Imagine that you are working in an ambulatory surgery center. You have just finished your last case of the day, a knee scope on a teenage soccer player, and he is now in the postanesthesia care unit (PACU) complaining to the nurse of 10/10 pain in his knee. The nurse states that he has been given the maximum PACU doses of pain medications, 15 mg of morphine and 250 mcg of fentanyl, on top of the 5 mg morphine, some fentanyl, and ketorolac that you gave in the operating room (OR). It is 6:00 P.M. You are supposed to be picking up your own kids from their soccer matches, and the surgeon has gone home. You examine your patient and find him to have otherwise stable vitals, and an exam of his surgical site is benign. He is alternating between dozing and whining tearfully about the pain. And now that you think about it, he was a bit whiny preop as well. How will you manage this patient? Send him home, assuring his mom that he’ll feel better in front of the TV? Perform a block (if he’ll let you)? Call the surgeon back (so that she can yell at you)? Admit your patient to the hospital across town?

It is obvious that physicians in general, and anesthesia providers in particular, have an ethical obligation to treat their patients’ pain. Perhaps less obvious are the legal implications of the safety and adequacy of that treatment. A review of the legal literature and cases makes it clear that physicians will be held to a high standard of care with respect to pain management. Three cases are worth noting.

In State of Kansas v. Naramore (1998), an elderly woman with terminal cancer was suffering from intractable pain. Her physician admitted her to the hospital and gave escalating doses of opioids as her pain and tolerance increased. At some point, the doses required to relieve her pain began to compromise her respiration, and the doctor spoke with her family about the dilemma. Her son said, “Let me make one thing perfectly clear: I’d rather have my mother lay there and suffer for 10 more days than you do anything to speed up her death.” She died in the hospital 3 days later. As if to prove that “no good deed goes unpunished,” the doctor was later charged with
and convicted of attempted murder. His conviction was later reversed on appeal. In the meantime, he spent 2 years in prison and lost his practice, his reputation, and his marriage.

While the Naramore case presents an extreme example of the legal risks of pain treatment, the bulk of recent cases, legislation, and regulation focuses on the legal implications of inadequate pain treatment. In Bergman v. Chin (2001), a California court considered the case of the pain management for a terminally ill cancer patient. William Bergman, suffering from back pain secondary to his lung cancer, was admitted to the hospital for pain management. He remained in the hospital for 6 days, with pain scores ranging from 7 to 10/10 throughout his stay. He was discharged with a pain score of 10/10 after he asked to be allowed to go home to die; and in fact, he died soon thereafter. His children, upset that his pain was not treated adequately, first complained to the California Medical Board about the treating physician. When that board refused to discipline the physician, the family sued. A jury awarded $1.5 million, concluding that the doctor had committed “elder abuse” in failing to treat Mr. Bergman’s cancer pain adequately.