(This the first of three (3) Posts about being a Patient in the medical specialty of Pain Management.
Post 1 – Educate Patients about the issues involved with selecting the Pain Management physician right for them;
Post 2 – I will provide comments to the clauses contained in the below Sample Compilation Pain Medicine Agreement for the purposes of “educating” patients about the agreements they are signing and how best to ensure their compliance with them. I encourage patients to discuss the resulting issues with the potential new Pain Management doctor and incorporate his or her answers and explanations into the information they consider in making their selection of the right Pain Management doctor for them.
Post 3 – I will share some helpful Patient Tips from my extensive experience dealing with Pain Management doctors regarding how to always be prepared to find a new Pain Management doctor should your Pain Medicine Agreement be terminated, you choose to do so, your doctor retires, you relocate to another state or your health insurance changes such that you can no longer afford to be treated by your current Pain Management physician. I will also share some patient tips on how to maintain a credible file about the patient’s need to be treated by a Pain Management physician and the various ways in which to facilitate Pain Management care in a hospital setting after a painful surgery, during a long painful hospitalization or even prior to a surgery which is known to be very painful.)
Extraordinary Pain Management Physicians
Please note that the above “Agreement” (actually Page 1 of same) is a compilation of the different contract clauses of significance to Patients, which I have either seen in the different Pain Medicine Agreements I was asked to sign in order to be treated by a Pain Management physician or from the numerous Pain Medicine Agreements I found during a Google Search in preparation for writing this Blog Post. Additionally, I feel the need to convey the difficulty I had in writing this Post (which is why it has taken so long to complete) because I am so appreciative of the dedicated, compassionate and professional doctors who practice Pain Management and I do not want to confuse my criticism of Pain Medicine Agreements with the way Pain Management is practiced or by those doctors who practice it. Finally, due to the passage of even more stringent laws pertaining to the prescribing of narcotic drugs, pristine record-keeping requirements and the specific operation of a Pain Management Practice, it is fair to say these doctors often risk their professional medical licenses to help patients like me, for whom “Pain” is a medical problem separate and apart from any underlying disease or reason which causes it.
The personalized medical treatment required to address, manage and control my pain is extraordinary in this day and age of established healthcare protocols which are followed by too many doctors who simply don’t even listen to patients or won’t let themselves “hear” patient concerns because they are too “programmed” to facilitate the reimbursable “transaction” to get to the next patient. These ordinary doctors are risk-averse due to our litigious society and tend to stick to disease and condition treatment protocols which are widely accepted as “reasonable” medical treatments in the context of medical malpractice lawsuits. But the Pain Management doctors who’ve treated me are “problem-solvers” and when I come to them with a problem, it then becomes their problem.
More specifically, by listening and hearing my particular pain concerns and trying to devise a pain treatment plan to best combat MY specific problems, these compassionate Pain Management doctors have enabled me to enjoy a decent “quality of life” making memories with the people I care most about despite being deemed systemically disabled from thirty (30) years of Severe Crohn’s Disease which has included twenty five plus (25+) surgeries, two hundred (200) hospitalizations, seemingly never-ending dental work, unusual complications or side effects from surgeries or medications and grossly disproportionate painful inflammatory reactions to the simplest of maladies. While my medical history tends to explain my body’s inflammatory reaction, inaction or over-reaction to the aforementioned often painful medical problems, most other doctors nevertheless are skeptical of my pain or they refuse to believe all of these medical realities can happen to one person. The egocentric nature of most other doctors only reinforces their conclusions and they put me on the “defensive” immediately after they read my medical history, which is extremely detailed to account for such cynicism. But regardless of whatever proof I provide, these other doctors are always unwilling to help ME or to even try and solve MY problem. This was, and is, not the case with the few extraordinary Pain Management physicians I’ve been fortunate to find. To that end, I am forever grateful to these consummate professionals. Thank you Drs. K, H, G and D.
