalignant pain. See Pappagallo, M. and Heinberg, L.J., “Ethical Issues in the Management of Chronic Nonmalignant Pain,” Seminars in Neurology, 17 (1997): 203, at 205. Pseudoaddiction is a range or cluster of behaviors that are suggestive of addiction, but are the iatrogenic effect of ineffective pain management.Google Scholar

See Joint Commission on Accreditation of Healthcare Organizations, Pain Assessment and Management: An Organizational Approach (Oakbrook Terrace, Illinois: JCAHO, 2000): 3.Google Scholar

Joranson, D.E. et al., “Trends in Medical Use and Abuse of Opioid Analgesic,” JAMA, 283 (2000): 1710, at 1710. The treatment pyramid is developed in World Health Organization, Cancer Pain Relief: With a Guide to Opioid Availability, 2nd ed. (Geneva: World Health Organization, 1996).Google Scholar

Id. at 1712–13 (“Opioid analgesics, including the five study drugs, are a relatively small part of drug abuse as measured by the DAWN system … the abuse levels have remained low and relatively stable for the past seven years despite substantial increases in the medical use of opioids. … Conventional wisdom suggests that the abuse potential of Opioid analgesics is such that increases in medical use of these drugs will lead inevitably to increases in their abuse. The data from this study with respect to the opioids in the class of morphine provide no support for this hypothesis. The present trend of increasing medical use of Opioid analgesics to treat pain does not appear to be contributing to increases in the health consequences of Opioid analgesic abuse.”).Google Scholar

See, e.g., Cherney, N.I. and Catane, R., “Professional Negligence in the Management of Cancer Pain,” Cancer, 76 (1995): 2181.Google Scholar

American Medical Association, Code of Medical Ethics (1996): 40.Google Scholar

American Nurses Association, Compendium of Position Statements on the Nurse's Role in End-of-Life Decisions (Washington, D.C.: American Nurses Publishing, 1992): 7 (including the Position Statement on Promotion of Comfort and Relief of Pain in Dying Patients).Google Scholar

Martino, A.M., “In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do?,” Journal of Law, Medicine & Ethics, 26 (1998): 332.Google Scholar

A 1995 study found that among 220 women who suffered an adverse birth outcome, such as death or serious and permanent injury to the infant, none filed a malpractice claim. Sloan, F.A. and Hsieh, C.R., “Injury, Liability, and the Decision to File a Medical Malpractice Claim,” Law & Society Review, 29, no. 3 (1995): 413, at 430.Google Scholar

Studdert, D.M., Brennan, T.A., and Thomas, E.J., “Beyond Dead Reckoning: Measures of Medical Injury Burden, Malpractice Litigation, and Alternative Compensation Models From Utah and Colorado,” Indiana Law Review, 33 (2000): 1643, at 1660.Google Scholar

See California Medical Association and California Hospital Association: Report on the Medical Insurance Feasibility Study, Mills, D.H., ed. (San Francisco: Sutter Publications, 1977).Google Scholar

See generally Bell, P.A., “Legislative Intrusions into the Common Law of Medical Malpractice: Thoughts About the Deterrent Effect of Tort Liability,” Syracuse Law Review, 35 (1984): 939.Google Scholar

Lawthers, A.G. et al., “Physicians' Perceptions of the Risk of Being Sued,” Journal of Health Politics, Policy & Law, 17 (1992): 463 (physicians overestimate the rate of suit for malpractice at three times the actual rate, suggesting that physicians do respond to the messages sent by litigation). See also Weiler, P.C. et al., “Proposal for Medical Liability Reform,” JAMA, 267 (1992): 2355, at 2356.Google Scholar

Poythress, N.G., Wiener, R., and Schumacher, J.E., “Reframing the Medical Malpractice Tort Reform Debate: Social Science Research Implications for Non-Economic Reforms,” Law & Psychology Review, 16 (1992): 65, 72.Google Scholar

Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York (Cambridge, Massachusetts: President and Fellows of Harvard College, 1990): 9–29. Physicians surveyed in the New York study felt that the malpractice threat was important in maintaining standards of care. Id. at 9–24. The report notes that “the perception of incentives largely shapes the behavior that ultimately affects patient care.” Id. at 3–19.Google Scholar

Schwartz, W.B. and Mendelson, D.N., “The Role of Physician-Owned Insurance Companies in the Detection and Deterrence of Negligence,” JAMA, 262 (1989): 1342.Google Scholar

