Wednesday, November 7, 2007

An Alternate Pain Agreement

I recently posted an article about pain contracts here, where I argued that pain contracts are coercive, one-sided and unfair. These contracts are definitely oriented towards protecting the rights of the doctor and allow little in the way of rights or autonomy for the patient. This got me wondering what a patient-oriented pain "contract" would look like, and I came up with a few provisions which I think you'll find interesting. Most of these are eminently reasonable, some are a little tongue-in-cheek, and others could be considered blatantly unfair to doctors, but I have included them anyway as an illustration that despite their obvious unfairness, none is quite so unfair as the provisions we must agree to that may result in our being denied medical care for our pain if we fail to live up to all aspects of the "contract." I am not suggesting that anyone actually attempt to use this contract, as it will most likely result in your being denied medical care, as patients have little power in negotiations with their doctors over pain medication issues. I present this only to generate discussion and to highlight the one-sidedness of the "contracts" we are forced to sign and their inherent unfairness. I welcome any additions you feel should be added to the pain management employment agreement and I will add others as I think of them.

Pain Management Employment Agreement

I _______________________________ (enter doctor's name here), as an employee subcontracted to provide medical services to my employer ________________________________ (enter patient's name here) do hereby agree to provide opiate medications for my employer (hereafter known as "the patient") under the following terms and conditions. As a physician, I recognize that I have a moral and ethical duty to relieve suffering, and that opiate medications play a key role in the management of chronic pain. I agree to prescribe these medications in good faith, without malice or prejudice and in accordance with best medical practices and the best interests of the patient.

1. I will be honest with the patient at all times and not lie, manipulate or deceive the patient in an effort to shirk my responsibilities, or to pressure the patient into agreeing to medical procedures that may or may not be in his or her best interest. I recognize that any attempt at undue influence of the patient may lead to immediate termination of the doctor/patient relationship, and forfeiture of all fees due for my services coupled with any fines or penalties a court of law may impose.

2. I will not place arbitrary limits on the amount of pain medication prescribed based on my fear of regulatory scrutiny or personal "comfort level." I will practice the scientific principle of titration to effect, where the dose of opiate medication is slowly raised until adequate pain relief is achieved or a balance between adequate pain relief and intolerable side effects occurs.

3. I will always endeavor to prescribe medications based on a balance between current scientific knowledge and patient preference. I will, to the extent possible, respect patient autonomy and right to decide what drugs he or she will and will not take and I will not discriminate against the patient solely on the basis of his or her medication preferences.

4. I will respect the human rights and dignity of my patients, and will respect and obey all human rights agreements entered into by my country and all local, state and federal laws protecting the rights and dignity of my patients. I will adhere to The International Covenant on Civil and Political Rights, in particular the following articles:

Article 6: "1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

Article 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

Article 17: "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."
5. I will submit to routine urinalysis tests to check for the presence of illegal drugs at least once a month and randomly whenever the patient requests it. These tests shall not exceed four per month, and any urinalysis done within one week of the patient's request shall be valid to satisfy the request of another patient for drug screening, and vice versa. The presence of any illegal drug on any routine screening may result in termination of the doctor/patient relationship at the patient's discretion and forfeiture of all fees owed for services rendered.

6. I will fully disclose in writing any legal or illegal drugs I may be on and submit to blood test screening for alcohol or illegal drugs of abuse using gas chromatography immediately prior to any surgery, nerve blocks, trigger point injections or other invasive procedures. The detection of any illegal drug or prescription drug that has not been prescribed by a licensed physician shall be considered prima facie evidence of malpractice, irregardless of whether the procedure is successful or not, and may result in forfeiture of all fees due for services rendered including hospital fees as well as any other fines or penalties a court of law may impose. The detection of any drug not previously disclosed in writing, including legal prescription and non-prescription drugs, shall be considered prima facie evidence of fraud.

7. I will respect the patient's confidentiality, privacy, person, autonomy and human dignity at all times. I recognize that my patient has a zero tolerance policy for physical or verbal abuse, slander, libel or other forms of defamation, and the deliberate infliction of emotional distress, as well as any violation of privacy or patient confidentiality. I will not disclose or discuss any aspect of the patient's medical care or medical condition to any party, including office staff, without specific consent of the patient. This also includes research facilities, data-mining firms, and government agencies not specifically authorized by law to collect this data. My staff will not openly question the patient about billing or other matters in the presence of other patients.

