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|American Society for Action on Pain|
NOVEMBER 1994 - SACRAMENTO MEDICINE
By Harvey L. Rose, MD
In the fall of 1990, three events signaled a new era in the use of opioids for the management of chronic pain -- particularly non-malignant pain:
(1) SEDMS published "The Painful Dilemma: The Use of Narcotics for the Treatment of Chronic Pain;"
(2) Governor Deukmejian signed into law Senator Leroy Greene's SB 1802, the Intractable Pain Act, which protects physicians from unwarranted intrusion by regulatory agencies in the treatment of chronic pain with controlled substances. Under this law, a physician cannot be disciplined by the Medical Board for such treatment as long as a consultation was obtained from an appropriate specialist and good records were maintained on the patient;
(3) The AMA published "Balancing the Response to Prescription Drug Abuse," after becoming aware of the problem. As Dr. James Sammons stated, "The war on drugs should not be a war on patients." But it has been a war on patients and physicians alike.
In November 1990, I gave testimony before the Medical Board of California (MBQ and asked them to communicate to the physicians of this state through their Action Report the significance of the year's prior events. Finally, in June 1991, the Action Report carried an article on the use of controlled substances for the management of chronic pain. While the article did mention Senator Greene's bill, no mention was made of "The Painful Dilemma."
In October 1992, Senator Greene held hearings at the State Capitol regarding the Intractable Pain Treatment Act because he was receiving calls from doctors informing him that the regulatory climate had not improved at all. At the hearing, physicians and patients testified about the problems they encountered with prescribing and obtaining controlled substances for chronic pain, but the Medical Board refused to admit there was any problem. On October 27, The Sacramento Bee reported "Legal Fears have Doctors Under-prescribing Painkillers," and the following day Ken Wagstaff resigned as director of the MBC over an internal scandal. Governor Wilson subsequently appointed Dixon Arnett, a former Republican assemblyman, to head the MBC. Senator Greene, who knew Arnett from their days in the legislature, met with him and expressed his concerns. Arnett, through friends who had encountered difficulty getting medication for the relief of chronic pain, was aware of the problem and set up a task force to look into the situation. In its November 4, 1993 report, the task force recognized that the undertreatment of chronic pain was a greater problem than so-called "excessive prescribing." After several hearings, the task force's statement on prescribing controlled substances for chronic pain was published in the July 1994 Action Report (the guidelines are to be published in an upcoming action report). In reference to the report, Arnett was quoted in The Bee (8/11/94), saying "Doctors won't have the Medical Board to blame anymore(for undertreatment of pain)." In addition, Arnett said in his letter to task force members that he wanted physicians to achieve a certain level of comfort when it comes to prescribing these drugs.
In November, Proposition 161, "Physician Assisted Suicide," appeared on the state ballot. A coalition of religious groups strongly opposed to the initiative spent large sums of money to defeat it, which they did, 54:46 percent. These groups came to realize that suicide was not the real issue at stake; rather, it was the pain. Cavalier and Associates, the same group that ran that campaign against Proposition 161 formed the California Pain Management Coalition. They worked with Assemblyman Richard Polanco, who introduced AB 2155 calling for a pain management advisory committee within the attorney general's office to advise on pain matters. The wife of an administrative assistant to Assemblyman Polanco had chronic pain and had experienced difficulty obtaining pain relief. Her doctors had been afraid of her getting "addicted" to opioids, but I maintain it was really the scarlet letter of "arrest" that kept her from getting what she needed to alleviate her pain.
AB 2155 passed that state legislature but was vetoed by Governor Wilson. In his veto message, however, the governor called for a pain summit to remove the impediments to adequate prescribing: "The proponents [of AB 21551 make a compelling argument that the medical community and the law enforcement community need to work together in a cooperative fashion to make certain patients are receiving medically necessary pain treatment. I am directing ... the various boards... to overcome obstacles that contribute to inadequate pain management." 10/8/93
In 1989, the American Pain Society (APS) formed a new committee on analgesic regulatory issues. Ronald Blum, MD, chief of oncology at New York University, was the committee's first chairman. In 1987, Dr. Blum had been arrested in his office by narcotic agents for alleged overprescribing of Diluadid to his cancer patients.