See Schwartz, W.B. and Mendelson, D.N., “Physicians Who Have Lost Their Malpractice Insurance,” JAMA, 262 (1989): 1335.Google Scholar

Other studies have provided recent useful data on this issue. See, e.g., Sloan, F.A. et al., “Medical Malpractice Experience of Physicians: Predictable or Haphazard?,” JAMA, 262 (1989): 3291.Google Scholar

Vidmar, N., Medical Malpractice and the American Jury: Confronting the Myths about Jury Incompetence, Deep Pockets, and Outrageous Damage Awards (Ann Arbor: University of Michigan Press, 1995): 265.Google Scholar

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One economist has estimated “the current non-trivial incidence of injury due to negligence would be at least 10 percent higher, were it not for the incentives for injury prevention created by the one in ten incidents of malpractice that result in a claim.” Danzon, P., “An Economic Analysis of the Medical Malpractice System,” Behavioral Sciences & the Law, 1 (1983): 39. See also Danzon, P.M., Medical Malpractice: Theory, Evidence and Public Policy (Cambridge, Massachusetts: Harvard University Press, 1985): 10; Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970); Schwartz, W.B. and Komesar, N.K., “Doctors, Damages and Deterrence: An Economic View of Medical Malpractice,” N. Eng. J. Med., 298 (1978): 1282; The Economics of Medical Malpractice, Rottenberg, S., ed. (Washington, D.C.: American Enterprise Institute, 1978). For a skeptical view of the signaling effect of tort litigation generally, see Sugarman, S.D., “Doing Away with Tort Law,” California Law Review, 73 (1985): 555. For a critique of Sugarman's view, see Latin, H.A., “Problem-Solving Behavior and Theories of Tort Liability, California Law Review, 73 (1985): 677, at 740.Google Scholar

Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970).Google Scholar

Wainwright v. Leary, 623 So. 2d 233, 237 (La. Ct. App. 1993). See also Murray v. U.S., 36 F. Supp. 2d 713 (D.C.E.D. Va. 1999) (applying Virginia Law).Google Scholar

466 So. 2d 856, 872–73 (Miss. 1985). Hall was followed in Turner v. Temple, 602 So. 2d 817 (Miss. 1992).Google Scholar

See, e.g., Bahr v. Harper-Grace Hospitals, 528 N.W.2d 179 (Mich. 1995).Google Scholar

See, e.g., Trull v. Long, 621 So. 2d 1278 (Ala. 1993). Some courts require that the plaintiff prove such a conspiracy of silence in the particular case before an instruction will be allowed. See, e.g., Thibodeaux v. Aetna Casualty & Surety Co., 216 So. 2d 314 (La. Ct. App. 1968).Google Scholar

See, e.g., Bates v. Meyer, 565 So. 2d 134 (Ala. 1990).Google Scholar

Vergara v. Doan, M.D., 593 N.E.2d 185, 187 (Ind. 1992) (“availability of facilities may be considered”).Google Scholar

See Blair v. Eblen, 461 S.W.2d 370 (Ky. 1970); Restatement (Second) of Torts, § 299A cmt. g (1977) (“Allowance must be made also for the type of community in which the actor carries on his practice. A country doctor cannot be expected to have the equipment, facilities, experience, knowledge or opportunity to obtain it, afforded him by a large city.”).Google Scholar

Dunning v. Kerzner, 910 F.2d 1009 (1st Cir. 1990).Google Scholar

See King, J.H. Jr., “In Search of a Standard of Care for the Medical Profession — the ‘Accepted Practice’ Formula,” Vanderbilt Law Review, 28 (1975): 1213, at 1236.Google Scholar

See, e.g., Toth v. Community Hospital, 292 N.Y.S.2d 440, 239 N.E.2d 368, 369 (N.Y. 1968).Google Scholar

See Nowatske v. Osterloh, 543 N.W.2d 265 (Wis. 1996), where the court noted that “customary conduct is not dispositive and cannot overcome the requirement that physicians exercise ordinary care. … We recognize that in most situations there will be no significant difference between customary and reasonable practices. In most situations physicians, like other professionals, will revise their customary practices so that the care they offer reflects a due regard for advances in the profession. An emphasis on reasonable rather than customary practices, however, insures that custom will not shelter physicians who fail to adopt advances in their respective fields and who consequently fail to conform to the standard of care which both the profession and its patients have a right to expect.”Google Scholar