The inclusion in the patient's chart of any derogatory terms such as "drug-seeker," frequent-flyer," "malingerer," "hypersensitive," "hysterical," etc. shall be considered prima facie evidence of libel and the tort of deliberate infliction of emotional distress, and may result in the immediate termination of the doctor/patient relationship at the patient's discretion and forfeiture of all fees due for services rendered, as well as any fines or penalties a court of law may impose. This provision will also apply to the use of "scare quotes" around words such as "pain," "condition" "disability" or any other words or phrases the patients uses to describe his medical condition or state of being. Additionally, the inclusion of any scientific or pseudo-scientific terminology to describe the patient's psychological state or motivations such as "psychogenic pain syndrome," "conversion disorder," "hysteria," "personality disorder," "compensation neurosis," et alia shall be consider prima facie evidence of libel and practicing psychiatry without a license, and may lead to immediate termination of the doctor/patient relationship, and forfeiture of all fees due for services rendered coupled with any fines or penalties a court of law may impose. If the physician feels that the patient might have a psychiatric or substance abuse disorder, he will refer the patient to a competent psychiatrist or addiction specialist of the patient's choosing.

8. In the event of a violation of this agreement leading to termination of the doctor/patient relationship, the doctor will continue to prescribe any opiate medications for a minimum of three months following the date of the termination, and will support the patient in achieving a tapered withdrawal from the drug in question or in attaining the service of a competent physician to continue the patient's care. Failure to adhere to this aspect of the agreement shall be considered prima facie evidence of patient abandonment.


Matina said...

I love it. This is the kind of humiliating things the docs ask of us. I am ashamed to admit I'm in healthcare anymore. I've been an RN for 40 yrs and I've had fibromyalgia longer then that. I have NEVER had adequate pain management. The doctors are condescending and actually stupid. I have tried to educate docs that chronic pain sufferers react differently to pain then do acute pain sufferers in the small contact I have with them. It does me no good. I was recently in an accident and I had to beg for something stronger then vicodin for pain after the accident, which sent me into a flare. I grudgily got 40 percocet, and told never any more. I think on some level they get off on watching us beg and refusing us.

Anonymous said...

Trickery. That's all it is. I am in "wanting to die" pain. I prayed for death, instead of death I was given Fentanyl. It saved and changed my life. Life was all of the sudden, pain free and beautiful again. After a year of that and a tricky little old loophole stated in my contract, I was cut off of the medicine, only wanting to die less than 48 hours later. Got a new doctor, and now 4 months later, the same thing again. A stupid trick played on me by the Doctor, now again, in 10 days, my medicine will be gone, and there is nothing more I can do. Pain docs refuse to help, and there is no one left. I hope Doctors are proud of themselves, playing "Pain God", that is, making the decision of who will in the end die from their pain and who will not. Thanks United States Medical Community!!!

Maurice Bernstein, M.D. said...

I doubt any doctor would enter into this contract as writtn. It may be illegal and challenge standards of practice set by state medical boards. However, it is a wonderful expression of the pain suffers concerns and, though not signed, should be read by every physician... it is that important to read and remember. One suggestion to clarify reading, the word "I" is used in the context of both the physician and the patient and therefore is confusing and meaningless. The contract should be rewritten with two sections, one for the use of "I" as the physician and one for the use of "I" as the patient. ..Maurice.

Payne Hertz said...

"I doubt any doctor would enter into this contract as writtn. It may be illegal and challenge standards of practice set by state medical boards."

Thanks for your comment, Dr Bernstein. Unfortunately, a lot of people are missing the point of this exercise, which was in fact to produce a pain contract that was so one-sided from the point of view of the patient, no doctor would ever sign it. While all of the provisions of my mock contract reflect valid patient concerns, they are not all reasonable or fair to the rights of doctors. This is deliberate, and is designed to provoke thought among people with an open mind about the kinds of things we as pain patients are compelled to agree to when we are forced to sign these contracts or be denied medical care. As an example, what is more reasonable, that a doctor who uses unscientific, libelous terms against a patient such as "drug-seeker" should be found automatically guilty of libel, or that a patient who misses two appointments because he is in too much pain to make them shall be cut off from his pain medication and labelled a "drug-seeker" (both of the latter being actual requirements of many pain contracts, which not only specify that the patient will be cut off his meds for missing two appointments, but require that the patient agrees that the doctor will be allowed to report any violation of the contract to all physicians, pharmacies and ERs in the area, essentially allowing the doctor to medically blacklist the patient)?

