This is not a phantom pain: Liability risk grows for poor pain management
Provider sued after man dies in pain, CMS investigates fraud
A California nursing home is being sued for elder abuse and investigated for Medicare fraud after a resident died in terrible pain, with his family charging that clinicians ignored his pleas for medication despite charting his severe pain. A risk management expert says the case should be a shocking reminder that undertreatment of pain remains a serious liability risk, perhaps even a growing risk as the standard of care more firmly requires adequate pain treatment.
The case is almost a carbon copy of a case from two years ago in which a California doctor was ordered to pay $1.5 million for undertreating a dying man’s pain. The hospital’s records, dutifully maintained in compliance with standards on pain management, proved to be the doctor’s undoing because they showed the patient was in terrible pain and that the doctor must have been aware of it.
Many of the facts are the same in the current case, says Kathryn Tucker, JD, director of legal affairs with the Compassion in Dying Federation in Seattle, an advocacy group that supported the plaintiff in both cases. In another case, a jury awarded $15 million, half of it punitive, from a nursing home where a patient had died in pain. The patient’s family alleged that a physician had ordered morphine for the man’s pain, but a nurse refused to administer it because she feared the patient would become addicted. She gave the man Tylenol instead.
In the current case, an 85-year-old man dying of lung cancer was denied adequate pain management despite his advance directive calling for all possible pain relief and his frequent reports to the nursing staff that his pain was intolerable.
The $1.5-million verdict of two years ago was a wake-up call to health care providers, proving that courts would hold health care providers accountable for inadequate pain management, Tucker says. There is even less doubt now, she adds.
"Two years have gone by and even more pain guidelines have been published," Tucker says. "A clinician in any of the 50 states who is just ignorant of modern pain practices is at risk of a lawsuit like this and the facility where it happens is going to be involved just as much."
Suit alleges pain reports were ignored
The lawsuit filed in the Superior Court of California, County of Contra Costa, is an action for elder abuse because state law does not allow recovery for pain and suffering after the patient dies. The family also alleges intentional infliction of emotional distress, fraud, unfair business practices, and other statutory violations. The suit is against Mt. Diablo Hospital Medical Center, the Bayberry Care Center (where the patient was transferred for long-term care), and three physicians. The defendants did not return Healthcare Risk Management’s telephone calls seeking comment.
The complaint claims that "from Jan. 18, 2001, through the day of his death on Feb. 12, 2001, Lester Tomlinson’s severe and constant pain was callously ignored, never effectively treated and allowed to progress by defendants without any intervention which would comply with modern concepts of pain management. Lester Tomlinson, who had gone to the effort of clearly expressing his wishes to live his last days with maximum control of his pain, nevertheless spent the last month of his life in agony, confusion, and indignity."
Nurses at the hospital and the nursing home assessed Tomlinson’s pain level regularly but he did not receive adequate medications, according to the complaint. While Tomlinson was often unable to rate his pain either because he was hard of hearing or because of his confusion, he did rate his pain on many occasions and the pain level was almost always high. He frequently reported pain levels up to 9, and his initial assessment on admission indicated that he frequently experienced pain he rated as 10. The lawsuit alleges he sometimes received no medication or at other times wholly inadequate medication, despite his family member’s pleas for better pain management.
Risk managers should take the current case as a warning and ensure that such an incident could not happen in their own facilities, says Grena Porto, RN, ARM, DFASHRM, a health care risk manager and principal with QRS Healthcare Consulting in Pocopson, PA, and past president of the American Society for Healthcare Risk Management. Pain management must be taken seriously or you can count on a major lawsuit, she says.
"Pain relief is the same as saying that the patient needs antibiotics or surgery," she says. "If the patient needs it, you provide it. You can’t have a double standard about treatment that says there’s real treatment and then there’s pain relief."
Porto is particularly interested by the inclusion of the long-term care facility in the lawsuit. She says there may be plenty of blame to go around if the allegations are true, but she hypothesizes that, in particular, the nursing home’s experience may illustrate a growing risk management problem. More seriously ill and dying patients are transferred to long-term care settings than in past years, she says, instead of staying in a hospital. That puts a greater burden on nursing homes to deal with issues such as pain management that they may not have handled much in the past.