Hall, 466 So. 2d at 871.Google Scholar

Zintek v. Perchik, 471 N.W.2d 522, 530 (Wis. Ct. App. 1991).Google Scholar

See Klisch v. Meritcare Medical Group, Inc., 134 F.3d 1356 (8th Cir. 1998), where the patient sued for negligent performance of surgery. The Court of Appeals held that (1) a jury instruction in which the jury was asked to consider the state of medical technology at time of the allegedly negligent surgery was appropriate; and (2) under Minnesota law, the jury in a medical malpractice action should weigh information available to physicians at the time of treatment and without benefit of hindsight.Google Scholar

See generally Eddy, D., “Clinical Policies and the Quality of Clinical Practice,” N. Eng. J. Med., 307 (1982): 343.Google Scholar

An outpouring of writing on practice guidelines has occurred over the past several years. See generally Rosoff, A.J., “The Role of Clinical Practice Guidelines in Health Care Reform,” Health Matrix, 5 (1995): 369; Committee to Advise the Public Health Service on Clinical Practice Guidelines, Institute of Medicine, Clinical Practice Guidelines: Directions for a New Program, Field, M.J. and Lohr, K.N., eds. (Washington, D.C.: National Academy Press, 1990): 8; Ayres, J., “The Use and Abuse of Medical Practice Guidelines,” Journal of Legal Medicine, 15 (1994): 421, at 436–38; Office of Technology Assessment, U.S. Congress, Identifying Health Technologies That Work: Searching For Evidence, OTA-H-608 (Washington, D.C.: U.S. Gov't Printing Office, 1994): 145–47; Hall, M.A. and Dadakis, D.S., “Character of Guidelines Evolves, Concern Lingers Over Protection,” Medical Malpractice Law & Strategy, 13, no. 4 (1996): 1-4.Google Scholar

Chassin, M.R., “Is Health Care Ready for Six Sigma Quality?,” The Milbank Quarterly, 76 (1998): 565, at 574.Google Scholar

See, e.g., Rosoff, , supra note 61, at 369.Google Scholar

The Agency for Health Care Policy and Research (AHCPR) within the Health Care Financing Administration, for example, has the responsibility of developing guidelines for clinical practice through the administration's Medical Treatment Effectiveness Program. This program supports research, data development, and other activities to develop and review clinically relevant guidelines, standards of quality, performance measures, and medical review criteria in order to improve the quality and effectiveness of health-care services. See Pub. L. No. 101–239 (1990).Google Scholar

See Kinney, E.D. and Wilder, M.M., “Medical Standard Setting in the Current Malpractice Environment: Problems and Possibilities,” U.C. Davis Law Review, 22 (1989): 421, at 448; West, J.C., “The Legal Implications of Medical Practice Guidelines,” Journal of Health & Hospital Law, 27 (1994): 97.Google Scholar

Guidelines for the proper use of beta blockers are one example. See, e.g., Sarasin, F.P. et al., “Successful Implementation of Guidelines for Encouraging the Use of Beta Blockers in Patients After Acute Myocardial Infarction,” American Journal of Medicine, 106 (1999): 499.Google Scholar

See generally Kinney, and Wilder, , supra note 65; Mehlman, M.J., “Assuring the Quality of Medical Care: The Impact of Outcome Measurement and Practice Standards,” Law, Medicine & Health Care, 18 (1990): 368.Google Scholar

See Roper v. Blumenfeld, 706 A.2d 1151, 1156 (N.J. Super. App. Div. 1998) (defendant allowed to use a 1992 edition of Parameters of Care for Oral and Maxillofacial Surgery: A Guide of Practice, Monitoring and Evaluation to examine his expert and cross-examine the plaintiff's expert; the textbook established that the injury suffered by the plaintiff was a known complication of the procedure).Google Scholar

See generally Hyams, A.L., Shapiro, D.W., and Brennan, T.A., “Medical Practice Guidelines in Malpractice Litigation: An Early Retrospective,” Journal of Health Politics, Policy & Law, 21 (1996): 289. The respectable minority defense allows a defendant physician to defend by arguing that her practice is followed by at least a respectable minority of other physicians in that practice area or specialty.Google Scholar