I do not in fact believe there is such a thing as "prima facie evidence of malpractice," or libel, or anything else. Such a thing is obviously a violation of the doctor's right to due process. But many of the pain contracts we sign do in fact contain provisions the violation of which are regarded as prima facie evidence of drug-seeking or drug abuse, and will result in the denial of medical care to a patient: essentially a non-judicial sentence of torture executed by a doctor with the "consent" of a the patient who was forced to agree to these terms as a condition of avoiding that very sentence of torture. The unfairness and authoritarian nature of such contracts should be obvious to any civilized person, but unfortunately, our society has become so ingrained in its hostility towards anyone who uses narcotics, whether legitimately or not, that this is seldom the case.

"However, it is a wonderful expression of the pain suffers concerns and, though not signed, should be read by every physician... it is that important to read and remember. One suggestion to clarify reading, the word "I" is used in the context of both the physician and the patient and therefore is confusing and meaningless. The contract should be rewritten with two sections, one for the use of "I" as the physician and one for the use of "I" as the patient."

I'm glad you noticed that. The use of the personal pronoun "I" is deliberate, and reflects the style of many pain contracts, which are written as though they are the words of the patient himself, rather than a list of demands from his doctor. In my contract, there is no section on patient responsibilities, just as in most real-life contracts, there is no section on the responsibilities of the physician. I have written about what I feel is wrong with the whole concept of making patients sign these so-called "contracts" in my article Pain Contracts: "Cooperation," or Coercion?, and if you download the samlpe pain contract I've linked to in the first paragraph, you will see that literally every sentence begins with the word "I".

If you wish to read a more reasoned attempt at a patient-oriented pain agreement, I would suggest this one at the Power Over Pain forum. You can compare and contrast the agreement this patient was forced to sign at the VA with the one he designed himself, and ask yourself which is the more reasonable and balanced in terms of the rights and responsibilities of both parties.

Anonymous said...

I think it's GREAT. Recently, my husband and I were simply DUMPED by our long term family doc. The reason? My husband had gotten a diagnosis of terminal cancer, and needed pain meds for that- while I had been needing them all along for multiple fractures resulting from years on prednisone due to lupus and myositis. He had been OK about prescribing Pain pills UNTIL he got a smart-mouthed SECRETARY who began to humiliate and yell at me as soon as she found out about my narcotics! When we told him about her treatment of us, the doc. said that she just "tended to feel that way about people on the kind of meds we on." He did not defend us at all from her!!
Once he dumped us on another doc(only because we had a consult), the new doc began saying he did not feel "comfortable" giving us the same meds we had been on for years, and HE dumped me on pain clinic after pain clinic. It has been a nightmare! The only one that helped has been forced to close, while I am forced to go to one that says the meds that have treated my pain for years are "too high,"so they will offer to do invasive spinal proceedures. Please no!

Is it not enough that I am dealing with the diagnosis and pain of my husband? With trying to raise my 13-year-old? If they take away my meds, I will only be able to take care of my family by a miracle of God.

mdaine01 said...

One-sided is generous at best. We can lose our license if the patient screws up...what does the patient have to lose? Moronic exercise at best.

Payne Hertz said...

"One-sided is generous at best. We can lose our license if the patient screws up...what does the patient have to lose?"

His life.

mlang52 said...

I was entertained by your letter. I see it very short sided of the physicians who responded to be so critical of an, obviously, sarcastic approach to the pain contract. Even though, I got these contracts and followed the rules, I still lost my ability to treat pain patients in 2005. Unable to work since the, my chronic pain has worsened. Yet, I am destitute and can't get any medical care. My wife got busted for altering scripts to treat her chronic pain. I can see why chronic pain patients might get the feeling that life is no longer worth living! I, also, understand why the contracts are used. It's not easy, to not be able to make a living! Your answers seem to be that of a very learned person. I hope you have a pain free day.

Doctor R said...

Both brilliant as well as (somehow) hilarious creation relating to this "tragedy of travesty" we know to call themselves "intelligent life-forms"!

I have oft in my mind imagined crafting such a contract (for real) to be wielded as a reassuring vehicle by which I might be allowed to function as a competent adult under the governance of the private Theraputic State.

Myself no stranger to civil legal process, and the bureaucratic mind-set, I have refrained from the effort, knowing well the deadpan and bug-eyed responses that would surely come forth on the part of the "Magis of Medicine".

