In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do?

See Von Roenn J.H. , Physician Attitudes and Practice in Cancer Pain Management: A Survey from the Eastern Cooperative Oncology Group (Washington, D.C.: American Health Council, Jan. 1998); Portenoy R.K. , “Opioid Therapy for Chronic Nonmalignant Pain: Clinicians' Perspective,” Journal of Law, Medicine & Ethics, 24 (1996): 296–309; and Joranson D.E. “Opioids for Chronic Cancer and Non-Cancer Pain: A Survey of State Medical Board Members,” Federation Bulletin: The Journal of Medical Licensure and Discipline, 79 (1992): 15. Although I am primarily concerned with the practices and policies of state medical boards, several studies have focused on the barriers to effective pain relief posed by other regulatory entities, chiefly state pharmacy boards and drug enforcement agencies, as well as the Drug Enforcement Agency and federal and state controlled substance laws. See, for example, Hill C.S. , “The Negative Influence of Licensing and Disciplinary Boards and Drug Enforcement Agencies in Pain with Opioid Analgesics,” Journal of Pharmaceutical Care in Pain and Symptom Control, 1 (1993): 43–62.

See sources cited supra note 1. See also Shealy C.N. , “Opioids and Controlled Substances in Chronic Benign Pain: A Survey of State Medical Board,” American Journal of Pain Management, 1 (1997): 10–14; Hyman C.S. , “Pain Management and Disciplinary Action: How Medical Boards Can Remove the Barriers to Effective Treatment,” Journal of Law, Medicine & Ethics, 24 (1996): 338–43 and Johnson S.H. , “Disciplinary Actions and Pain Relief: An Analysis of the Pain Relief Act,” Journal of Law, Medicine & Ethics, 24 (1996): 319–27.

See, for example, Hoover v. Agency for Health Care Administration, 676 So. 2d 1380 (Fla. Dist. Ct. App. 1996). Sandra Johnson provides a review of several other relevant cases. See Johnson S.H. , “Removing Legal Constraints on Effective Pain Relief,” ABA Bioethics Bulletin, 5, no. 3 (1997): 9–10.

As part of my research, a review of the aggregate actions for the state medical boards reported to the Federation of State Medical Board's (FSMB) data bank was conducted for the reporting years 1990 to 1996. The available data as well as anecdotal reports from board administrators indicate that sanctions imposed for overprescribing are the exception rather than the rule, particularly with respect to chronic pain. Indeed, the data show that most disciplinary actions related to prescribing are a result of self- or indiscriminate prescribing by practitioners.

See Joranson D.E. Gilson A.M. , “State Intractable Pain Policy: Current Status,” APS Bulletin, 7, no. 2 (1997): 7–9.

Joranson David Gilson Aaron , see id., provide an excellent analysis of the distinctions between these various approaches—that is, laws versus rules versus guidelines—and identify the benefits and risks associated with each. They also point out that several states have laws, rules, and guidelines—for example, Texas. See The Intractable Pain Treatment Act, Tex. Rev. Civ. Stat. Ann. art. 4495c (West 1996); and Tex. Admin. Code tit. 22, §§ 170.1–.3 (1996).

See Johnson , supra note 3.

During a focus group of health professionals (physicians, pharmacists, and nurses) in January 1998 and a symposium in March 1998, both held in Iowa in conjunction with this project, fear of regulatory reprisal was cited as a major reason for underprescribing in clinical decision making on pain management. The Iowa Board of Medical Examiners (IBME) formally adopted an administrative rule on chronic pain management in early 1997; the rule had been noticed for comment six months earlier. In addition, IBME had established the guidelines as policy in a decision in a widely publicized case in late 1995. IBME's policy clearly states it recognizes that effective pain management can be achieved through the use of high dosages of narcotic analgesics and then sets guidelines, based on those adopted by California in 1994, for prescribing to chronic (nonmalignant) pain patients. See Cal. Bus. & Prof. Code § 2241.5 (West 1998).

See Johnson , supra note 2; and Johnson , supra note 3.

A review of the available data on disciplinary actions taken by state medical boards from 1989 to 1997 reveals that no actions were reported to FSMB's data bank or to the National Practitioner Data Bank (NPDB) in which the ground or cause for action was identified as underprescribing. For a broader and more in-depth study of administrative, civil, and criminal actions that yielded similar findings, see Johnson , supra note 2.

See Memorandum “Improving End-of-Life Pain and Symptom Management,” from Robinson B.K. , Compassion in Dying, to All State Medical Boards and the Federation of State Medical Boards (Jan. 12, 1998) (on file with author).

See Joranson Gilson , supra note 5; Johnson , supra note 2; and Johnson , supra note 3.