See, e.g., Miles v. Tabor, 443 N.E.2d 1302 (Mass. 1982) (obstetrician's failure to initiate resuscitation of infant immediately after delivery violated American College of Obstetricians and Gynecologists guidelines); Green v. Goldberg, 630 So. 2d 606 (Fla. Dist. Ct. App. 1993) (American College of Obstetricians and Gynecologists bulletin on breast cancer treatment used to support expert testimony); Basten v. U.S., 848 F. Supp. 962 (M.D. Ala. 1994) (involving American College of Obstetricians and Gynecologists guidelines requiring that alpha-fetoprotein screening be offered and that acceptance or rejection be documented). See generally Hyams, et al., supra note 69, at 296–99.Google Scholar

Agency for Health Care Policy and Research, Acute Pain Management: Operative or Medical Procedures and Trauma. Clinical Practice Guideline, AHCPR Pub. No. 92–0032 (Rockville, Maryland: U.S. Department of Health and Human Services, 1992); Jacox, A. et al., Management of Cancer Pain. Clinical Practice Guideline, USDHHS Pub. No. 94–0592 (Rockville, Maryland: Agency for Health Care Policy and Research, 1994); Bigos, S. et al., Acute Low Back Problems in Adults (Clinical Practice Guideline No. 14), AHCPR Pub. No. 95–0642 (Rockville, Maryland: U.S. Department of Health and Human Services, 1994).Google Scholar

Blau, W.S., Dalton, J.A., and Lindley, C., “Organization of Hospital-Based Acute Pain Management Programs,” Hospital-Based Pain Management, 92 (1999): 465, at 466.Google Scholar

These guidelines can be found on-line at <http://www.asahq.org/practice/chronic_pain/chronic_pain.html>..>Google Scholar

Kassirer, J.P., “Patients, Physicians, and the Internet,” Health Affairs, 19 (2000): 115 (noting that physicians access medical information on-line, even though older physicians are slower to adopt more wide-ranging uses for the medium).Google Scholar

See generally Furrow, B.R., “Broadcasting Clinical Guidelines on the Internet: Will Physicians Tune In?,” American Journal of Law & Medicine, 25 (1999): 403. See, for example, Yamamoto, L.G., “Radiology Cases in Pediatric Emergency Medicine: Amplifying the Benefits of Performance Improvement by Sharing a Hospital Performance Improvement Program with the World via the Internet,” American Journal of Medical Quality, 12 (1997): 69.Google Scholar

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The Clearinghouse was created to deal with the criticism that guidelines published in peer-reviewed medical literature do not adhere to established methodological standards. See Shaneyfelt, T.M., Mayo-Smith, M.F., and Rothwangl, J., “Are Guidelines Following Guidelines? The Methodological Quality of Clinical Practice Guidelines in the Peer-Reviewed Medical Literature,” JAMA, 281 (1999): 1900.Google Scholar

See Shekelle, P.G. and Schriger, D.L., “Evaluating the Use of the Appropriateness Method in the Agency for Health Care Policy and Research Clinical Practice Guideline Development Process,” Health Services Research, 31, no. 4 (1996): 453.Google Scholar

“Passive dissemination of guidelines (such as via publication or the World Wide Web) is a weak way of modifying physician behavior.” Schriger, D.L. et al., “Implementation of Clinical Guidelines Using a Computer Charting System: Effect on the Initial Care of Health Care Workers Exposed to Body Fluids,” JAMA, 278 (1997): 1585, at 1589. The studies conclude that some form of active implementation of guidelines at the local level is needed in order to involve physicians. In one study, in a hospital emergency department in a university hospital, patients were health-care workers exposed to blood. A computer charging system provided real-time information regarding history and recommendations for laboratory testing, treatment, and disposition based on rules derived from clinical guidelines. The study found that documentation and compliance improved. Compliance with testing guidelines increased from 63 percent to 83 percent during the intervention phase and decreased to 52 percent when the computer system was removed. Real-time application of a computer-based system that provides practice guidelines literally “at the physician's fingertips” may be an effective method to improve the quality of patient care. “The fusion of electronic charting, computer databases, and clinical guidelines may offer the best hope for efficiently guiding, monitoring and improving the quality of ambulatory medicine.” Id. at 1590. See also Ray-Coquard, I. et al., “Impact of a Clinical Guidelines Program for Breast and Colon Cancer in a French Cancer Center,” JAMA, 278 (1997): 1591; Elam, K. et al., “Impact of a Worker's Compensation Practice Guideline on Lumbar Spine Fusion in Washington State,” Medicare Care 35 (1997): 417 (through use of guidelines for elective lumbar fusion as part of inpatient utilization review program, tied to reimbursement limitations, lumbar fusion rate declined 26 percent compared with a 3 percent decline for all lumbar operations over five years).Google Scholar