The Purpose of Pain Medication Agreements – in theory
The purpose of a Pain Medication Agreement (a/k/a Medication Use Agreement, Chronic Pain Medicine Agreement, Narcotic/Opioid & Controlled Substance Agreement, Medication Contract, Pain Treatment Agreement and other similar configurations of the same key words/phrases), in theory, is to define the specific structure of the Doctor-Patient relationship when the patent seeks treatment within the medical specialty of Pain Management. This is necessary because the Practice of Pain Management has a fundamental “loophole” like no other medical specialty; that is, there is no objective Pain Scale to rely upon in assessing the presence, absence or severity of a patient’s pain. In that regard, on a Pain Scale of 1-10, my “8” and your “8” could represent very different levels of pain severity thus conceivably requiring very different pain medications or at least different doses of the same pain medication. It is therefore difficult for Pain Management doctors to account for patients who “rate” their pain incorrectly or inadequately, purposely or otherwise, or for doctors to weed out patients who lie about their pain to feed an addiction or to serve some other nefarious purpose because the doctor’s ability to gauge the presence, absence or severity of pain is essentially limited to only his or her observational skills of a physical examination and the patient’s word.
The consequences to both doctor and patient of this pain severity determination could not be higher because the treatment for pain usually involves the doctor prescribing potentially addictive and strongly regulated narcotic pain medications. Ergo, the Pain Medicine Agreement is necessary to both protect patients from themselves due to the addictive qualities of the prescribed opioids and to protect Pain Management physicians from jeopardizing their mandatory compliance with the increasing number of comprehensive law enforcement and medical ethics rules and regulations when they unknowingly treat unscrupulous, reckless, criminal, irresponsible or addicted patients. These laws, rules and regulations mandate the controls for the prescribing and record-keeping of these powerful mind-altering and potentially addictive drugs.
Since the public has a strong interest in preventing the well-publicized and seemingly annual increase in prescription painkiller overdoses and in the prescription drug addiction problems of people of all ages from all walks of life, Pain Medication Agreements are usually drafted without any patient input since it is the physician who would face the legal and ethical consequences of these tragic events or devious people. But some agreements are so 1-sided and over-populated with ostensibly subjective physician termination triggers, the patient needs to have a better understanding of these types of agreements either before selecting a Pain Management physician or after the agreement is signed so he or she can ensure their ongoing compliance with the Pain Medication Agreement. I hope to do that with this three (3)-part Pain Management Series of Posts on my Blog.
Why am I qualified to opine on Pain Medicine Agreements?
As a 30-year Severe Crohn’s Disease patient who has undergone twenty-five plus (25+) surgeries and two hundred plus (200+) hospitalizations related to this gastrointestinal, autoimmune and incurable disease, I’ve had a Pain Management physician for many years once gastroenterologists no longer felt it medically appropriate to address my “pain” and viewed my “pain problem” as a medical issue separate and apart from my Crohn’s Disease which warranted referring me to doctors who specialized in treating Pain. I have also experienced the unique challenges of changing Pain Management physicians when my health insurance changed and my Pain Management physician was no longer a “member” of the groups of doctors my new health insurance company covered at a reasonable reimbursement rate and I could not afford to pay the large remaining co-payment. This process of change is much more complicated than changing doctors in any other specialty due to the lack of trust propagated by the loophole caused by the lack of an objective Pain Scale.
I have also had to “start over” as an adult when I relocated from New Jersey to Santa Monica, California and that entailed initiating relationships with a variety of new doctors because my Crohn’s Disease affected several different parts of my body from my eyes to my mouth and from my GI tract all the way to my rectum, and all places and body parts in-between. Therefore, I was tasked with finding the “right” Pain Management physician “for me” while I was coping with the stress of relocation and beginning a new job. This process is similarly more complicated than it appears, as it is in merely changing Pain Management doctors, and it requires proper planning and at least one (1) “consultation” with the prospective new Pain Management doctor to ensure there is a good fit between the patient and the physician. I also made a similar change when my Pain Management physician retired. Additionally, having had surgeries or been hospitalized for lengthy periods of time at several different hospitals for different medical problems related to my Crohn’s Disease, I’ve had to interact with new Pain Management Practices and physicians in each hospital and sometimes post-operative pain treatment plans were designed for me by my Pain Management physician at the time in close consultation with the Pain Management doctors at the hospital. Each time, however, something substantial went wrong at the hospital and I had to coordinate the management of my pain from my hospital bed. But I learned more from the problems than I did from the “smooth sailing.”
