Ethical Issues in Pain Management

Ben A. Rich

The fourth edition of this book was the first to include chapters specifically addressing the ethical dimensions of pain management. This is curious because the duty of physicians to relieve pain and suffering has been acknowledged for centuries. Indeed, this duty has been deemed an essential component of the ethos of medicine, as fundamental as the diagnosis and treatment of maladies. The rise of ethical discourse on the relief of pain and suffering in the late 20th century was prompted by a growing recognition that all too often pain was not adequately treated, and far too many patients unnecessarily endured the pain and suffering engendered by their illness. The fact that failure to adequately treat pain was not viewed until relatively recently as an ethical problem may have been due in large measure to the prevailing perception in medicine that pain was a necessary concomitant of illness which the “good” patient must bear with equanimity. Indeed, that is a common dictionary definition of the adjectival form of the word patient.

In light of the preceding text, one can argue that the traditional view of the ethics of pain management, to the extent that it was articulated at all in the professional literature, provided a basis for undertreating pain, particularly if what was required to adequately relieve pain involved the administration of opioid analgesics. From the time of its development and inclusion in the medical pharmacopeia, morphine, and subsequent synthetic derivatives, has been recognized as a two-edged sword, carrying both the benefit of pain relief and the burden of potential addiction. The widespread phenomenon of undertreated pain seemed to be a product of a risk/benefit calculation by physicians that the risks of addition to opioids were unacceptably high, whereas the benefits of pain relief were relatively inconsequential. Particularly, in the second half of the 20th century, the clinical focus was on formulating a diagnosis and implementing disease-directed therapies, not palliating symptoms.

During the last several decades, however, there has been a gradual but highly significant paradigm shift in the ethics of pain management. Until quite recently, as David Morris insightfully notes in his book, The Culture of Pain, “The everyday medical dealings with pain conceal unacknowledged ethical questions.” Even in the care of cancer patients, Morris continues, the clinical ethos has been tainted by “an unacknowledged moral code expressing half-baked notions about the evil of drugs and the duty to bear affliction.” He concludes with the grim observation that “the ethics of pain management, unfortunately, may not receive proper attention until the first doctor is successfully sued for failing to provide adequate relief.”¹ There was a remarkable prescience to Morris’s suggestion, for in the very year in which his book was published, a jury awarded millions of dollars in both compensatory and punitive damages to the family of a patient whose terminal cancer pain was undertreated. That case is discussed in detail in Chapter 15 of this book. Similarly, the ethical issues pertaining to the care of the dying patient are discussed in depth in Chapter 13, and the laws and policies relating to opioid analgesia are surveyed in Chapter 14.

In the decade and a half since the publication of The Culture of Pain, the ethics of pain management has finally begun to receive the attention, discussion, and debate that had been so starkly absent before. This was the result not only of a heightened sensitivity to the phenomenology of pain and the suffering which it can engender or exacerbate but also of recognition of its multiplicity of sequelae. Also during this period, there was a remarkable shift in the prevailing view about the risk of addiction associated with medically directed opioid use. It is this last item that has undergone yet another significant transformation in the years since the fourth edition of this book was published. In the sections that follow, I consider the evolutionary process of the ethics of pain management and the current state of affairs.

Pain, Suffering, and the Core Values of Health Care

For centuries, the core values of medicine and the other health professions never seemed to be in doubt. They were often, however, encapsulated in vague maxims of uncertain origin and authenticity such as primum non nocere (first do no harm) or “to cure when possible, to relieve often, and to comfort always.” The core ethical principles on which these maxims were grounded—beneficence and nonmaleficence—were unquestionably formulated by physicians during the long reign of paternalism as the overarching paradigm for the professionalpatient relationship. What constituted benefit and harm, and when the zealous pursuit of cure should yield to the provision of comfort, or more radically still, occur simultaneously, was for the physician, not the patient, to determine. In the latter half of the 20th century, particularly but certainly not exclusively in the United States, the evolution of medical jurisprudence and the revolution in bioethics challenged the legitimacy of the paternalistic paradigm. This challenge was grounded on an emerging principle of bioethics—respect for individual patient autonomy. Indeed, by the end of that century, paternalism had been almost completely discredited, replaced by a new paradigm grounded on the legal duty to obtain informed consent (and to accept an informed refusal) supported by and in turn operating in affirmation of the most recent bioethical principle.² The new paradigm for the professional-patient relationship became that of shared decision making.³