In the legal realm, the necessity for such written promissory agreements in the first place is an "adversarial" move on the part on either party to make. It is an antithesis to mutual trust; respect borne only in fear ...

To expect anything other than a
ream-job from such one-sided corporate/bureaucratic instruments would be a shame - and one that comes to be every hour of any day in Theraputic State.

My contract would likely be more fair (than their's) to *both* of us - but that would make sense, and would never fly in the netherworld of corporate barristers, brokers, and actuarials who would rather make up the terms of the "agreements" as they go.

Credit card companies have been allowed to transcend the laws surrounding "usury" - and change the rules whenever and however they like.

Insurance companies, ditto ("by hook or crook").

Corporate Medical Institution Administration has clearly "jumped in the pool" (the water being great).

I knew that I do not own my own abode or my own chariot, but now the King tells me that they own my body, and are coming after my mind, as well.

"There but by the grace of" (the molecular gods") "go I" ... :)

Anonymous said...

As a health care professional who spent some time in chronic pain management, I am saddened to read your blog. Not because of the story, but because this is the exact type of misunderstanding and half-education that leads to problems. You have educated yourself just enough to create a fuss, but do not truly understand the disease processes, reasons for treatment, or legal issues. Emergency physicians are not pain specialists, so why expect them to do anything more than manage your acute pain and send you away?

Any pain specialist these days realizes fibromyalgia actually exists. They have read articles like "Functional magnetic resonance imaging findings in fibromyalgia". These pain specialists realize pain is generally undertreated, which also stems for the understanding that pain is fully subjective. However, there are serious side-effects of opioid medications as you know. Look at the graph in "FDA Opioid Safety Plan Promotes Patient, Physician Education to Prevent Abuse". People actually die from opioids and addiction is an expected side effect of their long-term use.

After reading most of your posts here and on Kevin MD, it is clear you not only have hostility toward physicians who generally want to help you, but you do not fully understand what they do for patients. You expect some magical solution for pain that has no side effects and can be freely prescribed without issues. You constantly degrade physicians yet there is no possibly way with your underlying hostility that you could function in a doctor-patient relationship to come to a mutual solution. If someone sees several different physicians and hates all of them, is it more likely that all those physicians were bad or the patient is not willing to work together with them?

Here is an example to illustrate the point of poor patient-physician partnership in pain management. If a patient comes in with one month of progressive L5 radiculopathy due to nerve inflammation, there are several options for treatment. Opioids mask the pain but do not fix the problem. A steroid injection could not only reduce the inflammation, but allow for the damage to be reversed resulting in a cure for the patient. Yet patients like these present all the time, ignore the educated advice of physicians, and opt for what they think is best.

The majority of physicians went to medical school to help people. They care more about helping you than about money. They have given a significant part of their life to train so they can improve the lives of others. They are limited by lack of resources, a fixed set of treatment options, and legal issues.

Yours posts, specifically "Pain Management Employment Agreement", demonstrates a complete lack of understanding for pain management. You likely do not realize that spreading your misunderstanding and judgments can further deteriorate the doctor-patient relationship for people reading your blog. In effect, you are actually making it WORSE for chronic pain sufferers. Do you think a sufferer who reads your posts then acts negatively with their physician will receive better treatment? I only wonder how many people have read your posts and are now in worse pain because of them.

Payne Hertz said...

Anon 4:57, your post is truly a remarkable expression of arrogance, entitlement and the willingness to project whatever meaning suits your agenda into other people's commentary. You make wild inferential leaps about my relationship with doctors based on the fact that I criticize abuses within the system, and reduce my opinions to ridiculously exaggerated strawmen that anyone who actually takes the time to read my posts carefully would realize I don't believe.

You read my post on a one-sided, patient-centered pain management agreement, saw something that appeared to challenge your power and privilege and that of other doctors, and went off on a rant, not realizing that my imaginary pain contract is satire, and as I carefully stated, more than once, I deliberately put elements into it that are unfair to doctors to illustrate a point—that no doctor would ever sign such a contract, so how can they demand that we sign contracts that are even more unreasonable and destructive of our privacy and rights than this one is? I also warned patients what would happen if they ever actually tried to upset the power balance in the doctor/patient relationship by using this contract, and strongly advised against it, though thanks for providing confirmation that doctors would refuse to treat a patient who was so "negative" and "hostile" as to impose a few terms of his own into one of those "voluntary" pain "contracts" we are forced to sign.