See Cabana, M.D. et al., “Why Don't Physicians Follow Clinical Practice Guidelines? A Framework for Improvement,” JAMA, 282 (1999): 1458.Google Scholar

Lande, S.D., “The Problem of Pain” (Chapter 2), in Managed Care and Pain, Lande, S.D. and Kulich, R.J., eds. (Glenview, Illinois: American Pain Society, 2000): 28.Google Scholar

Internet-based physician-oriented Web sites are available on a commercial basis. One example is MDConsult, a commercial database available by subscription that provides easy access to hundreds of medical textbooks and treatises, as well as clinical practice guidelines. Another example is Medscape, which provides a full range of on-line resources.Google Scholar

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See Warrick v. Giron, 290 N.W.2d 166 (Minn. 1980).Google Scholar

See Rich, B.A., “The Emerging Standard of Care for Pain Management,” William Mitchell Law Review, 26 (2000): 1; Shapiro, R.S., “Health Care Providers' Liability Exposure for Inappropriate Pain Management,” Journal of Law, Medicine & Ethics, 24 (1996): 360 (general malpractice discussion).Google Scholar

State v. McAfee, 385 S.E.2d 651 (Ga. 1989), where a quadriplegic incapable of spontaneous respiration sought court approval for discontinuation of his respirator. The Georgia Supreme Court affirmed his right to refuse medical treatment and to receive proper sedation as well: “Mr. McAfee's right to be free from pain at the time the ventilator is disconnected is inseparable from his right to refuse medical treatment. The record shows that Mr. McAfee has attempted to disconnect his ventilator in the past, but has been unable to do so due to the severe pain he suffers when deprived of oxygen. His right to have a sedative (a medication that in no way causes or accelerates death) administered before the ventilator is disconnected is a part of his right to control his medical treatment.” Id. at 652.Google Scholar

See Walzer, S.H. et al., “The Physician's Responsibility Towards Hopelessly Ill Patients: A Second Look,” N. Eng. J. Med., 320 (1989): 844, at 847 (“To allow a patient to experience unbearable pain or suffering is unethical medical practice.”); Pellegrino, E.D., “Emerging Ethical Issues in Palliative Care,” JAMA, 279 (1998): 1521, at 1521 (“not to relieve pain optimally is tantamount to moral and legal malpractice”); Angell, M., “The Quality of Mercy,” N. Eng. J. Med., 306 (1982): 98, at 99 (“the treatment of severe pain in hospitalized patients is regularly and systematically inadequate. … Pain is soul destroying. No patient should have to endure intense pain unnecessarily.”).Google Scholar

543 N.W.2d 265, 272 (Wis. 1996).Google Scholar

Shapiro, , supra note 86.Google Scholar

736 So. 2d 366 (C.A. La. 1999).Google Scholar

Most of the legal discussion of substandard practice is not found in malpractice cases, but in medical discipline actions. For example, in Holladay v. Louisiana State Board of Medical Examiners, the Louisiana State Board of Medical Examiners imposed sanctions on a physician for prescribing controlled substances in a substandard way. He had prescribed controlled drugs in the absence of any treatment plan and medical examinations for up to eight months. He had also failed to check on the substance abuse record of his patients. According to the testimony of experienced physicians, the physician had breached the standard of care for proper pain management given these omissions.Google Scholar

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Shapiro, , supra note 86, at 361.Google Scholar

See Corley v. State, 749 So. 2d 926 (La. 1999); Johnson v. Kokemoor, 545 N.W.2d 495, 508–09 (Wisc. 1996).Google Scholar

713 N.E.2d 33 (1998).Google Scholar

546 N.W. 495 (Wis. 1996).Google Scholar

453 N.W.2d 634 (Iowa 1990).Google Scholar

385 N.W.2d 732 (Mich. Ct. App. 1986).Google Scholar

Johnson v. Ruark Obstetrics and Gynecology Associates, P.A., 395 S.E.2d 85 (N.C. 1990) (expectant parents of a stillborn fetus sued the physicians for the negligent infliction of mental distress, alleging that they had observed events surrounding the death of the fetus; the North Carolina Supreme Court allowed negligent infliction of emotional distress based on a test of reasonably foreseeable consequences).Google Scholar