Although beneficence and nonmaleficence were retained among the core principles of modern bioethics along with a fourth justice, the clinician was no longer considered the ultimate authority on what constituted benefit and harm in the care of any particular patient. It is, after all, the patient who must endure the rigors of medical interventions and/or the burdens of disease. Thus, in the case of intractable disputes between clinician and patient, the patient has come to be recognized as the final arbiter. The dissenting clinician’s option is to disengage from the relationship (but not precipitously to constitute abandonment) when and if respecting the patient’s wishes compromises professional ethics or personal conscience.⁴ The relief of pain and suffering, however, was not an integral part of this transformative process. Only quite recently have the legal, ethical, and public policy dimensions of pain management and palliative care begun to receive due consideration, thereby properly placing them within the emerging bioethical,
jurisprudential, and sociocultural framework. Providing the details of this process is the task of this chapter, and the others in this section of this book.

THE DUTY TO RELIEVE PAIN AND SUFFERING

When, over three decades ago, Eric Cassell began his seminal article on suffering and medicine in The New England Journal of Medicine, he did not think it necessary to build an extensive case for the proposition that physicians have a duty to relieve pain and suffering. Nevertheless, his initial inquiries into the attitudes of physicians and patients about pain and suffering revealed a curious phenomenon: Contemporary patients and laypersons attached appreciably more significance to that duty than did his physician colleagues.⁵ It is this disparity between laypersons and health care professionals in the prioritization of the need for and duty to provide not only treatment of disease but also relief of distress associated with it that caused, or at least significantly contributed to, the jury verdicts in legal cases alleging undertreatment of pain, which we consider in Chapter 15. If, in the ethos of ancient medicine, the relief of pain and suffering was the essence of beneficence (doing good) and nonmaleficence (avoiding harm), then something transformative took place in the transition to modern medicine. Otherwise, the opening passage of the preface to this book, which substantially expanded on Cassell’s original article, would be incomprehensible. That passage, a remarkably stinging indictment of his own profession, reads, “The test of a system of medicine should be its adequacy in the face of suffering … modern medicine fails that test.”⁶ In it, he analyzes in great depth important distinctions between pain and suffering, including notable instances in which a person can experience pain but not suffer as well as suffer in the absence of pain. However, most pertinently to this chapter and book is his observation that pain is the most common cause of suffering, and people in pain experience suffering when it is severe, uncontrolled, and seemingly without end.

CURATIVE VERSUS PALLIATIVE PARADIGMS OF PATIENT CARE

Continuing with Cassell’s analysis, the willful blindness that afflicts modern medicine with regard to pain and suffering (with the exception of those who specialize in pain management and palliative care) relates to the complex nature of persons and the reductionistic tendencies of modern medical science. He cogently expresses the nub of the problem when he declares, “Bodies do not suffer; persons suffer.” The implications of this proposition are clear but nonetheless potentially controversial: If a clinician cannot relate to the patient as a person, rather than as a body that is merely the locus of some disease process, then he or she cannot even recognize suffering and certainly cannot begin to competently and compassionately respond to it. Unsurprisingly, many clinicians view this as a gross exaggeration, verging on caricature. However, other credible sources bolster Cassell’s point. Consider, for example, the following panegyric of the late Yale surgeon and writer Sherwin Nuland⁷ in his book How We Die the curative paradigm of medicine:

… the challenge that motivates most persuasively; the challenge that makes each of us physicians continue ever trying to improve our skills; the challenge that results in the dogged pursuit of a diagnosis and a cure; the challenge that has resulted in the astounding progress of late-twentieth century clinical medicine—that foremost of challenges is not primarily the welfare of the individual human being, but rather, the solution of The Riddle of his disease.