You claim I lack awareness of the legal issues involved, but the fact is, there is no law requiring pain contracts or toxicology screens, or that you try every med and procedure on the planet prior to trying opioids. If you read Kevin MD regularly, then you know there was a recent blow up there over an article called "Should physicians undergo random drug testing?" The howls of outrage from these "civil libertarians" over the notion that anyone would dare make doctors take a drug test were deafening. They demanded studies that showed a link between illicit substance use and poor performance of physicians on the job. Yet if you were to ask these same doctors if pain patients should get drug tested, I'd wager every one of them would agree despite the fact that there is no evidence that a pain patient smoking a joint at home from time to time is any more likely to abuse his pain meds than anyone else.

Of course, I do not encourage pain patients to be hostile with their doctors. Pain patients need to recognize the power dynamic that exists under the current system, and they have very little power in the doctor patient relationship when it comes to getting their pain treated. Their only power is the right to say "no" and very often exercising even that right will result in your being denied treatment for pain as well as other problems. While a patient should not have to tolerate the abuse and exploitation that often arises from this power inbalance, patients need to realize that being confrontational with doctors, even where justified, is usually a losing strategy.

Payne Hertz said...

Part 2 of 2

also have never said that chronic pain patients should seek pain treatment in the ER. In fact, I strongly advised against it. The reason pain patients go to the ER to get their pain treated is because they can't get anyone else to treat it, and they are denied the right to treat their own pain. This is pretty obvious, so I don't know why doctors demand that patients do otherwise when it is doctors, and the system, that forces them to make these choices. I'm sure most people would prefer not to pay $5,000 for a shot of morphine and 10 Vicodin if they had viable choices. As for doctors only wanting to help people and not carting about money, try getting s doctor to treat you for free and watch what happens. Most doctors are opposed to EMTALA, and demand the right to refuse treatment to those who cannot pay.

Many doctors still insist that fibromyalgia isn't a real illness or that it is primarily a psychiatric disroder, so I'd like to see your evidence that every pain specialist has read the relevant studies and therefore recognizes that fibromyalgia is a real disease. I'd also like to see your evidence that epidural steroid injections can "cure" (your word) sciatica and if so, can do so in more than a minority of patients. Everything I have read has shown there is no evidence of long term, let alone complete, relief from epidural injections.

mlang52 said...

Well Said!' I did not understand the outrageous claims given in the comment by anon. Seems to remind me of transformers when the kid asks the,out of line, confrontational cop, "you on drugs?" Makes me wonder about the guy!

Michael G Langley, MD

Unknown said...

I am interested in what these loopholes are that you seem to be caught in so frequently. Hopefully knowing what they are will help the rest of us avoid them in the future.

mlang52 said...

Since my last post, I became chronic pain patient. I fell from a deer stand when it broke. I was just turning to hang up my bow, having not hooked up my safety harness, first. I now suffer from a traumatic neuropathy after an L-2 explosive vertebral body fracture, and a cauda equina injury. Happily, I was not confined to a wheelchair. But, I have suffered for the years, since then, with doctors not listening to my complaints from an inadequately treated neuropathy. It has been, almost, six and one-half years sleepless nights, and maddening discomfort. Now, with the new guidelines being used, more and more people will be choosing death over constant daily suffering. I wonder what type of selfish attitude has developed amongst physicians. But, to those of us, not more interested in money than helping, it is not much of a surprise. Who would give up a lucrative practice by making a statement, about the un-doctor-ly like practice of today's medical professionals. I did deal with a "pain doctor" who, before even offering any alternative therapy to my opiates, discontinued everything but the tramadol that I take, sending off a letter to Medicare stating that I had exhausted all types of therapy. (Which you will see I had not) He suggested that I get dorsal column stimulator (my mother had one that never helped her) Recently, I decided to spend the $45 to get TENS unit. I had never tried it before, thinking that it would increase my severe tingling. It was something that should have been thought of long before invasive surgery! Having experienced one episode of MRSA, I was unwilling to let this unthinking doctor risk my life! I am so glad that I tried the TENS unit. It has been able to decrease the tingling to the point that I can get back to sleep in about fifteen minutes. Thank God that I found something that worked. The doctors' care had been inadequate, up to then. But, then again, it was my idea! I think it is just looking more and more like the doctors that continue practicing are those that are only interested in the money. I should have understood that when my mentor said that he figured out why I was the person I was. He said, "You care too much about the patients!"