Statement of Hospice Physician, Focus Group, Ankeny, Iowa (Jan. 6, 1998) (on file with author) (responding to the question: “Has the chronic pain management policy adopted by the Board [Iowa Board of Medical Examiners] eliminated or reduced your concerns about facing disciplinary action for inappropriate prescribing?”).

American Medical Association, Code of Ethics (Chicago: American Medical Association, 1990): At 36.

For a more in-depth discussion of the problems with most of these efforts, see Joranson Gilson , supra note 5. In general, the focus of the criticism is that a long, and often detailed, list of procedures, which a physician must follow when treating a chronic pain patient to avoid disciplinary action, creates a barrier itself. This defensive format is similar to that used in practice parameters as protection against malpractice. Physicians tend to view practice parameters as a necessary evil that limits their clinical decision-making discretion.

See, in particular, Rousseau P. , “Do Terminally Ill Patients Receive Adequate Pain Management?,” Drugs and Aging, 8 (1996): 233–36; Hitchcock L.S. Ferrell B.R. McCaffrey M. , “The Experience of Chronic Nonmalignant Pain,” Journal of Pain and Symptom Management, 5 (1994): 312–18; Portenoy R.K. Payne R. , “Acute and Chronic Pain,” in Lowinson J.H. Ruiz P. Millman R.B. , eds., Comprehensive Textbook of Substance Abuse (Baltimore: Williams & Wilkins, 1992): 695–721; Foley K.M. , “The Treatment of Cancer Pain,” N. Engl. J. Med., 313 (1985): 84–95; Hill C.S. Fields W.S. , eds., Advances in Pain Research and Therapy (New York: Raven Press, Vol. 11, 1989); and Daut R.L. Cleeland C.S. , “The Prevalence and Severity of Pain in Cancer,” Cancer, 50 (1982): 1913.

See Morris D. , “Pain's Dominion: What We Make of Pain,” Wilson Quarterly, 3 (1994): 10; Cantor N.L. Thomas G.C. , “Pain Relief, Acceleration of Death and Criminal Law,” Kennedy Institute of Ethics Journal, 2 (1996): 107–28; Foley K.M. , “Controlling the Pain of Cancer,” Scientific American , Sept. (1996): 164–65; Post L.F. , “Pain: Ethics, Culture, and Informed Consent to Relief,” Journal of Law, Medicine & Ethics, 24 (1996): 348–59, and Marcus N.J. Arbeiter J.S. , Freedom from Chronic Pain (New York: Simon & Schuster, 1994).

See, for example, Schrof J.M. , “Caught in Pain's Vicious Cycle,” U.S. News & World Report , Mar. 17, 1997, at 55–57, 60–65; Brownlee S. , “Effective Pain Treatments Already Exist: Why Aren't Doctors Using Them?,” U.S. News & World Report , Mar. 17, 1997, at 55–57, 60–65; Batten M. , “Take Charge of Your Pain,” Ms. Magazine , Jan.-Feb. (1995): At 35–37, 80–81; Brower V. , “A World of Hurt,” Utne Reader , July-Aug. 1996, at 20–21; and Stehlin D. , “The Challenge of Relieving Pain,” FDA Consumer, Sept. (1991): 30–35.

The point that inadequate pain management is a global problem is made in Angarola R.T. Joranson D.E. , “International Efforts Underway to Provide Adequate Medication for Pain Control,” APS Bulletin, 5, no. 6 (1995): 9–10, 23.

See, for example, Parran T. Jr. , “Prescription Drug Abuse: A Question of Balance,” Alcohol and Substance Abuse, 81 (1997): 967–78.

The Mayday Pain Resource Center has compiled a comprehensive index of the publications in this area. See Mayday Pain Resource Center Materials (Duarte: City of Hope National Medical Center, Nursing Research & Education, Dec. 1997). See also Portenoy , supra note 1; Portenoy R.K. , “Chronic Opioid Therapy in Nonmalignant Chronic Pain,” Journal of Pain and Symptom Management, 5 (1990): S46–S62; and references cited supra notes 13–17.

Morris David argues, for example, “that drugs alone cannot control the wide range of pain syndromes.” Morris , supra note 17, at 10. See also Parran , supra note 20.

Jacob Sullum explores this notion. See Sullum J. , “No Relief in Sight,” Reason, Jan. (1997): 22–28.

See, for example, Trachtenberg A. , ed., “Treatment of Pain in Addicts and Others Who May Have Histories of Dependence” (Washington, D.C.: Center for Substance Abuse, U.S. Public Health Service, Unpublished Monograph, Mar. 1998) (presenting findings of experts before the Office of Pharmacological and Alternative Therapies).