Nuland⁷ is describing, with only a bit of grandiosity, one of the essential elements of the curative model cogently presented several years later by Ellen Fox.⁸ For ease of analysis, her delineation of the essential features of the curative and palliative models of patient care is illustrated in Table 12.1.

TABLE 12.1 Models of Patient Care

Curative Model	Palliative Model
Analytic and rational Clinical puzzle solving Mind-body dualism Disvalues subjectivity Biomedical model Discounts idiosyncrasy Death = failure	Humanistic and personal Patient as person Mind-body unity Privileges subjectivity Biocultural model Respects idiosyncrasy Unnecessary suffering = failure

As illustrated in the table, point by point, the core elements of the reigning curative model are the diametric opposite of those in the palliative model, the latter being the one that presumably must be followed in order to respond appropriately to the pain and suffering associated with both acute and chronic illness. The clinical puzzle-solving element is precisely what Nuland⁷ waxes so euphorically about in his discussion of the zealous pursuit of “The Riddle,” which he maintains is the primary motivator and the ultimate goal of the best clinicians.

As previously indicated, ethical issues in end-of-life care will be the special focus of Chapter 13 of this book. Nevertheless, it is worth noting the stark contrast in the perspective on death and dying between the two models. The view of many clinicians in the full grip of the curative model that a patient’s death is the ultimate medical failure has led, as Nuland⁷ himself admits, to situations in which medical specialists have “convinced patients to undergo diagnostic or therapeutic measures at a point in illness so far beyond reason that ‘The Riddle’ might better have remained unsolved.” The type of clinical situations to which Nuland⁷ refers, particularly when patients are intentionally deceived or kept in the dark about the grimness of their prognosis or the dismal prospect that additional disease-directed interventions will produce any benefit, constitute a form of what might reasonably be characterized not only as “medical futility” but also as “therapeutic belligerence.”⁹

The Phenomenon of Undertreated Pain

The zealous, single-minded pursuit of a diagnosis and the relentless delivery of disease-directed interventions means, as a practical matter, that precious little professional time, energy, or attention is available for assessing and managing pain or suffering, even for those patients in the intensive care unit (ICU) who may be unlikely to leave the hospital alive. That is the bleak conclusion reached by the investigators in the formidable Study to Understand Prognoses, Preferences for Outcomes, and Risks of Treatments (SUPPORT) project in the mid-1990s.¹⁰ The SUPPORT principal investigators sought to evaluate the quality of care in the ICUs of certain premier academic medical centers across the country. The ICU, of course, is the locus of patient care in which the curative (disease-directed) paradigm of high-technology patient care reigns supreme. The findings of the SUPPORT investigators are quite concerning with regard to such considerations as the relief of pain and suffering, the extent to which a patient’s plan of care had been discussed with the patient or her proxy, or the likelihood that code status was consistent with what was known about the patient’s wishes or values. For purposes of this discussion, at least three fundamental principles of bioethics were frequently violated in ICU care: respect for patient autonomy, beneficence, and nonmaleficence. More particularly, SUPPORT revealed that there was at best a 50-50 chance that the care provided to patients was consistent with their wishes, values, or written directives, and half of
the patients studied were believed to be experiencing significant pain or distress in the last days of their lives.

Similar disappointing findings about pain and symptom management have been reported in the care of pediatric ICU patients,¹¹ nursing home patients,¹² and in outpatient care of cancer patients.¹³ The pervasiveness of deficiencies in pain and symptom management encompasses virtually all patients regardless of age, type of disease, or locus of care and thus strongly suggests a problem that emanates from certain core issues in medicine and society to which we now must turn. Otherwise, we would be compelled to consider a highly implausible proposition; that is, that health care professionals are truly indifferent to the pain and suffering of their patients.

IDENTIFYING THE BARRIERS TO PAIN RELIEF

Beginning in the 1990s, an unprecedented amount of attention has been paid to the root causes of undertreated pain. A consistently cited set of barriers has been identified. At a basic level, these barriers exist with regard to all types of pain: acute, chronic noncancer, and pain associated with terminal illness. However, certain barriers are exacerbated in patients with chronic pain. The general categories into which these barriers are divided are professional, patient, and societal in nature and origin.

