Lack of standard of care in pain management

In medicine, patients often experience pain that is untreated or improperly treated, leaving them in severe suffering. Typically, medical professionals are not liable for this. This is a major problem in the field of palliative care.

## Background

Patients experience pain due to many different conditions, such as physical injury, ear infections, fibromyalgia, tissue damage, etc. This is often treated effectively with analgesic pain medication, also known as **painkillers**, with opioids being a prime example.

Unfortunately, analgesic medications are highly abusable, and have a high incidence of abuse and drug addiction. Medical professionals and facilities -- including doctors, nurses, hospitals, pharmacies, and pharmacists -- are subject to a high level of regulation and enforcement. In the United States, laws include the Controlled Substances Act and prescription drug monitoring programs, and agencies such as the Drug Enforcement Administration (DEA) enforce these laws. Sometimes, when doctors have over-prescribed controlled drugs like analgesics, their medical licenses have been yanked, and when pharmacies and pharmacy chains dispense them above certain thresholds, they have been subjected to investigation and adverse law enforcement action. This requires medical professionals to engage in a balancing act of determining the appropriate situations in which to prescribe analgesics for pain. Often, the medical professionals will err on the "conservative" side of under-prescribing rather than over-prescribing analgesics.

Emergency rooms are one of the primary places to which drug-seeking persons and drug addicts go in order to attempt to obtain analgesic drugs to feed drug habits. This has spurred ERs to create certain policies limiting prescribing analgesic drugs.

Unfortuantely, the consequence of the rampant drug abuse and the resulting laws and policies, is that many innocent patients who legitimately need pain medication are denied that treatment, and forced to suffer severely and excruciatingly.

Typically, when the pain is temporary (doesn't result in permanent damage to the patient's body), in most or all jurisdictions especially in the U.S., the medical professionals and facilities will have no legal liability for the patient's pain and suffering; that is, they have the impunity to deny pain treatment, and it is often in their interest to do so.

In addition, on some occasions, patients undergoing anesthesia (sedation) are not properly anesthitized, typically due to mistakes by anesthesiologists and surgeons. Patients have reported being in an awake yet immobilized/paralyzed state in which they experience all of the pain with the surgery, yet could not do anything to stop it, and were left with lifelong emotional scars of the horror of undergoing this pain. Patients who have undergone this type of experience are usually left with no legal recourse.

Medical malpractice, at least in most jurisdictions of the U.S., typically involves a standard of care that must be breached in order to create liability. In the case of temporary untreated pain as well as the aforementioned case of patients who weren't properly anesthitized, there is not legally considered to be any standard of care that has been breached. Victimized patients have often attempted to contact medical malpractice attorneys only to be dismissed out-of-hand because the standard of medical care only involves permanent injury and not temporary pain.

## Arguments in favor of regarding as an injustice

Patients should not be forced to suffer severe, excruciating pain at the whim of medical professionals, especially in emergency medical situations. As a society we typically regard that all living things (no less people) should be treated humanely, and thus no person who is in treatable pain should be forced to suffer by being denied medication that he/she legitimately needs. Leaving the judgment call about whether to prescribe analgesics to people in pain purely to the discretion of medical professionals often results in **medical profiling** in which people can be discriminated against based on their appearance or other unjust factors. If there is doubt about whether a person legitimately needs analgesics, medical professionals should err on the side of providing the palliative care instead of avoiding over-prescribing. The legal system should allow for medical professionals to be held accountable for malpractice, via the awarding of damages, when a person needlessly suffers severe or excruciating pain that could have been treated; this is needed to make the victims whole as well as to deter this ongoing conduct by medical professionals.

## Arguments against regarding as an injustice

Medical professionals and facilities have enough to worry about in caring for their patients. More liability would inhibit their ability to do their jobs. The current system is effective in ensuring that drug-seeking and drug-addicted patients are not given access to analgesic drugs that they shouldn't have, which is a major problem in society.