After 40 years of debate among doctors, medical review boards and law-enforcement officials, state legislatures have begun passing laws to shield doctors from being prosecuted for prescribing powerful medications against intractable pain.
At the same time, leaders of major medical institutions said, a fundamental change was occurring in the willingness of doctors to prescribe narcotics and other such medication to treat pain.
Last week, the agency that accredits most of the nation's health-care organizations adopted standards under which the organizations must "recognize the right of patients to appropriate assessment and management of pain." The agency, called the Joint Commission on Accreditation of Healthcare Organizations, accredits about 20,000 hospitals, nursing homes and home-care agencies, which together provide some 96 percent of the nation's in-patient care.
"Unrelieved pain has enormous psychological effects on patients," said Dr. Dennis O'Leary, president of the joint commission, "and research shows that unrelieved pain can slow recovery, create burdens on patients and their families, and increase costs of the health-care system. And we believe patients have an explicit right to effective assessment and management of existing pain."
In addition, half of the state medical boards in the nation have in recent years adopted model guidelines, written by the Federation of State Medical Boards, to protect doctors from losing their licenses for prescribing morphine and other narcotics, so long as they are given strictly for relieving pain.
For decades, doctors have been caught between complaints of undertreating pain and concern about being disciplined or prosecuted for being too aggressive.
Law-enforcement officials have been watchful for doctors who may supply narcotics to addicts for profit, or overprescribe drugs as a form of mercy killing or assisted suicide, and patients or their families have complained bitterly that they or their loved ones have often been left without relief to suffer needlessly for long periods.
In the early '80s, for example, Dr. Harvey Rose, a pain specialist in Sacramento, Calif., was accused by the California Medical Board of overprescribing pain medication. He succeeded in fighting the charge, but only after spending four years and $140,000. He then helped lead the efforts to make California one of the first states to enact the protective laws, in 1990, for doctors who use narcotic medications to treat chronic and intractable pain.
Relatively few criminal cases of overprescribing narcotics have actually been brought against doctors, "but the ones that were had a tremendously chilling effect," said Dr. Allen Licher, past president of the American Society of Clinical Oncology. "Doctors just did not want to take the chance of getting caught up in that."
But the pendulum has swung. "Doctors and policy-makers both have finally come to see that treating chronic, intractable pain is one of the essential tasks of caring for a patient," Licher said.
Nineteen states now have laws that protect doctors from prosecution by state and local law-enforcement agencies for overprescribing painkillers so long as the medications are needed to treat pain caused by medical disorders. The states are: California, Colorado, Florida, Minnesota, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Virginia, Washington, West Virginia, Wisconsin and New Mexico, according to the National Conference of State Legislatures. A decade ago, no states had such protection.
Most of the changes have come in the last three years, and dozen more states, along with the U.S. Senate, are considering similar legislation.
Besides the new legal protections, medical advances in recent years and broad cultural changes have also been factors in the change, said Dr. Kathleen Foley, a pain-management specialist at Memorial Sloan-Kettering Cancer Center in New York.
"There has been such an explosion in science in the understanding of pain systems, and because of this, along with the efforts of many brave people to persuade their colleagues to change their attitudes toward treating pain, the great barriers that have existed to proper pain control are finally coming down," Dr. Foley said.
One barrier used to be the fear of creating narcotics addicts, noted Dr. June Dahl, a professor of medicine at the University of Wisconsin Medical School who was on the panel of the Federation of State Medical Boards that adopted the pain guidelines. But, Dr. Dahl said, "There is absolutely no data that show patients properly treated for severe pain with painkillers becoming addicted except for those with a history of drug abuse, and they have to be screened out."
Medication for severe, long-term pain usually includes opiates or a narcotic that in the correct dosage dulls pain and induces sleep but in overdoses can cause convulsions and death.
"What one must know is that when the medication is built up slowly over time, when the doses are gradually increased, a patient can tolerate levels high enough to relieve very severe pain," Dr. Dahl said, although she cautioned that the doctor, the patient or a relative of the patient must have some expertise in pain control.
Officials, doctors and researchers at cancer treatment centers, the National Institutes of Health, the American Medical Association, patient-support groups and several universities have been at the forefront to bring about the changes.
They have built on the efforts of people like Dr. Elizabeth Kuebler-Ross, who as a professor of medicine at the University of Chicago Medical School in the 1960s was ostracized by fellow doctors for complaining that they routinely neglected patients once they became terminally ill and left them to die in pain.
But the medical establishment has been slow to change. Dr. Melvin Konner, an anthropologist at Emory University in Atlanta and a graduate of Harvard Medical School, said that as recently as the 1980s interns in university hospitals were routinely told to ignore the pain of sick or injured newborn babies because their brains were too undeveloped to experience it. "We now know that this is not so," Konner said.
Just last year, the Journal of the American Medical Association reported a Brown University study of 13,635 cancer patients in nursing homes, age 65 or older, showing that only 26 percent of those in pain were given any medication. And in 1995, the journal published a survey in which family members of one group of 4,301 conscious patients who died in hospitals reported that 50 percent of them were in moderate to severe pain during the last eight days of their life. Though some patients refuse medication, the percentage was regarded as far lower than the number of patients who want pain relief if given the choice.
Despite the changes in law and medical board guidelines, pain treatment remains controversial. In Sacramento, Calif., Rose said he had to argue vigorously to get the right amount of medicine for his wife to relieve her pain as she was dying of cancer in 1994 -- and then again last year for himself when he was recuperating from a quadruple bypass.
Last February, another Californian, Dr. Frank Fisher, was charged with three counts of murder in the deaths of three patients treated at his clinic in Redding. Fisher was jailed, unable to post the bail, set at $15 million, to await trial. He said he treated a large number of patients, many of them poor, who had chronic intractable pain but had been snubbed by other doctors. "I feel like I'm being punished for behaving in good conscience and for doing the right thing," he said.
But a spokesman for the California attorney general's office insisted that enough evidence had been presented at a preliminary hearing from other doctors, who said "an inordinate amount of painkillers" were being prescribed, to justify a trial on the case. The prosecutor's concern was that, rather than treating real pain, the doctor was simply supplying drugs to those who abused them and who had no medical need.
A group of Fisher's patients came to his defense, including the husband of one of the alleged victims, who said she had had grave health problems and did not die from her medications. The head of the local county health center called Fisher's arrest "a disaster, like a natural disaster, like an earthquake," and said the county was suddenly left with hundreds of people who were unable to get the medication they needed.
On July 16, the murder charges were dropped and Fisher was released after four months in jail, on the ground that there was insufficient evidence of an intent to kill. But the doctor is not free and clear: The three murder indictments were reduced to manslaughter.
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