See, for example, Sullum , supra note 23; Johnson , supra note 2; Hill , supra note 1; and Nowak R. , “Cops and Doctors: Drug Busts Hamper Pain Therapy,” Journal of NIH Research, 4 (1992): 27–28.

See Angarola R.T. Joranson D.E. , “Healthcare Reimbursement Policies: Do They Block Acute and Cancer Pain Management?,” APS Bulletin, 4, no. 5 (1994): 7–9; and Ferrell B. , “Cost Issues Surrounding the Treatment of Cancer Related Pain,” Journal of Pharmaceutical Care in Pain & Symptom Control, 1 (1993): 1, 9–23.

See Carter R. , “Giving a Drug a Bad Name…,” New Scientist, Apr. 6, 1996, at 14–15; Zenz M. , “Morphine Myths: Sedation, Tolerance and Addiction,” Postgraduate Medicine Journal, Supp. 81, no. 2 (1991): 100–02; Tucker C. , “Acute Pain and Substance Abuse in Surgical Patients,” Journal of Neuroscience Nursing, 6 (1990): 339–49; and Friedman D.P. , “Perspectives on the Medical Use of Drugs of Abuse,” Journal of Pain and Symptom Management, 5 (1990): S2–S5.

See Selzer R. , “The Language of Pain,” Wilson Quarterly, 3 (1994): 28–33.

See Morris , supra note 17.

See Batten , supra note 18.

See Cantor Thomas , supra note 17.

See Portenoy , supra note 1; and Foley , supra note 16.

As indicated earlier, as part of the research for this study, a series of focus groups was held involving Iowa physicians in January 1998. Lengthy interviews were also conducted with physicians and other health care providers practicing in Iowa and other states who are concerned about chronic pain management, from August 1997 to March 1998.

Morris , supra note 17, at 10.

For an overview of applied ethics, see Frankena W. , Ethics (Englewood Cliffs: Prentice-Hall 1973); and MacIntyre A. , After Virtue (Notre Dame: Notre Dame University Press, 2nd ed., 1984): At 181–225.

For elaboration of this argument, see Morris , supra note 17; Goldman A. , The Moral Foundations of Professional Ethics (Towata: Rowman and Littlefield, 1980): 70–74; and Masden P. Schafritz J. , “Introduction,” in Masden P. Schafritz J. , eds., Essentials of Government Ethics (New York: Meridian, 1992): 1–16.

See MacIntyre , supra note 35.

In the lexicon of philosophy, the former is referred to as a deontological and the latter as a teleological argument. For an elaboration of the distinctions between the two, see Strauss L. Cropsey J. , eds., The History of Political Philosophy (Chicago: University of Chicago Press, 3rd ed., 1987).

For an elaboration of Alasdair MacIntyre's arguments on internal and external rewards in ethical systems, see Cooper T. , “Hierarchy, Virtue and Practice: A Perspective for Normative Ethics,” in Masden Schafritz , supra note 36, at 286–91.

See id.

See MacIntyre , supra note 35.

See Masden Schafritz , supra note 36.

See Morgan J.P. , “American Opiophobia,” Alcohol and Substance Abuse, 5 (1986): 163–73.

Statement of Participant, Pain Patients and Consumers Focus Group, Des Moines, Iowa (Jan. 7, 1998) (on file with author).

See Schrof , supra note 18; and Brownlee , supra note 18.

Pediatrician, Remarks at Iowa Board of Medical Examiners Chronic Pain Symposium, Ankeny, Iowa (Mar. 27, 1998) (on file with author).

Interview with Physician Assistant, in Ankeny, Iowa (Mar. 26, 1998) (on file with author).

See survey results presented in Roenn Von , supra note 1. See also Schrof , supra note 18; Brownlee , supra note 18; and Joranson Gilson , supra note 5.

Statement of Iowa Physician, Focus Group, Des Moines, Iowa (Jan. 8, 1998) (on file with author).

The definition of addiction was adopted by the American Pain Society. See Batten , supra note 18, at 37.

See Morris , supra note 17.

Interview with the Son of the Chronic Pain Sufferer, Pain Patient and Consumers Focus Group, in Des Moines, Iowa (Mar. 19, 1998) (on file with author).

Statement of Licensed Pharmacist, Focus Group, Des Moines, Iowa (Jan. 8, 1998) (on file with author).

Statement of Internist, Focus Group, Des Moines, Iowa (Jan. 8, 1998) (on file with author).

Statement of Hospice Nurse, Focus Group, Des Moines, Iowa (Jan. 8, 1998) (on file with author).

Statement of Cancer Victim, Focus Group, Des Moines, Iowa (Jan. 7, 1998) (on file with author).

