The Debate on Elder Abuse for Undertreated Pain

Abstract

Presented is a review of the pain management provided to an elderly male patient dying of mesothelioma in an acute care hospital and, subsequently, in a nursing home. Discussed are the medico-legal aspects of the case, including the patient's survivors' efforts to hold the treating physicians, hospital, and nursing home accountable for inadequate pain management through complaints submitted to the state medical board, the state department of health services, and the Center for Medicaid/Medicare Services, and in state court.

A Brief History of the Opioid Epidemic and Strategies for Pain Medicine

“…Pharmaceutical companies heavily pushed the use of opioids as a humane treatment option, often using paid physician consultants to expound on the safety and benefits of opioids use. Not prescribing opioids for a patient with pain risked being labeled as inhumane, often even to the extent of litigation for the under-treatment of pain [ 25 ]. Trainees in pain medicine as well as other medical specialties were taught to rely more on opioids for pain treatment.…”

Undertreatment of pain in older adults

“…The existence of statutes of limitations and award caps for medical malpractice has contributed to recent charges against nurses for elder abuse in cases of pain undertreatment in older patients. 6 Each individual state has a statute that specifies what elder abuse entails for that specific state. There are several types of elder abuse: physical abuse, neglect, or a deprivation of care that results in physical harm, pain, or mental suffering of an elder.…”

“…7 Some authors have even claimed that the failure to treat pain or reckless undertreatment of pain in older patients can be legally characterized as elder abuse. 6,8,9 Previous regulatory efforts to improve pain management include the enactment of laws to permit the therapeutic use of opioids for chronic pain treatment, the incorporation of relief of pain into professional codes of ethics and standards of practice, and the addition of the requirement for pain-management standards in health-care systems. 10 As of 2001, the Joint Commission has had standards for health-care agencies that validate a patient's right to have pain assessed and treated.…”

Collaborative Practice

“…In fact, the Pain Relief Act of 1996 works to protect the prescriber from more restrictive and less up‐to‐date state statutes. Although some physicians have been sanctioned for their treatment of patients’ pain with opioid analgesics (Johnson, 1996), recent lawsuits filed against medical professionals charging elder abuse because of undertreated pain (Rich, 2004; Shapiro, 1996; Tucker, 2004) have resulted in lost licenses and multimillion dollar settlements. Although similar lawsuits have not been described in the pediatric pain literature, these cases set legal precedence, and it is likely only a matter of time before parents begin suing for child abuse.…”