Risk Management in Home Health Care: Liability for Substandard Pain Management

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By Elizabeth E. Hogue, Esq.

Home health providers need to be aware that patients and their families have initiated suits against providers for substandard pain management. One of the most recent such cases is Bergman v. Chin.

Mr. Bergman, as reported in The Washington Post on May 7, 2001, p. A3, was a lifelong smoker who was admitted to the hospital in February, 1998, with complaints of severe low back pain. Mr. Bergman also complained of recent weight loss and pain from a compression fracture of his spine. While undergoing tests, Bergman received intravenous Demerol in 25 or 50 milligram doses as needed per the orders of his physician, Dr. Chin. When asked to rate his pain on a scale of 1 to 10, with 10 the most severe, Bergman consistently rated his pain between 7 and 10 despite the medication he received.

Bergman had a biopsy of his lungs, the results of which were inconclusive regarding the presence of cancer. When Bergman received this news, he immediately declined further tests and/or treatment and stated that he wanted to receive hospice care at home. On the day Bergman was discharged from the hospital, he rated his pain as a 10.

Chin then prescribed Vicodin tablets even though Mr. Bergman had difficulty swallowing. When Vicodin proved insufficient to manage his pain, Dr. Chin ordered injections of Demerol and application of a slow-release patch of Fentanyl.

After three days of pain ratings of 10, despite the medications Bergman was receiving, his nurse telephoned Dr. Chin to ask him to prescribe liquid morphine. Dr. Chin did not prescribe the requested medication.

At that point the patient’s family contacted another physician who had previously treated Bergman to ask for a prescription of liquid morphine. The physician wrote the requested script and Bergman received the medication. He died the next day.

The family sued under a theory of negligence. In order to win such lawsuits, patients and/or their families must prove the following:

The provider owed a duty of reasonable care to patients, including a duty to properly manage pain.
The agency, staff and physician breached this duty when they failed to properly assess pain, administer pain medications and/or take appropriate action to relieve pain.
The failure of agencies, staff and physicians to properly manage patients' pain caused injury or damage to the patient.

If these requirements are met, patients’ families are likely to win their lawsuits against providers for substandard pain management.

In addition, substandard/negligent pain management for which the Medicare, Medicaid and other federal and state programs reimburse agencies may constitute false claims, a violation of the federal False Claims Act and a potentially serious violation of fraud and abuse prohibitions.

The patient's family in Bergman v. Chin was awarded damages in the amount of 1.5 million dollars.

Two other lawsuits have also resulted in damage awards based on substandard pain management. According to The Washington Post, a jury in North Carolina awarded $15 million damages in 1990 after a verdict against a nursing home. The basis of the lawsuit was that a nurse at the facility failed to administer prescribed pain medication to a terminally ill patient. In a similar case in South Carolina in 1997, a judge awarded $200,000 in damages for pain and suffering caused by inadequate treatment of pain in a patient with cancer.

Although staff members generally have knowledge of and experience with pain management, staff must be aware of the potential liability associated with substandard pain management. Staff may, for example, encounter instances in which physicians who are less familiar with effective pain management may order medications that are not effective or may fail to order needed medications altogether.

In such instances, staff members have an obligation to make certain that patients’ pain is managed appropriately. This duty includes seeking appropriate orders when inappropriate orders are received from patients' attending physicians. If necessary, staff must refuse to carry out orders for inappropriate pain management.

Agencies' Medical Directors/consulting physicians should also advocate for patients and staff with regard to appropriate pain management with attending physicians. Although it is not fair, the best communication is still likely to be physician to physician with regard to appropriate pain management.

Patients and their families are increasingly informed about the importance of and mechanisms to achieve appropriate pain management. Agencies are, therefore, more likely to incur liability for their failure to achieve pain management within applicable standards of care. Fraud and abuse enforcers are always interested in such instances of substandard care for possible enforcement action.

(To learn more about risk management in home care in a book called Legal Liability, send a check for $30.00, including shipping and handling, to Elizabeth E. Hogue, Esq. at the above address. To learn more about substandard care as a form of fraud and abuse in a book called Preventing Fraud and Abuse, send a check for $30.00, including shipping and handling, to Elizabeth E. Hogue, Esq. at the above address.)

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