Pain & End of Life Issues


The literature of the health care profession has documented a serious problem regarding the undertreatment of pain and the failure to effectively address suffering in the clinical environment. The two most serious barriers to solving this problem are a lack of education among healthcare providers about palliative care and a fear that prescribing controlled substances, even when they are the only way to relieve a patient’s pain, will result in regulatory and legal consequences. In the past several years, state attorneys general have become increasingly aware of the problem and willing to use their offices to improve the quality of end-of-life care in their states.
In 2002, more state attorneys general became further involved in palliative care policy when the National Association of Attorneys General (NAAG) launched the End-of-Life Healthcare Project. The NAAG End-of-Life Healthcare Project has provided an invaluable resource for attorneys general working to improve palliative care for their constituents.
State legislatures have an important role to play in improving palliative care education, and New York’s recent passage of the Palliative Care Education and Training Act is an important first step.
Overcoming physicians’ fear of legal repercussions is not presently possible since state attorneys general do not have the power to override the DEA’s authority to investigate “merely on suspicion that the law is being violated, or even just because it wants assurances that it is not” (Interim Policy Statement). On March 21, 2005, 32 attorneys general signed an official comment, which, in part, asked the DEA to focus on factors that differentiate criminal drug activity from legitimate medical practice in its investigations.  With its final policy statement, the DEA refused to comply with this petition.  However, repeated petitions on the part of attorneys general are anticipated in the near future.


Federal Resources:
National Association of Attorneys General (NAAG) End-of-Life Healthcare Project:  Initiated in 2002 by Oklahoma Attorney General Drew Edmondson, who chaired NAAG that year. The project identified three areas in which attorneys general could make a difference in their states: pain management, recognition of the wishes of people at the end of their lives, and ensuring quality end-of-life healthcare. A report was issued in 2003 with the goal of educating attorneys general about the issue.
DEA FAQ on Pain Treatment (released and subsequently withdrawn Oct. 6, 2004)
The DEA released a set of guidelines regarding the dispensation of pain medication which has been twice revised, yet still suffers from failing to clearly differentiate between criminal activity and legitimate medical practice.
National Pain Care Policy Act 2003: This piece of legislation is a response to the Decade of Pain Research declared by Congress, which began January 1, 2001. The goal of the bill is the too-long-awaited federal recognition of pain as a critical health care crisis in the United States. 
State Resources:
Palliative Care Education and Training Act (codified as amendment to New York Public Health Law § 63-f at § 2807-n) (2007): The act provides significant funding for training physicians in pain management and allows for the development of a New York State Palliative Care and Education Council, the establishment of Department of Health-designed Centers for Palliative Care Excellence, and the formation of Department of Health-certified palliative care practitioner resource centers. PEAT is used to evaluate how much grant funding each center will be allotted.
New York Academy of Medicine PEAT (Palliative Education Assessment Tool): An instrument by which medical schools can assess their curricula with regard to content on end-of-life care in order to plan and implement measures to improve medical education across domains including palliative medicine, pain, neuropsychologic symptoms, ethics and the law, and patient/family/caregiver/nonclinical perspectives on end-of-life-care.


