Barry R. Furrow

Pain management and liability issues

Pain management is evolving as critics clamor for improvement in patient care. Progress, however, is surprisingly slow, the result of continued uncertainty by providers as to appropriate opioid use, fear of criminal prosecution, and lack of institutional attention to pain management. Progress, however, is also evident, with accreditors paying more attention to pain management, the implementation of team approaches in some hospitals, and the recognition by physicians and other providers that pain, just as any clinical problem, needs to be treated in an effective manner.

Must Physicians Reveal Their Wounds

The physician–patient relationship is anchored in trust. Historically the relationship has been a paternalistic one, with the patient expected to trust the physicians training and skills in doing what is “best” for the patient. But medical knowledge has expanded, as have treatment options and knowledge of the risks of treatment. The physician must now possess volumes of specialized knowledge about procedures and treatments, side effects and alternatives, drugs and their contraindications. Information has become a companion to trust. The patient, while still dependent on the physicians expertise, now wants information about choices and hazards in treatment. Expanded choice has made the patient a consumer of healthcare and its risks rather than a passive recipient of treatment from the professional.

The Problem of Medical Misadventures: A Review of E. Haavi Morreim's Holding Health Care Accountable

ealth-care provider liability has again taken center stage in American political debate, but with an H ironic twist. In the seventies, physicians wanted tort reform, but they measured such reform solely by a reduction in both the risk of being sued and the size of any judgment a plaintiff could win. Malpractice reforms in many states in the seventies therefore capped damages, reduced contingency awards to lawyers, and restricted other tort rules to limit plaintiff success. Today physicians are conflicted. They want an increase in liability exposure not for themselves, but for managed care plans. We have therefore ended up with a series of overlapping debates, with the same debaters taking contradictory positions. Should managed care organizations until now protected by ERISA preemption from liability be liable? Physicians say yes. But should physicians be protected from the threat of suit, which they argue acts as an in terrorem device that drives disclosure of medical errors into hiding? Physicians also say yes. Other questions are recycled as well from earlier malpractice reform debates. Should we finally turn to contract models and dispense with the randomness of tort suits? Should we give it all up and go to some form of statutory compensation system, like Sweden? These questions were first raised almost thirty years ago during an earlier malpractice “crisis,” and they are resurfacing today for a different set of reasons.’

Patient Injury and Liability: Why Worry?

W e live in an anxious world, riddled with unpredictable threats to our safety and unexpected hatreds directed toward us. It is easy to obsess on the terrors around us, about which we can do little, and lose perspective on the real and sometimes devastating risks that we encounter in our daily lives. These everyday risks need to be regularly revisited to remind ourselves that they can be reduced with the application of sharp minds, careful scholarship, and political will. Medical errors in the American health-care system are just such a problem. The risk of death or serious injury at the hands of the American health-care system is not trivial, as we have learned over the past few years as the health-care establishment has acknowledged the level of iatrogenic injury in the system. If, as the Institute of Medicine reported in To Errls Human, as many as 100,000 people every year are dying in hospitals, clinics, and doctors’ offices as the result of actions or omissions that could have been avoided, then this is a social problem of great magnitude and one that the law must try to correct. The power of modern medicine to harm as well as benefit has increased exponentially over the past few decades. The proliferation of pharmaceutical solutions to health problems has given modern medicine much of its power from the anti-lipids for cholesterol such as Lipitor, to the bone density drugs like Fosamax, to the dozens of antibiotics to fight infection (of which Cipro has become so visible), to the AIDS drugs to prolong life. These drugs often require complex administrative safeguards (Coumadin), accuracy in use, and high levels of patient compliance, Errors, therefore, result in their administration, and side-effects are not always known until after years of use in the marketplace. The use of