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

Unless you get a prompt response to your complaint, taking your complaint to professional organizations may be the lever you need. It's also a public service because you can be almost certain that others have also suffered unnecessarily.

  1. If the patient is a participant in an HMO, go beyond the hospital to the HMO's patient omsbudsman. Phone in the complaint to protect your loved one and then follow up in writing. All managed care plans have employees who are paid to listen to concerns and to help and improve care. The hospital should be able and willing to provide a contact number. Although it is easy to be cynical about managed care, your HMO is no less responsible that any other care facility for pain management. Some states, including California and Florida, mandate pain care or referral to experts.

  2. If the patient's care is provided or paid for by an HMO, you can also contact the state HMO regulator, usually the state insurance commission. All states have employees who monitor managed care quality and assist patients in making complaints. See a list of state HMO regulatory authorities and contact information. HMOs really do not like to have to deal with regulators.

  3. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has established and publicized pain assessment and management requirements that will be part of the organization's review of every accredited hospital and nursing home. Although the pain management standards are not yet incorporated into JCAHO's scoring, they will be used in JCAHO's 2001 surveys. Other JCAHO standards relating to patients' rights also require hospitals and nursing homes to respond to and resolve patient complaints quickly. Complaints are easily made by writing or emailing JCAHO. Click here to learn how. Be sure to make it clear that you have two complaints: the failure to treat pain and the failure to resolve your complaint quickly.

  4. If the patient is Medicare-eligible, file a complaint with the Fiscal intermediary (the insurance company that actually audits and pays the bills submitted by your doctor and hospital on behalf of Medicare) and with Medicare's federal administrator, the Center for Medicare and Medicaid Services (CMS--until recently called the Health Care Financing Organization or HFCA). See list of regional offices and information on how to file a Medicare complaint. You can initiate your complaint by telephone to the regional office but should follow up in writing. The Medicare Manual on Fraud and Abuse (which includes malpractice and substandard care paid for by Medicare in some circumstances) makes it clear that "work it out with the provider" is not an acceptable response to a complaint.

  5. File a complaint against the doctor with the state medical licensure board.

  6. If the need is immediate, make your complaint first by telephone. But be sure to follow up with a written complaint that references your initial telephone report and the name of the state board contact with whom you talked. Complaints do not have to be elaborate, but a clear summary of the facts involved is important. Identify the name of the doctor, name of the facility, patient condition, and efforts already made to resolve the complaint.

    It is very important for medical boards to hear about undertreatment of pain. Boards have been quick to censure doctors for prescribing "too many" opioids. Pain patients, by and large, have been the losers. They need to understand the flip side.

  7. Consult an attorney about medical malpractice (civil negligence) and tort claims for intentional infliction of severe emotional distress. These claims are either filed with local courts or, in some states, resolved by mandatory arbitration.

  8. The Palliative Care Law Project believes that care will improve rapidly when hospitals, nursing homes and managed care companies begin to recognize that failing to treat pain is a potential liability. Until recently, these claims have been difficult because of concerns that the "standard of care" for pain and symptom management were poorly defined. That time has passed. Clear standards are now available from many sources, notably JCAHO, the AMA, EPEC and professional specialty boards.

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    This content is provided by the Project on Palliative Care Law of the Bazelon Center for Mental Health Law. For more information visit the Project's web site at www.painlaw.org.