... A remarkable and disturbing phenomenon slowly crept into the collective consciousness of the American public in the last decade of the 20th Century: health care institutions and professionals, physicians in particular, did not take the relief of patient pain and suffering seriously. ... Remarkably, one of the most consistently cited barriers to effective pain relief in patient care is lack of physician knowledge and skill in the assessment and management of pain. ... The model act, by contrast, protects physicians who can demonstrate "substantial compliance" with an "acceptable guideline for pain management. ... Perhaps more importantly, the new priority for pain management in patient care is stressed in other chapters of the JCAHO standards as well, including those pertaining to the assessment and care of patients, rehabilitation, patient education, continuum of care, and improving organizational performance. ... In 2003, the California Medical Board (CMB) became the second state licensing board to take disciplinary action against a physician for failure to provide appropriate pain relief. ... The other major player in the regulatory barrier to effective pain management is the federal Drug Enforcement Administration (DEA). ... It imposes the additional responsibility, for example, to assess whether prescribing an opioid analgesic to a patient who requires one might, in the context of the patient's living situation, increase the risk that the controlled substance is diverted to non-clinical and hence illegitimate use. ...
Rich, Ben A. “The Politics of Pain: Rhetoric or Reform?” 8 DePaul J. Health Care L. 519, Spring, 2005. 
Criteria-driven policy analysis resources from the University of Wisconsin Pain and Policy Studies Group (PPSG) evaluated drug control and professional practice policies that can influence use of controlled substances for pain management, and documented changes over a 3-year period. Additional research was needed to determine the extent of change, the types of messages contained in the policies, and what has contributed to changing policy content. Four research aims guided this study: (1) evaluate change between 2000 and 2003 of state policy that can affect pain relief, (2) describe content differences for statutes, regulations, guidelines, and policy statements, (3) evaluate differences between policies specific to pain management and policies governing general healthcare practice, and (4) compare content of policies specific to pain management created by healthcare regulatory boards to those created by state legislatures. Results showed that more current policies, especially policies regulating health professionals, tend to encourage pain management and avoid language that restricts professional decision-making and patient treatment. In addition, pain policies from healthcare regulatory boards were generally less restrictive than statutes or policies that govern general healthcare practice. These findings suggest that the positive policy change results primarily from state medical, pharmacy, and nursing boards adopting policies promoting pain management and the use of opioids, while containing few if any restrictions. Despite this improvement, further progress can be made when states continue to abrogate additional restrictions or clinically obsolete provisions from policies. PPSG policy evaluations provide guidance to lawmakers, healthcare regulators, and clinicians who are striving to achieve balanced policy, an attainable but redoubtable goal, to benefit patient care.
Dilcher, Amy. 13 Annals Health L. 81, 2004.
Racial and ethnic minorities are at higher risk for the ineffective treatment of pain. While others have investigated racial and ethnic disparities in access to health services generally, this article represents the first comprehensive review of the literature on racial and ethnic disparities in the treatment of pain. In addition to conducting this review, the author also outlines some of the causes for the disparities as well as provides suggestions for future health-services research in this area.

Bonham, Vence L. Journal of Law, Medicine & Ethics, Vol. 29, No. 1, 2001.
... The benefits of the science and technology referred to above have resulted in remarkable enhancements in health and life expectancy. ... In setting this initiative, the AMA has four targets: 1) health professionals, including both physicians and related health professionals; 2) legislative and regulatory bodies; 3) educational institutions, and; 4) the public, including patients, families, and communities. ... As a result of the introductory presentation of the program at the two national meetings, the EPEC office received an overwhelming number of requests for training from physicians and health care organizations, many of the latter asking to send teams of physicians for the training. ... In the end, 270 applicants were selected, including some from related health professions. ... Such a range of skills and competencies calls for teamwork among a wide variety of health-related and other professionals: including nurses, pharmacists, social workers, speech, physical and occupational therapists, as well as lawyers and clergy. ... Rather, without the collaboration of a highly skilled and devoted team of health professionals, health care at the end of life will remain hopelessly mired in the ignorance and lack of coordination of the past--and present. 
Baldwin, Dewitt C., MD. “The Role of the Physician in End-of-Life Care: What More Can We Do?”  2 J. Health Care L. & Pol'y 258, 1999. 


In a 4-3 decision, the Montana Supreme Court has ruled that physicians who help terminally ill patients die are protected from prosecution. However, the Court did not comment on whether physician-assisted suicide is a right guaranteed by the Montana state constitution.
La Crosse, Wisconsin has established a system of end-of-life care that has resulted in the highest rate of adults with completed advance directives in the country, as well as drastically lowered costs within the last years of patients' lives. These advance end-of-life consultations, which are not covered by Medicare, have been promoted by the organization Respecting Choices, founded by medical ethicist Bud Hammes.
“Slow medicine” is a healthcare approach, grounded in research at the Dartmouth Medical School, that encourages less aggressive — and less costly — care at the end of life. Slow medicine encourages physicians to put on the brakes when considering care that may have high risks and limited rewards for the elderly, and it educates patients and families how to push back against emergency room trips and hospitalizations designed for those with treatable illnesses.
New research shows huge, unexplained variations in the amount, intensity and cost of care provided to Medicare patients with chronic illnesses at the nation’s top academic medical centers (the last two years of life ranges from an average of $93,842 for patients who receive most of their care at U.C.L.A. Medical Center to $53,432 at the Mayo Clinic’s main teaching hospital in Rochester, Minn.), raising the possibility that the government could save large amounts of money. 
Arizona's Life Care Planning Packet, includes five documents that deal with often-vexing topics such as artificial life support, resuscitation and care if you become incapacitated. 
Article provides details on the case of the United States v. William Eliot Hurwitz, and a brief history of the arc of prosecution that has recently been leveled against doctors. It portrays a battle over who sets the rules for treating patients who are in pain: narcotics agents and prosecutors, or doctors and scientists.
Oklahoma Attorney General Drew Edmondson uses his inaugural address as president of NAAG to address the importance of end-of-life-care.