I was also a “transactional” entertainment attorney for approximately twenty (20) years and in that capacity I frequently drafted contracts, analyzed contracts and negotiated contracts until a few years ago when I was deemed “systemically disabled” by virtue of the numerous direct, and indirect, disabling effects of my Severe Crohn’s Disease. (Given my extensive experience in dealing with Pain Management physicians and my significant legal experience evaluating contract clauses of many different kinds, in Part Two (2) of this Series, The Patient’s Perspective re: Pain Medicine Agreements, I will provide comments on the clauses contained in the above Sample Compilation Pain Medicine Agreement for the purposes of “educating” patients about the agreements they are signing in order to get the pain medications they need and how best to ensure compliance with them so as to not jeopardize obtaining their pain medications. I will suggest more reasonable language for each clause, if necessary, as if I were representing the Patient, but given the already-mentioned strong public interest in the way in which this medical specialty is operated, there should be no expectations my comments of suggested language will be implemented. Instead, I encourage patients to discuss these issues with the potential new Pain Management doctor and incorporate his or her answers and explanations into the information considered in making the selection of the Pain Management physician who is right for them.)
Doctor – Patient Relationship in Pain Management
A skilled and experienced Pain Management physician employs other reasonably reliable scientific and psychological tests to assess the level of a patient’s pain for the purposes of prescribing the least amount of pain medication required to adequately treat and control the patient’s pain so he or she can safely regain a “quality of life” reasonably commensurate with their lifestyle. A good working relationship or “collaboration” between a patient and a Pain Management physician is one which reasonably takes into account the patient’s individualized need for specific doses of the different pain medications based on his or her medical need and/or provable medical history successfully taking such prescription narcotic drugs (as well as his or her willingness to try reasonable alternative pain-reducing modalities such as acupuncture, epidural injections, etc., when, and if, they are suggested by the physician). The patient must assume an appropriate sense of responsibility when taking these strongly regulated opioids and he or she must consistently display complete candor with the physician. As for the physician, he or she must effort to listen (and hear) the patient so he or she can treat the patient in a safe manner which is reasonably consistent with the patient’s medical needs and lifestyle.
Perhaps more than in any other medical specialty, Pain Management is predicated on the unequivocal communication between doctor and patient. This is why it is imperative for patients to consult with a few different Pain Management doctors before selecting one to make sure his or her reasonable needs will be met at the chosen Pain Management Practice and that the doctor “understands,” or can relate to, the patient’s idea of “quality of life” given his or her medical status and lifestyle.
Codifying the Pain Management Doctor-Patient Relationship
In accordance with the foregoing, the Pain Medicine Agreement must codify the specifics and nuances of the Doctor-Patient relationship while addressing and cementing the “protections” mentioned above regarding the consequences of insincere, devious, criminal or irresponsible patients and also articulating the patient’s objective to better manage his or her pain and improve his or her quality of life. In that regard, the Pain Medicine Agreement:
- Ensures complete transparency regarding the dispensing and use of any narcotic prescription drugs so that the patient doesn’t “doctor-shop” and stockpile drugs to sell them or obtain copious amounts of narcotics from different doctors to feed their addiction, thinking no other doctor will realize what’s going on;
- Ensures the patient obtains all narcotic prescriptions from only one (1) pharmacy which the patient identifies to the physician at the beginning of treatment, thus adding another layer of protection to monitor the dispensing and use of any narcotic prescription drugs;
- Ensures the patient will not mix alcohol, illegal street drugs or mind-altering drugs with the strong narcotics being prescribed by the physician because mixing these substances could prove lethal to the patient;
- Helps the physician identify if, and when, the chronic pain patient’s “dependence” on narcotics to control pain doesn’t slip into a dangerous “addiction,” to the point where the patient takes the narcotics for reasons other than to control pain;
- Helps the physician alter, adjust and seemingly personalize the patient’s pain control medications for maximum effectiveness while also preventing the development of an addiction to these narcotic drugs rather than just a “medical dependence” on them (which is an acceptable but unintended consequence of prescribing opioid painkillers);
- Assures the physician that the patient is actually taking the prescribed narcotic drugs, in the prescribed amounts, and not unilaterally changing the physician’s carefully designed pain treatment plan for taking these narcotic drugs to most effectively control their pain; and
- Protects the compassionate and trusting physician from irresponsible and dishonest patients or prescription drug addicts whose reckless behavior with these highly regulated prescription drugs could subject the physician to serious legal consequences and ethical violations from the various State and Federal law enforcement authorities and Medical Ethics Boards.
