: Patients' Right to Palliative Care : Medical Malpractice

Failure to Treat Pain and Other Treatable Symptoms Can Be Medical Malpractice

A medical practitioner who significantly neglects a patient's pain may be commiting malpractice. The patient or survivors may be entitled to monetary damages. Malpractice is a negligence action generally defined by state law, and usually must be proven by a "preponderance of the evidence." Remedies are also defined and limited by state or federal law. The discussion here is general. You must consult an attorney in your state about your experience.

The Elements of Medical Malpractice

A legal duty must be owed to the patient. Usually this is established by showing that a doctor-patient, hospital-patient or nurse-patient relationship existed.

The doctor-patient relationship is rarely hard to prove. Hospital liability can be more problematic. Some doctors are hospital employees or hospitals are otherwise responsible for their and negligent acts. Not all people who take care of hospital patients are hospital employees, however. Many emergency room, respiratory and X-ray services are run by independent contractors of the hospital. In such cases, the hospital is not likely to be liable for their conduct unless they have been put on notice. The contracting groups and the individuals involved would become the defendants.

The actual legal duty is to treat the patient with the "ordinary skill and care required of one in the profession in the community."

This comparative standard requires, for example, that specialists exercise the skill and care of other similarly trained or certified specialists. An important question under state law is "what constitutes the community?" If none of the doctors in a hospital aggressively treats cancer pain, is your doctor liable for ignoring your pain? Courts approach this question variously. In some states the answer would be "no."

The better and more prevalent rule is that members of the medical profession should be held to the standard of the broader, informed, medical community. These standards can be found in:

Medical opinion has solidified around the fact that opioids can and should be considered for treatment of chronic intractable pain. There is also a professional consensus. Sometimes the standard of care is set by statute. For example, in California the Pain Patients Bill of Rights requires doctors and HMOs to treat pain adequately or to refer the pain patient to a specialist. Many states have statutes and medical board guidelines that endorse use of opioids for chronic pain under specified practice requirements.

How does a patient show failure to meet the standard of care?

The burden of proof is on the patient/plaintiff to show what the standard of care is and that the health care provider failed to meet it. Many doctors, particularly those trained more than ten years ago, are very reluctant to treat serious pain with opioids unless the patient is at death's door (and sometimes not even then). They are often very unwilling to prescribe adequate amounts over a longer period of time. These outdated notions do not constitute a standard of care.

A patient's advocate would want to show that medical standards and guidelines encourage the use of opioids to treat chronic pain. There is also a medical consensus that use of opioids to treat pain in terminally ill patients does not cause respiratory depression and death.

A patient has to show that the doctor's failure to meet the standard of care was the principal cause of the injury.

It can be very difficult for a patient to show that he or she has been damaged by failure to meet the standard of care when the doctor has failed to treat pain but has provided medical care that is otherwise adequate. A substantial body of law suggests that a patient cannot get financial compensation for "pain and suffering" without proving first that he or she experienced some tangible injury.

There is, however, no doubt that pain alone is physically and emotionally damaging. Untreated pain can "rewire" the neurological pathways so that later pain is worse or more persistent. It can reduce bodily resources so that death is hastened. Chronic pain patients who lose their ability to function productively suffer lost wages and other concrete damages. Spouses and partners may suffer the loss of consortium if the patient is in such pain that he or she cannot maintain relationships.

Failure to respect a patient's advance directive is medical battery. In contrast to a claim of medical malpractice for failure to meet the standard of care, a claim of medical battery alleges an intentional tort. This approach is discussed in a separate section of the reporter.

Advocates need to include causes of action for substandard pain management so that we can develop and inform the law.

Please return to this site for fuller development and news of cases.

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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