See, for example, Frame v. Kothari, 515 A.2d 810 (N.J. Super. Ct. App. Div. 1985) (defendant physician's misdiagnosis of a cerebella hemorrhage and acute hydrocephalus due to blunt trauma to the skull was held to be an event perceived by the parents; first, the parents' discussion with the defendant about their son's deteriorating condition was an “observation”; and second, their distress was foreseeable after the doctor was informed of the condition and failed to properly treat it). See also Ochoa v. Superior Court of Santa Clara County, 216 Cal. Rptr. 661, 703 P.2d 1 (Cal. 1985) (mother suffered distress after visiting her son who was receiving “woefully inadequate” medical care in a juvenile detention home).Google Scholar

See, for example, Smelko v. Brinton, 740 P.2d 591 (Kan. 1987) (parents waiting outside the operating room for their baby to undergo surgery; baby is negligently burned during the surgery and they discover the burn when he is brought out; court held that merely seeing the bad result is not sufficient for recovery). But see Martinez v. Long Island Jewish Hillside Medical Center, 518 N.Y.S.2d 955, 512 N.E.2d 538 (N.Y. 1987) (physician negligently diagnosed a pregnant woman's condition as requiring an abortion; the woman aborts the fetus and then discovers the abortion was not needed; recovery allowed).Google Scholar

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See, e.g., Teilhaber v. Greene, 727 A.2d 518 (N.J. Super. Ct. 1999); Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993).Google Scholar

Case law requires physicians to warn third parties about, or take steps to protect them from, patients who are taking medication. These steps might include warning the patient about the effects of medication, or even refusing to prescribe the medication if the patient might still drive. See Welke v. Kuzilla, 375 N.W.2d 403 (Mich. Ct. App. 1985); Myers v. Quesenberry, 193 Cal. Rptr. 733 (Cal. Ct. App. 1983) (physician failed to warn his patient, a diabetic, of the dangers of driving); Calwell v. Hassan, 908 P.2d 184 (Kan. Ct. App. 1995) (physician treated patient for sleep disorder, failed to warn him not to drive).Google Scholar

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See Holt v. Nelson, 523 P.2d 211 (Wash. Ct. App. 1974).Google Scholar

See Morris v. Ferriss, 669 So. 2d 1316 (La. Ct. App. 4th 1996) (physician did not have to advise patient that psychiatric treatment was an alternative treatment for epileptic partial complex seizures since it was not accepted as feasible); Lienbard v. State, 431 N.W.2d 861 (Minn. 1988) (managing pregnancy at home rather than in hospital not a choice between alternative methods of treatment; therefore, disclosure was not required).Google Scholar

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Id. at 225–226 (“most cancer pain can be managed by the appropriate assessment of the causes of pain and treatment with non-invasive opioid analgesics. However, despite recent progress in the management of cancer pain, many patients experience severe pain due to inadequate analgesia.”).Google Scholar

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The most important work to date addressing the broad issue of medical error is the Institute of Medicine report, To Err Is Human: Building a Safer Health System. The report is ground-breaking in its emphatic recognition, finally, that health care is a complex technological system prone to error. The report calls for “a comprehensive approach to improving patient safety,” noting that “[m]ost errors and safety issues go undetected and unreported both externally and within health care organizations.” With the exception of anesthesia, where the recognition that systems factors cause errors has led to a fail-safe system and better training to reduce such errors, health care has yet to implement any larger mechanism to detect errors based on system deficiencies and individual errors.Google Scholar

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For an early acknowledgment of this problem, see generally Fagerhaugh, S.Y. and Strauss, A.L., Politics of Pain Management: Staff-Patient Interaction (Reading, Massachusetts: Addison-Wesley, 1977). A more recent review of the literature is found at Morgan, supra note 4.Google Scholar

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Acute Pain Management, supra note 72. See generally Crowley, P.C., “No Pain, No Gain? The Agency for Health Care Policy & Research's Attempt to Change Inefficient Health Care Practice of Withholding Medication from Patients in Pain,” Journal of Contemporary Health Law & Policy, 10 (1993): 383.Google Scholar

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See, e.g., Pearce v. Feinstein, 754 F. Supp. 308 (W.D.N.Y. 1990); Murillo v. Good Samaritan Hospital., 160 Cal. Rptr. 33 (Cal. Ct. App. 1979).Google Scholar

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See Emory University v. Porter, 120 S.E.2d 668, 670 (Ga. Ct. App. 1961); Lauro v. Travelers Insurance Co., 261 So. 2d 261 (La. Ct. App. 1972), cert. denied, 262 So. 2d 787 (La. 1972).Google Scholar