Vacco v. Quill, 117 S. Ct. 2293 (1997). For a useful discussion of the argument made in the decision, see Burt R.A. , “The Supreme Court Speaks—Not Assisted Suicide, but a Constitutional Right to Palliative Care,” N. Engl. J. Med., 337 (1997): 1234–36.

See Morris , supra note 17, at 8.

See Masden Schafritz , supra note 36, on the nature of organizational goals.

Interview with Missouri Physician, in Dallas, Tex. (Mar. 17, 1998) (noting that the physician had decided to cease treating chronic pain patients) (on file with author).

Interview with Internist, Iowa Board of Medical Examiners Chronic Pain Symposium, in Ankeny Iowa (Mar. 27, 1998) (noting that the long-term prescribing of opioids is a potential violation of prescribing laws) (on file with author).

Interview with Investigator of a Southern Medical Board, Federation of State Medical Boards Chronic Pain Management Symposium, in Dallas, Tex. (Mar. 17, 1998) (on file with author).

Comment of Floor Nurse, Focus Group, Des Moines, Iowa (Jan. 8, 1998) (noting regulatory risks) (on file with author).

Richard Rosenquist, M.D., University of Iowa Department of Anesthesiology, Keynote Address at Iowa Board of Medical Examiners Chronic Pain Symposium, Ankeny, Iowa (Mar. 27, 1998) (on file with author).

Statement of Board Certified Family Practitioner at Iowa Board of Medical Examiners Chronic Pain Symposium, Ankeny, Iowa (Mar. 27, 1998) (on file with author).

See Von Roenn , supra note 1.

Statement of Pain Clinic Internist, Focus Group, Des Moines, Iowa (Jan. 8, 1998) (on file with author).

Statement of Physician of a Southern Medical Board, Iowa Board of Medical Examiners Chronic Pain Symposium, Ankeny, Iowa (Mar. 25, 1998) (noting the physician's reaction on learning that IBME was considering adopting a rule establishing underprescribing as substandard care) (on file with author).

Statement of Pain Clinic Internist, supra note 68.

This argument was first developed in Clark H.W. Sees K.L. , “Opioids, Chronic Pain, and the Law,” Journal of Pain and Symptom Management, 5 (1993): At 304.

Every year, the organization representing medical board executives—Administrators in Medicine—holds regional meetings in the United States. About twenty-one board executives were interviewed as part of this study at the Central-Western Regional Meeting, in Phoenix, Arizona, in October 1997, and at the Eastern-Southern Regional Meeting, in Raleigh, North Carolina, during the same month. Between November 1997 and January 1998, telephone interviews were conducted with fifteen additional board executives.

Although some of these complainants claimed to be chronic pain sufferers, for reasons that are not entirely clear, board officials did not consider the complaints to be about underprescribing per se.

This is a small sampling of medical board rules pertaining to prescribing practices based on a search of state medical board web pages. See Ad Hoc Task Force on Regulatory Issues, Council on Licensure, Enforcement and Regulation, Uniform Grounds for Disciplinary Actions: Resource Brief (Lexington: CLEAR, No. 95–3, 1995): At 4. See also AIM, DocFinder <http://www.docboard.org> (visited Dec. 8, 1998).

IBME has considered each of these variations. IBME voted on November 17, 1998, to file a notice to adopt the direct approach (option #2) with the conservative caveat.

Numerous articles have made this point. See, for example, McArthur J.H. Moore F.D. , “The Two Cultures and the Health Care Revolution: Commerce and Professionalism in Medical Care,” JAMA, 26 (1997): 985–89; and Fuchs V.R. , “Economics, Values and Health Care Reform,” American Economic Review, Mar. (1996): 1–24.

President of a Mid-Western State Medical Society, Address at Iowa Board of Medical Examiners Chronic Pain Symposium, Ankeny, Iowa (Mar. 27, 1998) (on file with author).

See Interviews with Medical Board Executives, in Phoenix, Ariz. (Oct. 1997) (on file with author); Interviews with Medical Board Executives, in Raleigh, N.C. (Oct. 1997) (on file with author); and Telephone Interviews with Medical Board Executives (Nov. 1997-Jan. 1998) (on file with author).

Statement of Medical Board Member, Federation of State Medical Boards Annual Meeting, Orlando, Fla. (Apr. 30, 1998) (commenting on the administrative rule on underprescribing proposed by IBME) (on file with author).

For a full account from the perspective of Compassion in Dying, see Stolberg S.G. , “Amid Calls for Pain Relief, New Calls for Caution,” New York Times, Oct. 13, 1998, at F7.

See Lethal Drug Abuse Prevention Act, S. 2151, 105th Cong. (1998).

This figure is based on a search of NPDB and FSMB's data base.