Pain Medicine Agreements – in reality
In practice, however, virtually all of the Pain Medication Agreements which I’ve read contain contractual clauses which are blatantly 1-sided to protect the doctors and minimize their professional risk with respect to prescribing potentially addictive or lucrative painkillers (i.e., on the black market). These agreements are also devoid of ANY patient considerations or objectives. They are presented to the patient on a “take it or leave it” basis such that no drugs are prescribed until the Pain Medicine Agreement is signed by the patient. Since patients suffering from chronic and severe pain can only get the appropriate narcotic pain medications from these Pain Management physicians, these 1-sided “agreements” are really “ultimatums” which the doctors do not even try to disguise as agreements. These ultimatums serve to only highlight the unequal bargaining position between the parties, i.e., Doctor and Patient. Moreover, many of these Pain Medicine Agreements contain ostensibly subjective termination provisions which enable the physician to terminate the Pain Medicine Agreement essentially at will and conceivably because of an unfortunate heated-disagreement fueled by a simple personality conflict which could have been avoided if the patient were switched to a different doctor in the Pain Management Practice. Even worse, an unexpected termination combined with no termination provision establishing an immediate post-termination “pain medication treatment plan” during the 30-60 days following the termination could cause the patient to experience dangerous, extremely uncomfortable and humiliating Narcotic “Withdrawal.”
Abrupt Subjective Termination & Patient’s Narcotic Withdrawal
Narcotic Withdrawal has been described by patients who’ve gone through it as one of the worst ordeals a human can go through. Typically it is not life-threatening but it is very uncomfortable and the symptoms include: excessive sweating, nausea, vomiting, diarrhea, restlessness, insomnia, severe depression, aches and pains, low energy, lethargy, anxiety, panic, chills, irritability, irregular heartbeat and high blood pressure. The acute symptoms can last for up to a week and it could take a few months for the emotional symptoms to dissipate and for the insomnia to return to normal. But the timing and intensity of the Narcotic Withdrawal largely depends upon how long the patient was taking the opioid and in what dose. The abrupt termination of the Pain Medicine Agreement too often causes Narcotic Withdrawal because many of these agreements contain no provision to protect the patient in such an instance. Hence, it occurs when the patient suddenly stops taking the narcotic instead of gradually weaning off of it in accordance with a taper schedule devised by a Pain Management healthcare professional.
Punitive Effects of Termination & Patient Difficulty finding a New Pain Doctor
Besides having to endure the abrupt termination, the patient’s Narcotic Withdrawal symptoms most likely will affect his or her ability to go to work or to attend to other relatively immediate serious responsibilities. The patient would also have to find another Pain Management Practice to treat or help control his or her pain but that could be very difficult to do while physically and emotionally compromised due to the visible Narcotic Withdrawal symptoms. Additionally, the patient will likely have to explain to any prospective Pain Management Practice why he or she is changing doctors and that usually entails a follow-up phone call from the potential new doctor to the doctor who terminated the patient and there usually are no contractual guidelines as to what the former doctor can, or cannot, say about the patient and why he or she was terminated. Assuming the Pain Medicine Agreement contains no patient “termination appeal mechanism” and there is no mention of an immediate post-termination “pain medication treatment plan” so that the patient can find another Pain Management physician while still in perceivable good health, short of an obvious or abhorrent criminal act, is it really necessary to punish and humiliate a patient for breaching a 1-sided Pain Medicine Agreement such that he or she should have to suffer through Narcotic Withdrawal to the point where he or she might lose their job or possibly be admitted to a hospital?