Professional Barriers

In one sense, as I will endeavor to make clear, the professional barriers to pain relief are the most ethically significant, given the fiduciary nature of the clinician-patient relationship. The key elements utilized in assessing professional competence are knowledge, skills, and attitudes. Deficiencies in any one of these elements can result in inadequate and hence substandard patient care. Deficiencies in more than one for any type of patient care will markedly increase the likelihood that substandard care will result. Marked deficiencies in each of these dimensions have been documented in physicians (of all specialties), nurses, and pharmacists.¹⁴^,¹⁵^,¹⁶ What is most important from an ethical perspective is how deficiencies in one or more of these categories translate into behavior, that is, professional conduct. Given the pervasiveness of pain across the clinical spectrum, and the by now well-recognized sequelae of pain, only rarely may any clinician legitimately claim that such deficiencies pose no threat of harm to patients. As we shall further consider shortly, however, even clinicians who possess the requisite knowledge, skills, and attitudes may be reluctant to translate them consistently into effective pain management, particularly when what is clinically indicated may be opioid analgesia because of fears of regulatory scrutiny or other forms of potential legal liability. More recently, with the exponential increase in prescription drug abuse, addiction, and associated overdose deaths, deficiencies or other problems associated with a prescribing physician’s knowledge, skills, or attitudes may also imperil the lives or well-being of patients by inappropriately prescribing or failing to properly monitor a patient’s use of these medications.

None other than John Bonica himself pointed out many years ago that no medical school has been so bold and innovative as to establish and maintain a formal, required curriculum in assessing and treating the most common problem of patients who seek medical care—pain.¹⁷ This glaring deficiency that he described nearly 20 years ago persists. In data ascribed to the Association of American Medical Colleges in 2003, only 3% of medical schools have a separate required course in pain management, and only 4% require students to take a course in end-of-life care.¹⁸

The absence of any solid evidence of a formal curriculum in the assessment and management of pain in most medical schools warrants the conclusion that none actually exists. Some defenders of the status quo have argued that the requisite knowledge, skills, and attitudes are imparted in other less formal but perfectly acceptable ways, such as in the care of actual patients in the clinical years of medical education. What undermines these assertions is the strong evidence that health care professionals continue to graduate and obtain licensure with major deficits in knowledge, skills, and attitudes concerning pain management and its relevance to quality in patient care.

The ethical significance of this phenomenon is the aforementioned “culpability of cultivated ignorance.” The absence of a pain curriculum in medical and other educational programs in the health professions may be an important reason why pain is often undertreated but is not an excuse for it. Medical schools have been, and continue to be, major culprits in the epidemic of pain. Evidence of the persistence of this epidemic continues to accumulate. The 2011 Institute of Medicine report Relieving Pain in America conservatively estimated that one-third of the adult population of the United States experience chronic pain.¹⁹ It is not merely an absence of required course work on upto-date pain assessment and management techniques but also myths and misconceptions about the risks and purportedly unmanageable side effects of opioids that are deeply entrenched in the minds of clinical faculty and which are passed on from one generation of physicians to the next.²⁰ However, it is axiomatic that good ethics begins with good facts. In the past decade, further research and examination has suggested that with regard to the long-term use of opioids for the management of chronic pain, the purported benefits may have been exaggerated, whereas the real risks of abuse and addiction underestimated.²¹

Recognizing the curricular deficiencies in pain assessment and management that have plagued physician training for decades, when the American Medical Association developed the Education for Physicians on End-of-Life Care Project (EPEC), it adopted a train-the-trainer approach in the hope of maximizing the dissemination of current thinking on palliative care to experienced practitioners rather than medical students or residents.²² Entering a profession entails a moral responsibility to ensure that one possesses and consistently applies the knowledge and skills essential to minimal competence. That one may in some instances enter the profession with certain deficiencies does not provide a legitimate basis for cultivating ignorance that may be originally attributable to curricular deficiencies. The medical school curriculum should reflect the current standard of care and anticipate future improvements to it, but it does not set that standard in any definitive sense.

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