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See Habuda v. Trustees of Rex Hospital, 164 S.E.2d 17 (N.C. Ct. App. 1968) (hospital liable for inadequate rules for handling, storing, and administering medications); Herrington v. Hiller, 883 F.2d 411 (5th Cir. 1989) (failure to provide for adequate twenty-four hour anesthesia service).Google Scholar

Decker v. St. Mary's Hospital, 619 N.E.2d 537 (Ill. App. Ct. 1993). Such a duty was rejected by the Maine Supreme Judicial Court in Gafner v. Down East Community Hospital, 1999 WL 605619 (Me. 1999) (refusing to recognize corporate liability action against hospitals for failing to have explicit policies in place to control the actions of independent physicians).Google Scholar

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See, e.g., Johnson v. University of Chicago Hospital, 982 F.2d 230 (7th Cir. 1992), on remand, 1994 WL 118192 (N.D. Ill. 1994) (holding that hospital that provided telemetry communications to ambulance paramedics, directing them to the proper hospital in the system, could be liable for negligent operation of the system).Google Scholar

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The case most identified with corporate negligence is Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965). The Illinois Supreme Court relied upon several sources of standards to establish the standard of care for the hospital, including standards by the Joint Commission on Accreditation of Heathcare Organizations for hospital accreditation, the state licensing regulations, and the defendant's bylaws. All of these sources mandated that a hospital assume certain responsibilities for the care of the patient. The court allowed the jury to use these standards to evaluate the failure of both the nursing staff and administrators to blow the whistle on the defendant's handling of the case.Google Scholar

See, e.g., Williams v. St. Claire Medical Center, 657 S.W.2d 590 (Ky. Ct. App. 1983).Google Scholar

See, e.g., Strubhart v. Perry Memorial Hospital Trust Authority, 903 P.2d 263 (Okla. 1995) (adopts doctrine of independent corporate responsibility, requiring hospitals to ensure that only competent physicians have staff privileges; also requires hospitals to take reasonable steps to ensure patient safety when it knows or should know that physicians have displayed incompetence); NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564 (Ky. Ct. App. 1993).Google Scholar

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Such a duty was rejected by the Maine Supreme Court in Gafner v. Down East Community Hospital, 1999 WL 605619 (Me. 1999).Google Scholar

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See, e.g., Cronic v. Doud, 523 N.E.2d 176 (Ill. App. Ct. 1988).Google Scholar

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The new JCAHO Pain Management standards must be satisfied by hospitals, home care agencies, nursing homes, behavioral health facilities, outpatient clinics, and health plans. These standards include:Google ScholarGoogle Scholar

Pain Assessment and Management, supra note 24.Google Scholar

This Act is also often referred to as “COBRA” for the budget reconciliation act of which it was a part, or as the “Anti-Dumping Act.”Google Scholar

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The statute requires that the hospital “provide for an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition … exists.” 42 U.S.C.A. § 1395dd(a).Google Scholar

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But see Wey v. Evangelical Community Hospital, 833 F. Supp. 453 (M.D. Pa. 1993).Google Scholar

The statute defines this term as “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” 42 U.S.C.A. § 1395dd(e)(1). This section also defines the term for women in labor.Google Scholar

The statute defines the terms “to stabilize” and “stabilized” with reference to the potential for material deterioration in the patient's condition, i.e., “no material deterioration of the condition is likely, within reasonable medical probability” resulting from or occurring during the transfer. 42 U.S.C.A. § 1395dd(e)(3)(A) and (B).Google Scholar

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The statute includes discharge of the patient within the definition of “transfer.” 42 U.S.C.A. § 1395dd(e)(4).Google Scholar

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The statute also provides that a plaintiff in a civil action under the Act may receive “such equitable relief as is appropriate.” Few reported cases thus far have issued equitable relief, but see Owens v. Nacogdoches County Hospital District, 741 F. Supp. 1269 (E.D. Tex. 1990).Google Scholar

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The statutory language requires that the patient request examination or treatment, but the request for treatment in the emergency room has generally not been the subject of dispute. However, see Stevison v. Enid Health Systems, 920 F.2d 710 (10th Cir. 1990).Google Scholar

