JCAHO, Pain Scale, and Drug Seeking Conduct

As we now know, Joint Commission requires that all patients have a right to pain control. Vital signs must address all of the elements of the pain scale, and EMTALA expects that medical records at least at the time of discharge vitals demonstrate improvement in pain levels. Undiagnosed acute pain is an emergency medical condition under EMTALA.

Many physicians, however, are still imbued with the idea that it is a dangerous thing to give patients drugs and that it is their responsibility to turn in offenders. Wrong.

The US Supreme Court in the Ferguson case indicated that in the absence of a law that requires reports to the police of certain types of incidents, reporting drug issues both violates informed consent requirements and breaches the patient's right to privacy. The physician and hospital that turns over patients who present to the ED for what they believe to be drug seeking purposes can be sued by the patient and win.

If the patient commits a direct crime, such as stealing a prescription pad, it may be reported. The medical or conversational details of a visit where the patient sought medical care -- even under a ficticious name -- for the alleged purpose of getting drugs is not free to be discussed with police. Medical records must be subpoenaed.

While Emergency Department personnel work closely with law enforcement in many ways, disclosure of medical visit details must be specifically authorized law or a specific patient consent that indicates that they know that the information will be turned over to police and consent. This type of consent must not be buried in general consent or it will not be likely to stand up in court.

If a patient appears to be drug-seeking, DO NOT be confrontational. Conduct a reasonable examination and treat the patient with respect when indicating that you intend to prescribe only non-narcotics or minimum quantities. If the patient protests, offer to contact their treating physician or to call in a pain specialist/anesthesiologist or neurologist as appropriate to the patient's complaints.

At least one hospital has already gotten an investigation letter from JCAHO over alleged refusal to give drugs for an established diagnosis of chronic pain syndrome and verbal comments about the patient being an addict and being able to "kick" the habit with a little will-power.

Most state licensure boards clearly indicate that pain management is not a licensure issue, even where the patient is drug dependent as a result, as long as an appropriate medical management plan is in place and is consistent with demonstrated need. Dependence is not addiction under these standards.

Acting on one's own in the ED without a consult or appropriate exam, or telling a patient before an exam that they will not be given pain medication may be considered a refusal to provide emergency care under EMTALA.

DISCLAIMER. The information provided is not intended as legal or medical advice, but are written for educational purposes only. The information may have changed or been amended. You should consult a qualified and licensed attorney with specific questions. Any references to any specific professional is not an endorsement of their services, products or qualifications.

From Stephen Frew's medlaw.com

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