Publications
APS Bulletin • Volume 15, Number 1, Winter 2005
Pain and the Law
Ben A Rich, JD PhD, Department Editor
Overcoming Legal Barriers to Competent and Compassionate Pain Relief for the Dying Patient
Ben A. Rich, JD PhD
The physician’s moral and professional obligation to relieve pain and suffering is most compelling in the care of dying patients. Nevertheless, comprehensive reports during the past 5–7 years provide compelling evidence that too often this obligation is not being fulfilled (Field & Cassel, 1997; Kaplan & Peres, 2002). The barriers to competent and compassionate care at the end of life are much the same as the barriers to the provision of other types of pain relief: lack of knowledge and skill in the assessment and management of pain; the persistence of myths and misinformation concerning the side effects, risks, and benefits of opioid analgesics; a failure to make pain relief a professional and institutional priority; and last, but certainly not least, fear of regulatory scrutiny of and legal liability for prescribing high doses of opioid analgesics (Rich, 2000).
Potential Causes of Action Related to End-of-Life Care
The potential liability that concerns physicians can take various forms. One type of liability is an administrative sanction by a state medical licensing board for unprofessional practice related to the prescribing of opioid analgesics. Medical boards have generally insisted that physicians have a grossly exaggerated perception of the number and severity of administrative sanctions that have been imposed for so-called “overprescribing.” Nevertheless, the vast majority of administrative sanctions related to the prescribing of opioid analgesics have been for allegedly providing excessive rather than insufficient analgesia to patients (Martino, 1998).
A second, and far less common form of liability is a civil judgment for malpractice. Although there have been only a few such judgments in which physicians have been held liable for substandard care of a dying patient, the damages awarded by juries in these cases have been substantial, despite expert testimony that the defendant physician had complied with community practice standards. The implication of such substantial awards, in the face of testimony that the patient had received what amounted to usual and customary care, is that the lay public has increasingly high expectations of effective pain and symptom management. Palliative measures that have generally been considered to be adequate by a majority of practitioners may nevertheless be deemed deficient by jurors when they have been provided with expert medical testimony that had the physician followed current clinical practice guidelines the patient could have been spared a painful death (Rich, 2002).
The third, and potentially most devastating type of liability, is criminal liability. Physicians rarely face criminal prosecution for acts or omissions that are deemed to fall outside of the minimal standard of acceptable care (Annas, 1995), as is the case with civil judgments for malpractice. This is primarily because of a longstanding deference by prosecutors and judges to the proposition that evaluating and critiquing medical practice is best left to the medical profession and those who are officially charged with its oversight (i.e., state medical boards). The infrequent instances in which physicians have been successfully prosecuted under the criminal law have, for the most part, involved gross departures from acceptable care amounting to criminal recklessness (Haugen, 1997). When such convictions occur, however, they become legendary and can have a profoundly chilling effect upon clinical practice. When the case relates to an already compromised aspect of medical practice, such as care of the dying, the effect has political and public policy implications as well (Meisel, Snyder, & Quill, 2000). Let us consider one such case involving pain relief for dying patients and search for lessons that might be learned.
Case Study of a Criminal Liability Conviction
In 1992, after the retirement of their only local physician, the community hospital of the rural town of St. Francis, Kansas recruited Dr. Stan Naramore (Alpers, 1998). Naramore quickly became the subject of rumor, innuendo, and hostility because he did not fit the community’s perception of a model physician. He used tobacco and alcohol, drove his red Lincoln at a high rate of speed, and was reputed to enjoy gambling. To add insult to injury, he made a practice of publicly criticizing local civic and political leaders. Not very long after establishing a flourishing practice, Naramore’s care of two patients became the focus of public scrutiny.
One patient was Chris Willt, an 81-year old man with multiple co-morbidities (diabetes, high blood pressure, kidney and liver disease). He had suffered a severe stroke and was brought to the emergency room of the hospital in St. Francis. Willt had to be intubated, but because St. Francis lacked a ventilator, Naramore and medical technicians ventilated Willt manually for several hours. Naramore advised Willt’s brother Rudy that, in his opinion, Chris had sustained severe brain damage and that further life-sustaining measures would be futile. After conferring with a niece and a minister, Rudy told Naramore that Chris would not want to live in such a condition. The hospital administrator then advised Naramore that it would be necessary for a second physician to certify brain death before discontinuing life support. The county coroner, an MD, was summoned and noted that Willt’s pupils were fixed and that there was no pulse in the carotid artery. Naramore then discontinued resuscitation and declared Willt brain dead (Alpers, 1998).
