painlaw.org : Patients' Right to Palliative Care : Taking Complaints Beyond the Hospital

Unless a complaint is resolved promptly at the hospital level, a patient whose pain is not treated will have suffered unnecessarily. Advocates or family should not give up, however. Here are steps to take if the hospital and its personnel prove intransigent.

• If the patient's care is provided or paid for by an HMO, contact the state HMO regulator?usually the state insurance commission. Click here for a list of state HMO regulatory authorities and contact information. HMOs really do not like to have to deal with regulators.
• File a complaint with JCAHO if the hospital or nursing home is not helping you get relief. Although the JCAHO pain management standards are not yet required, they will be included in JCAHO's 2001 surveys. In addition, JCAHO standards now in effect require hospitals and nursing homes to respond to and resolve patient complaints quickly.
• If the patient is Medicare-eligible, file a complaint with the fiscal intermediary (the insurance company that actually audits and pays bills submitted by your doctor and hospital on behalf of Medicare) and with the Health Care Financing Administration (HFCA), Medicare's federal administrator. Day-to-day decisions about quality of care covered by Medicare are made by regional fiscal intermediaries?insurance carriers that contract with HCFA to provide first-line Medicare management. They do not want to pay medical providers for inadequate care. A list of HCFA regional offices is provided by the Center for Patient Advocacy in its resources center.
• File a complaint against the doctor on an emergency basis with the state medical licensure board. You can obtain the contact information for your state's medical board (see the Federation of State Medical Boards). If the situation is immediate, make your complaint first by telephone, requesting advice on specific emergency procedures. Complaints do not have to be elaborate. You will need only a clear, short summary of the facts. Identify the name of the doctor, name of the facility, patient condition, the nature of the problem and steps taken to resolve the complaint. It is very important for medical licensure boards to hear about undertreatment of pain. Boards have been quick to censure doctors for using "too many" opioids, with bad effects for pain patients. They need to understand the flip side. Only one state medical board has formally censured a doctor for undertreatment of pain.
• Consult an attorney regarding medical malpractice and "intentional infliction of emotional distress" tort claims. These claims are either filed with the local court or, in some states, resolved by mandatory arbitration. When risk-managers recognize that untreated pain or negligent end-of-life care can cause liability, change will occur. However, every complaint is different and every state has its own body of law.

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