"There are tons of ramifications in the long-term care setting," she says. "They need to do a lot of education and skill building for the staff in nursing homes, which is an area in which the staff might not have really studied before."
Tucker also says the allegations against the nursing home are especially troubling.
"Here’s a patient who was discharged from an acute care facility to a nursing home and his chief complaint was excruciating pain associated with terminal lung cancer," she says. "Three and a half days go by before he receives pain medication of any kind, and then it’s inadequate."
Porto also cautions risk managers not to be distracted by the fact that two of the major cases alleging undertreatment of pain have been brought in California. Such lawsuits can be brought anywhere, she says, and providers nationwide also have to consider the risk of committing fraud or violating accreditation requirements. Providers across the country have been accused of defrauding the federal government when patient care, including pain management, did not meet acceptable standards of care, she says.
"Pain management is part of the standard of care. If you’re not providing the standard of care but you’re billing for the standard of care, that’s fraud," Porto says. "So you’re risking not only civil liability but also charges of fraud and abuse."
The nursing home in question is being investigated by the Centers for Medicare and Medicaid Services for potential fraud related to the case. Julie Sadovich, manager of the long-term care operations branch at the CMS regional office in San Francisco, says the matter was referred to a state agency for investigation. The outcome of that investigation could lead to federal charges of fraud and abuse, she says, in addition to whatever sanctions the state may impose.
"The accusation is very inappropriate pain management," Sadovich says. "We consider that a very serious accusation and intend to investigate it fully."
Clinicians still not educated about pain
Tucker says the biggest hurdle to good pain management is that physicians and other clinicians are not well trained.
"In the 1990s, there was an explosion of information on pain management," she says. "If physicians don’t take advantage of that then they’re not adequately trained to care for patients. There’s also the lingering problem of physicians who are concerned that if they treat pain aggressively they might be scrutinized and sanctioned by the authorities."
That worry is overblown, Tucker says, and there is not enough fear on the other side that physicians will be held accountable for undertreating pain. Compassion in Dying pursues these cases partly to show the real consequences for undertreatment, she says. Progress is being made, as illustrated by the fact that the Medical Board of California recently brought formal charges against one of the physicians involved in the current case. In the previous landmark case, the board officially expressed disapproval for the undertreatment of pain but declined to take action against the physician.
If the case goes to trial, the defendants may have a hard time overcoming the paper trail they generated themselves. Tucker says both facilities documented the patient’s pain but then didn’t treat it, giving the plaintiff’s attorney some strong ammunition.
"When the patient is being charted at a pain level of 8, 9, or 10, like Mr. Tomlinson, and then there isn’t any response taken to bring that pain level down to a tolerable level, that’s where the exposure lies," Tucker says. "If you see a complaint of pain and then the chart shows a prompt response to manage that pain, you’ve managed the risk."
Undertreatment of pain could be a problem that flies below the radar at many institutions, Porto cautions. It is all too easy for people to dismiss pain complaints as an inevitable part of health care, and risk managers also may rely too much on written policies and procedures. They don’t do the patient any good if they’re not used and they may only create a paper trail that will prove inadequate treatment. After all, she says, the hospital and nursing home being sued in California probably had policies on proper pain management; nearly everyone has developed policies in recent years.
Porto urges risk managers to review their organization’s pain management programs to ensure not only that the right policies and procedures are in place, but that they are actually put into use. Meet with department managers and leading clinicians to discuss how pain management actually is delivered on the floors, and look for any signs that what happens in the real world is different from what you wrote in the policies, she says.
"The bottom line is you should not need the threat of liability to make you do something as decent and basic as giving a dying man some relief," she says. "That’s pitiful."
A California nursing home is being sued for elder abuse and investigated for Medicare fraud after a resident died in terrible pain, with his family charging that clinicians ignored his pleas for medication despite charting his severe pain.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content. TESTING
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