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.

Pain Contracts: "Cooperation," or Coercion?

"Pain contracts" are signed agreements between a patient and a doctor specifying the terms and conditions under which the doctor agrees to treat a patient's chronic pain with opioid medications. These contracts typically include provisions which require patients to comply with the doctor's treatment recommendations, submit to random drug screening, refrain from the use of alcohol or illegal drugs, and keep their appointments. These contracts also usually specify that a patient may be discharged from the doctor's care or denied further treatment for any violation of the agreement. Though they sometimes go by different names, such as "pain management contracts," "narcotic contracts," "opioid contracts," etc., they are generally known as "pain contracts" and thus imply a legally-binding, contractual relationship between the doctor and patient. They are used almost exclusively for opioid medications. For a typical example of a pain contract, click here (pdf download).

Pain Contracts are another result of the DEA's war on pain patients and their doctors. Doctors use pain contracts to cover their rear; as proof to the DEA and other law enforcement agencies that they are properly supervising those patients who get opiates. An additional benefit to doctors is that they serve to dissuade patients from filing lawsuits who have been discharged for failing to follow the rules. They treat pain patients as suspects in advance. But are these contracts really legally binding? Definitely not.

These "contracts" are not legitimate, legally-binding contracts. They are essentially one-sided demands from your doctor, signed under duress, which treat you as a suspect in advance, rob you of your privacy and your right to be an active participant in your own health care and your rights to accept or refuse treatments, and allow the physician to renege on his moral and ethical duty to treat you with a pseudo-legal agreement that you signed with the moral equivalent of a gun pointed at your head.

To understand the nature of the gun pointed at your head, you have to understand the concept of "duress." Under contract law in most states and common law countries, a contract is unenforceable if it is signed under duress. As an example, if someone says you must sign this contract or I'll kill you, that is clearly duress, and that contract will usually be unenforceable. Similarly, when a doctor says you will sign this contract and abide by its terms or I will withhold medication from you (essentially sentencing you to torture until you can find another doctor) that is also very clearly duress. Add to that the danger of being medically blacklisted for violating one of these contracts, or even for refusing to sign one, and it is as if the doctor has a gun pointed at your head. You do not have the option of not signing the contract and still receiving medical care.

From the Wikipedia :

Duress has been defined as a "threat of harm made to compel a person to do something against his or her will or judgment; esp., a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition." An example is in Barton v. Armstrong, a decision of the Privy Council. Armstrong threatened to kill Barton if he did not sign a contract, so the court set the contract aside. An innocent party wishing to set aside a contract for duress to the person need only to prove that the threat was made and that it was a reason for entry into the contract; the onus of proof then shifts to the other party to prove that the threat had no effect in causing the party to enter into the contract. There can also be duress to goods and sometimes, the concept of 'economic duress' is used to vitiate contracts.

Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. The law presumes that in certain classes of special relationship, such as between parent and child, or solicitor and client, there will be a special risk of one party unduly influencing their conduct and motives for contracting. As an equitable doctrine, the court has the discretion to vitiate such a contract. When no special relationship exists, the general rule is whether there was a relationship of such trust and confidence that it should give rise to such a presumption.

You do not have to be a lawyer to realize that narcotics contracts very clearly meet the definition of duress. They enable your doctor, who is in a position of power, to take advantage of you by not only refusing medical care at will, but forcing you to undergo any and all treatments he recommends or be tortured. Such a contract not only amounts to duress, but a blank check for the doctor to get whatever he wants from you, so long as it would otherwise be legal. These contracts completely rob you of your right to autonomy as a patient and to refuse certain medical treatments, while offering no guarantees of any treatment from the doctor, other than a vague promise to "treat pain" (if it even includes that) which can easily be fulfilled by prescribing Tylenol and sending you to physical therapy.

Is is right for your doctor to say, "if you don't get back surgery, or injections, or take anti-convulsants, I will no longer prescribe your pain medication"? It shouldn't be because patients are supposed to have a say in what treatment they will accept--especially drugs and surgery, but it happens every day. Many contracts mandate treatments, including alternative therapies, that have little evidence of efficacy, carry pronounced risks and impose additional costs on patients who are already struggling against bankruptcy due to medical bills and the inability to work due to disability and undertreated pain.

