Posted by Todd (184.108.40.206) on May 06, 2001 at 11:15:17:
Malpractice Suits Alleging Undertreatment of Pain Likely to Become More Common
WASHINGTON, DC (Reuters Health) Apr 30 - The proliferation of pain treatment guidelines will help frustrated pain patients and families of the terminally ill sue physicians and hospitals who undertreat their condition, a legal expert said here Monday.
Historically, pain has not been appropriately treated, so lawyers could not prove that undertreatment was a deviation from the standard of care, said Barry Furrow, a former litigator who teaches at Widener University School of Law in Wilmington, Delaware.
Now, said Furrow, standards are clear, thanks to guidelines issued by professional societies, the federal Agency for Health Care Quality and Research, and a requirement that hospitals monitor pain treatment in order to receive accreditation from the Joint Commission on Accreditation of Healthcare Organizations.
Attorneys suing for malpractice will be able to point to these as norms, Furrow said at a press briefing on legal and ethical issues in pain management.
Also, he said, because of the growing number of pain specialists, physicians have a duty to refer patients they can't treat. Courts are becoming more sympathetic to malpractice suits alleging undertreatment of pain, he added. Furrow discusses these and other rationales for pain-based malpractice claims in the current issue of the Journal of Law, Medicine & Ethics.
Beverly Bergman, a northern California resident whose father died of lung cancer in great pain, has filed what is expected to be a breakthrough malpractice suit. After her father's death in 1998, she and her family sued the hospital and the physician who discharged her father to hospice, alleging improper treatment.
Bergman tearfully recounted to reporters how she watched her 85-year-old father struggle in pain for the 8 days leading to his death. Her family filed a complaint with the California Medical Board, but it found no evidence of improper care.
"I thought their response was totally inadequate," Bergman told Reuters Health, noting that the nonprofit group Compassion in Dying helped her family mount the malpractice case.
The hospital settled last week, agreeing to provide more staff training on pain management. Under the terms of the settlement, Bergman is not allowed to discuss whether the hospital made any payment to her family. The trial against the physician begins May 7 in Superior Court in Hayward, California.
Researchers said at the news conference that pain continues to be undertreated, particularly in women and minorities.
"The evidence that pain continues to be undertreated is incontrovertible," said Russell Portnoy, chairman of pain medicine and palliative care at New York's Beth Israel Medical Center.
Diane Hoffmann and Anita Tarzian, both of the University of Maryland School of Law in Baltimore, found that women have a higher prevalence of chronic pain syndromes and are biologically more sensitive to pain, but that their pain reports are taken less seriously, and they receive less aggressive treatment than men. This may be due to women perceiving pain as a "normal" part of life, and also to physician biases about women having better coping mechanisms, the speakers speculated.
Men may also be treated more aggressively because they are seen as the primary breadwinners, they said.
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