The second patient, and the one whose care will be our primary focus, was Ruth Leach, a 78-year-old woman from a prominent St. Francis family who suffered from advanced breast cancer that had metastasized to her bones, lungs, and brain (Alpers, 1998). While hospitalized for several months, her condition continued to deteriorate significantly. During one of his visits to his mother in the hospital, her son Jim expressed concern about the extent of his mother’s pain and suffering. The nurse on duty summoned Naramore, who examined the patient and agreed that more pain medication would be necessary to make her comfortable. He warned Jim that higher doses carried the risk of respiratory depression. Naramore then administered 4 mg of Versed and 100 micromilligrams of fentanyl. According to the nurse’s notes, shortly afterwards the patient’s respiration slowed and became irregular. Jim became quite distressed at this turn of events and told Naramore not to give his mother any more pain medication. Jim was quoted as having stated emphatically: “Let me make one thing perfectly clear: I’d rather my mother lie there and suffer for ten more days than you do anything to speed up her death.” Naramore responded, “It just gets terrible from here on out—the next few days for her are just going to be absolutely terrible”(State v. Naramore, 1998). Despite Naramore’s warning that the patient would suffer terribly without additional pain medication, her son was intransigent. He indicated that if Naramore provided additional analgesia and his mother died, he would hold the physician responsible. Naramore then left the hospital. The next day Jim transferred his mother to a hospital in another community, where she died three days later. Following her death, Jim complained to the county prosecutor that Naramore had tried to persuade him to consent to the mercy killing of his mother.
The Prosecution of Dr. Naramore
Naramore left St. Francis after his medical staff privileges were revoked, working for a while in Lovell, WY. In July 1994 he was arrested and charged by the Kansas Attorney General with the second-degree murder of Willt and the attempted first-degree murder of Leach. Unable to pay the bond of $500,000, Naramore spent 18 months in jail awaiting trial. During the trial, which lasted several weeks, three physicians testified for the state, including the one who performed a forensic autopsy of the exhumed body of Willt. The defense called five physicians to offer expert testimony in support of Dr. Naramore’s care and treatment of Willt and Leach. Despite this, Naramore was convicted of the second-degree murder of Willt and of the attempted first-degree murder of Leach. He served one year of a three-year sentence before being paroled early in 1997 (Alpers, 1998). In 1998 the Kansas Court of Appeals reversed Naramore’s convictions (State v. Naramore, 1998), and he was ultimately vindicated. Because of its important implications, we will consider in some detail the court of appeals’ decision on such criminal prosecutions of physicians.
The opinion of the court of appeals quotes extensively from two amicus curiae (friend of the court) briefs that were submitted by the Kansas Medical Society and the American Osteopathic Association in support of Naramore’s care of Willt and Leach. (Naramore is an OD.) Both briefs discuss extensively the emerging field of palliative medicine and the emphasis it places on the physician’s duty to relieve pain and suffering. The court of appeals also attached great significance to the testimony of five expert witnesses on behalf of Naramore at the trial. Each of these witnesses offered an opinion that Naramore’s care of these two patients not only failed to demonstrate any criminal intent, but it was in fact medically appropriate. The state’s experts, on the other hand, testified that the dose of Versed combined with the dose of fentanyl given to Leach was excessive, could have stopped her breathing, and that the administration of any additional morphine, as Naramore was prepared to do, would have resulted in her death.
In addition to citing the extremely strong expert testimony in support of Naramore’s actions, the appellate court also noted that in order for the jury to find guilt beyond a reasonable doubt, “the facts and circumstances in evidence must be inconsistent with any reasonable theory of the defendant’s innocence.” Consequently, as in this case, when “there is such strong evidence supporting a reasonable, noncriminal explanation for the doctor’s actions, it cannot be said that there is no reasonable doubt of criminal guilt” (State v. Naramore, 1998). While one justice on the court of appeals wrote a dissenting opinion, he did so not to argue that the convictions should be affirmed, but rather that they should be reversed and remanded to the trial court for a new trial. That justice would have required the trial judge to instruct the jury at the close of the case (upon retrial) with regard to the proper medical standard of palliative care and the termination of resuscitation.