Terms: A set of clauses defining the exact set of promises agreed to. (Wikipedia)

This is critical. A valid contract should clearly spell out the terms of what is being agreed to to. Contracts are often voided for vagueness. Most of these contracts do not clearly spell out your obligations, but instead have vague terms like "go to PT" or "follow the doctor's treatment plan" without that plan being spelled out clearly in advance. You can sign one of these contracts, take narcotics long enough to develop a physiological dependency, and then find out that unless you agree to dangerous, invasive or unnecessary treatments, you will be taken off your meds. These contracts generally do not require your doctor to taper your withdrawal.

Consideration: consideration is the benefit being conferred on each party in exchange for fulfilling their end of the contract. if you say "I will mow your lawn for $20.OO" then the lawn mowing and the $20.00 are both forms of consideration. So long as you mow the lawn, you should get the $20.00.

Consideration can be implied, such as there is an implied obligation to pay your medical bills if you see a doctor, even if the terms and costs have not been agreed in advance. But consideration has to be two-sided, even if the consideration is inadequate. Both sides must benefit from the contract somehow: "I will give you my Mercedes for a $1" can be a legitimate contract. "I promise to give you my Mercedes" generally isn't, because you're not getting any consideration.

Most narcotics contracts do not offer any consideration on the part of the doctor. Generally, they are a list of obligations for you to follow, but do not state any obligation to actually perform or do anything on your doctors part, and even where this is a promise to "treat your pain," does this mean if he refuses to treat you, you can get your money (consideration) back? Which leads to the next points:

Mutual Right to Remedy: Both parties must have an equal right to remedy upon breach of the terms by the other party. (Wikipedia)

Clearly, your rights to any kind of legal remedy if your doctor refuses to honor the contract are almost nil.

Mutual Obligation to Perform: Both parties must have some obligation to fulfill to the other. This can be distinct from consideration, which may be an initial inducement into the contract." (Wikipedia)

Your doctor is under no obligation to perform his end of the contract, but you must perform every aspect of yours or he can refuse to treat you. If your doctor refuses to properly titrate your dose, you have no remedy under these contracts. But if you refuse to see a therapist, even if you can't afford one, he can boot you out of his office without so much as a warning.

These are just a few of the reasons why these contracts are bogus. They are coercive instruments that do not meet the requirements of a legally binding contract, they are detrimental to the doctor/patient relationship which must be based on mutual trust, they impose draconian punishments for even the mildest violations, and most importantly they are an infringement on the right of patients to autonomy in decisions regarding their own bodies and their lives.

Not only do these contracts often mandate treatment modalities that may be invasive, dangerous, or of uncertain benefit, they may contain provisions which allow the doctor to contact your friends and family to ensure that you are complying with your treatments, and require you to list family members and friends for them to contact! The East German Stasi was notorious for using this particular tactic against potential non-compliants. The pain contract may also contain provisions that allow the doctor to inform local emergency rooms, urgent care centers, pharmacies or other doctors if you are discharged from the program for any reason. This amounts to a demand that you assent to patient blacklisting and to violations of your confidentiality and privacy if at any point you dare to exercise your right to say "no." That none of this should be permissible or legal in a democratic, free society is without question.

These contracts do nothing but put into writing what is an inescapable reality for people with chronic pain: that the medical profession has total power over us, and we'd better do what they say or else. They are indisputable evidence of the reality of our situation, put into writing and signed by us under duress as if this somehow legitimizes the crime being perpetrated against us. They put the lie to the idea that we have any choice in our medical care, other than to choose between submission and torture. Since they are not legally enforceable, these contracts are not so much a legal out for the doctor as an "ethical" out. If you violate the contract that you "voluntarily" signed then the consequences are all your fault, not the doctor's, and he can bullshit himself into believing that you therefore deserve your fate (if he doesn't already believe that). He can imagine that coercion, patient abandonment, patient blacklisting, violations of patient confidentiality, and economic exploitation are all "ethical" because you "agreed" to it.

In short, these contracts are a fraud and a con, allowing the doctor to con himself as well as you. I can only hope someday some smart lawyer will round up a few of these contracts and file a class action suit against the AMA for putting us into a situation where we have to sign away our rights or be tortured.