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But see Collins v. DePaul Hospital, 963 F.2d 303 (10th Cir. 1992), in which the court “accept[ed] as true counsel's assertion that ordinarily” such a patient would have had a certain diagnostic procedure and that the hospital staff had thought the procedure had been done even though in fact it had not. The court upheld summary judgment for the defendant because the statute did not “require a hospital to determine … all of the emergency medical conditions from which a particular individual may be suffering.” The applicability of this statement should be limited to the facts of Collins: The patient was transported to the emergency room with multiple injuries, including a fractured skull, and he stayed at the hospital for nearly a month recovering from his injuries. A fractured hip was not detected.Google Scholar

See, e.g., Baber v. Hospital Corporation of America, 977 F.2d 872 (4th Cir. 1992); Cleland v. Bronson Health Care Group, 917 F.2d 266 (6th Cir. 1990).Google Scholar

See, e.g., Cleland v. Bronson Health Care Group, 917 F.2d 266 (6th Cir. 1990); Baber v. Hospital Corporation of America, 977 F.2d 872 (4th Cir. 1992); Deberry v. Sherman Hospital Association, 769 F. Supp. 1030 (N.D. Ill. 1991); Urban v. King, 834 F. Supp. 1328 (D. Kan. 1993).Google Scholar

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See, e.g., Collins v. DePaul Hospital, 963 F.2d 303 (10th Cir. 1992); Thornton v. Southwest Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990).Google Scholar

See, e.g., Burditt v. United States, 934 F.2d 1362 (5th Cir. 1991); Delaney v. Cade, 986 F.2d 387 (10th Cir. 1993); Green v. Touro Infirmary, 992 F.2d 537 (5th Cir. 1993).Google Scholar

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According to clinical practice guidelines on the management of chronic pain in older persons, “[f]or some conditions, chronic pain is defined as pain that exists beyond an expected time frame for healing. For other conditions, it is well recognized that healing may never occur. In many cases, chronic pain is understood as persistent pain that is not amenable to routine pain control methods. Because there are many differences in what may be regarded as chronic pain, the definition remains flexible and related to specific diagnoses or cases.” AGS Panel on Chronic Pain in Older Persons, supra note 22 and accompanying text on the four types of pain, at 635–36.Google Scholar

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See Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995).Google Scholar

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In Bergman v. Chin, the family of an elderly hospital patient filed suit after the state medical board failed to act against the treating physician. The daughter said: “We found that the care was grossly inadequate to my father, that they did not provide adequate pain medication or relief to him while he was in the hospital or when he was discharged to our home to have hospice care.” California's Elder Abuse Act has no cap like that for medical malpractice claims. Punitive damages and attorneys fees are recovered, and pain and suffering survives death and can accrue to the estate. “The goal of the family in this case and of Compassion in Dying is that this kind of accountability will motivate physicians and other providers to be more attentive and aggressive in caring for pain.” Foubister, V., “Doctor Faces Charges for Allegedly Undertreating Pain,” AMA News (March 20, 2000).Google Scholar

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See, e.g., Stiffelman v. Abrams, 655 S.W.2d 522 (Mo. 1983) and Harris v. Manor Healthcare Corp., 489 N.E.2d 1374 (Ill. 1986), both interpreting state statutes creating private rights of action. See also Stewart v. Bernstein, 769 F.2d 1088 (5th Cir. 1985); Chalfin v. Beverly Enterprises, 741 F. Supp. 1162 (E.D. Pa. 1989), holding no private right of action under “pre-OBRA 1987” federal statutes. But see Roberson v. Wood, 464 F. Supp. 983 (E.D. Ill. 1979), holding that a private right of action existed. Despite these earlier cases, one could argue that there is an implied private right of action under the current federal statute. The Medicaid and Medicare statutes provide that the statutory remedies “are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law.” 42 U.S.C.A. § 1395i-3(h)(5); 42 U.S.C.A. § 1396r(h)(8). Legislative history indicates some support for a Congressional intent to allow a private right of action on the part of nursing home residents. The House Energy and Commerce Committee explained the intent of the above provision by stating that it would include “private rights of action to enforce compliance with requirements for nursing facilities.” H.R. Rep. No. 391(1), 100th Cong., 1st Sess. 472. See Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993), holding that there is a private right of action under the OBRA provisions, enforceable through 42 U.S.C.A. § 1983. Residents may also have a statutory right to initiate sanctions. See, e.g., 210 Ill. Comp. Stat. 45/3–503, allowing residents to petition for receivership; Kizer v. County of San Mateo, 279 Cal. Rptr. 318, 806 P.2d 1353 (Cal. 1991), discussing right of private party to bring an action if the agency does not assess a fine.Google Scholar

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