There was little, if any, background testimony offered on behalf of Naramore about what might be characterized as “the physician’s responsibility toward hopelessly ill patients” (Wanzer et al., 1989). This was surprising because guidelines on cancer pain had just been promulgated at the time of the trial by the Agency for Health Care Policy and Research. These guidelines contained the following language, which might well have been persuasive to the jury, particularly if it had influenced the crafting of a jury instruction:
The administration of medication is always a risk-versus-benefit calculation. When the patient’s death is imminent because of the progression of primary disease, an increased risk of earlier death counts little against the benefit of pain relief and painless death. The ethical duty to benefit the patient through relieving pain is by itself adequate to support increasing doses to relieve pain, even if there might be life-shortening and expected side effects (Agency for Health Care Policy and Research, 1994).
The language of these guidelines might also have helped to persuade Jim Leach that prolonging his mother’s dying by denying her necessary palliative measures would not be an act of loving kindness.
Lessons of the Naramore Case
The implications of the reversal of Naramore’s conviction are significant, and not just for Kansas physicians. The burden of proof in a criminal prosecution for homicide is relatively uniform throughout the United States. The thrust of the Kansas Court of Appeals’ decision is that no jury may find beyond a reasonable doubt that a physician had the requisite intent to harm his patient (technically referred to as mens rea, “guilty mind”) if competent and credible expert testimony is offered that his or her actions were consistent with good medical practice. In cases such as that of Ruth Leach, the words of Supreme Court Justice Sandra Day O’Connor, written in the context of the court’s review of physician-assisted suicide cases, are particularly compelling and should give pause to any overzealous prosecutor: “ a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication from qualified physicians to alleviate that suffering, even to the point of causing unconsciousness and hastening death” (Washington v. Glucksberg, 1997). Similar statements by four other justices have been interpreted by some legal commentators as establishing a constitutional right of dying patients to receive appropriately aggressive pain and symptom management (Burt, 1997).
Naramore’s ultimate vindication by the Kansas Court of Appeals will strike many practicing physicians as offering extremely cold comfort, however. Recent surveys of prosecutors on the subject of pain management and end-of-life decision-making tend to reinforce this negative viewpoint.
One such survey found a strong correlation between the inclination of prosecutors to initiate criminal proceedings against a physician in one or more hypothetical scenarios and the personal beliefs of the prosecutor about how they would wish to be treated if they were in the same condition as the patient in the scenario (Meisel et al., 1999). The scenario in question concerned a physician who provided additional morphine to a dying cancer patient experiencing unrelieved pain with her consent and the approval of her family after advising them that it could depress her respiration and possibly hasten her death. The results of the survey showed that 10%–20% of the responding prosecutors said they would prosecute, and 20% were uncertain whether they would prosecute.
In another recent survey, prosecutors were asked to give their opinions about a hypothetical scenario in which a hospice physician gradually increased doses of morphine for a 25-year-old patient dying of AIDS. The patient was unconscious, experiencing labored breathing, and finally stopped breathing entirely from a 10-mg administration of morphine after the previous 5-mg dose had failed to produce any demonstrable effect (Ziegler & Lovrich, 2003). The survey results revealed that 50% of prosecutors did not know whether a criminal act had been committed, while another 20% believed one had.
Conclusions
Providing state-of-the-art palliative measures to patients experiencing severe pain and distress from the symptoms of a terminal illness may still, too often, require acts of moral courage on the part of physicians (Cantor & Thomas, 1996). Nor can physicians, attempting to practice defensive medicine by prescribing sub-optimal doses of opioid analgesics, insulate themselves from civil or administrative liability, as a few notable cases have indicated (Rich, 2000). Organized medical groups at the local, state, and national levels must establish and maintain an effective dialogue with prosecutors and regulators on the emerging standards of care for dying patients so that physicians can and do consistently provide competent and compassionate care without fear or uncertainty.
Dr. Rich is associate professor of bioethics at the University of California, Davis School of Medicine.References
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Please direct your comments or suggestions about this article or department to Ben A. Rich, JD PhD, Department Editor, at barich@ucdavis.edu.