Are 1-sided Pain Medicine Agreement clauses legally enforceable?
I clearly understand and advocate the need for Pain Medicine Agreements but Pain Medicine Agreements are created WITHOUT ANY INPUT FROM PATIENTS and they are presented to patients to sign on a “take it or leave it” basis. Usually, such a “take it, or leave it” contract, drafted by the party in control of such egregious unequal bargaining power, is treated by courts as a contract of “adhesion.” Accordingly, the Pain Medicine Agreement is a contract of adhesion because it is presented to the patient on a “take it or leave it” basis, it is drafted by the physician who is unilaterally in control of the agreement’s terms and conditions and the patient has no ability to negotiate because of his or her unequal bargaining position. However, the unfairness typically inherent in an adhesion contract is apparently offset in the case of the Pain Medicine Agreement by the public’s exceedingly strong interest in preventing prescription narcotic painkiller overdoses and the addiction to these prescribed opioids by people of all ages from all walks of life.
In that regard, the courts seem to currently view Pain Medicine Agreements as necessary to serve as guidelines for the structure and operation of a Pain Management Practice because the number of people who die annually from prescription narcotic painkiller overdoses and the number of patients who develop prescription opioid addictions seem to always be increasing yet there are also many patients suffering from chronic pain who have legitimate medical needs for these very effective medications. That said, the aforementioned newsworthy issues are usually well-publicized and sought out by politicians looking to make a “name” for themselves by proposing new laws to help increasing overdoses and addictions from occurring.
The result is that besides the victims of these awful tragedies and the people who love them, people with chronic pain who need reasonable access to these pain medications are among the losers in this situation because they must often abide by Pain Medicine Agreements which are so 1-sided there is always a possibility they can be terminated by the physician at any time and then the chronic pain patient’s quality of life is destroyed.
Unfair & Unconscionable Clauses of a Pain Medicine Agreement
To the best of my knowledge, no patient has ever challenged any of the aforementioned blatantly unconscionable clauses of certain Pain Medicine Agreements. But if that happens, and it probably will because politicians appear to be continually “pushing the envelope” in an attempt to make names for themselves by making it harder to get these prescription narcotics but, by doing so, I believe they are coming close to “throwing the baby out with the bathwater,” to the point where the needs of chronic pain patients will approach outweighing the public’s interest in this matter. After all, most of these chronic pain patients are medically dependent upon these prescription drugs due to chronic, incurable diseases which they had no responsibility in causing.
Therefore, it is conceivable courts or arbitrators will sometime soon view certain Pain Medication Agreement clauses, or the omission of specific clauses in these contracts, such as the establishment of an immediate post-termination “pain medication treatment plan” during the 30-60 days following an abrupt termination, as unfair, and thus unenforceable against the patient, who is the party who had no opportunity to contribute to the language or inclusion of that particular clause in the Pain Medicine Agreement. Courts and arbitrators have a history of carefully reviewing challenged adhesion contracts and they have consistently voided certain clauses or provisions because they could have only resulted from significant differences in the negotiating leverage of the parties such that they are grossly unfair to the party with no or little negotiating leverage relative to the drafter of the adhesion contract. Courts and arbitrators also strike out adhesion agreement clauses if they are unconscionable. Historically, reasonable, fair and necessary contractual clauses such as the post-termination “pain medication treatment plan” have been implied by courts and arbitrators as included contractual clauses of adhesion contracts for these same reasons.
All that said, however, the public, understandably, currently has a very strong interest in this matter and as a result, patients must pay careful attention to the Pain Medication Agreements they sign because it may take a long time for the status quo to change. I have pointed this out only to educate the patients who regularly or always must rely upon prescription narcotics to manage or control their pain in order to be as productive as possible in society and attain the highest quality of life. It is just too bad how several tragedies and the acts of several devious criminals posing as patients have made life even more difficult for those people already trying to cope with genetically imposed medical adversity.