They finally reduced the charges against him to not registering his patients is "ilarcotic addicts" as required by New York law. The second chair of this committee was Al Brady, MD, an oncologist from Portland, Oregon who had also been arrested on charges similar to Dr. Blum's. As a member of this committee, I worked with C. Stratton Hill, MD, head of oncology at MD Anderson Cancer Center in Houston. He was the author of The Intractable Pain Treatment Act, which had become law in Texas in 1989. We adopted this law, made a few changes, and it became law in California the next year.
William Marcus, deputy attorney general in the Los Angeles office, became a member of the APS' analgesic regulatory committee and gained awareness of how regulatory agencies had created a climate that was not conducive to prescribing narcotics for chronic pain patients.
The pain summit was held in Los Angeles in March 1994 with Senator Greene, as well as experts from all over the country in medicine, nursing, pharmaceutical manufacturing, and law enforcement, in attendance. At about the same time, the Agency for Health Care Policy Research came out with cancer pain guidelines, acknowledging that at least half of all cancer patients are undertreated for pain. Certainly, addiction should not be an issue in deciding how much pain relief cancer patients can receive. The report on the pain summit, which was released in July 1994, stated that patients had a right to relief of their pain and suffering. The following was the only underlined statement in the summit report: "We should create by statute a positive legal duty for physicians to relieve pain." Included in the summit report was a chronology of events that had led up to the summit. The first event listed was Senator Greene's Intractable Pain Treatment Act.
In June 1994, the 6th District Court of Appeals published a decision in the Peopic vs. Schade case. Among other charges, Dr. Schade was accused of illegally prescribing controlled substances to addicts (of course, these so-called addicts were actually chronic pain patients). Dr. Otto Neubuerger and I testified on Dr. Schade's behalf. One of the pivotal issues as seen by the court of appeals was the definition of addiction. In 1989, SB 711, another bill by Senator Greene, included a definition of addiction. It was passed by the legislature but vetoed by.Governor Deukmejian.
The appellate court felt that if the trial court could not provide a definition of addiction, then how could it convict Dr. Schade for treating addicts? It overturned that part of Dr. Schade's conviction by 2:1. While the dissenting justice felt that Dr. Schade still should have been found guilty, he caught the essence of tile problem in his opinion: "To be sure, there was abundant and divergent testimony during the course of this trial devoted to the meaning of addiction as that concept relates to pain management. It was apparent that the medical community is divided on the question of the appropriate use of narcotics for treatment of patients in chronic pain. One thing made clear by the expert testimony is that there is no commonly accepted medical standard by which to measure how much is too much to prescribe for any given patient presenting with the complaint of chronic pain. As appellant testified, each case will depend upon the doctor's assessment of the particular patient's level of comfort and ability of function." (Daily Appellate Report, 6/17/94:8291).
Part of my own testimony, quoted in the appellate courts decision, reads as follows: "Dr. Rose testified that he has prescribed narcotics to chronic pain patients with nonmalignant ailments. According to Dr. Rose, the quality of life is the bottom line and the doctor should be able to prescribe narcotics. when necessary to restore function in the patients' lives." (DAR, 6/17/94:8275).
With the virtually simultaneous release of the Medical Board's task force statement and
the governor's pain summit report this year, there is no turning back. Once the full
implementation of these documents is realized, California will become the first political
unit on the planet where the undertreatment of pain and suffering will be considered
illegal. All members of the health care team will have not only a professional obligation
but a statutory positive legal duty to effectively relieve their patients' pain and
suffering, and no longer will physicians have to tell their patients in pain to "just
learn to live with it."
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