Pain Patient's Bill of Rights

Saturday, March 12, 2005 | 0

by John W. Miller, Esq.

"Through me the way into the suffering city,
Through me the way to the eternal pain,
Through me the way that runs among the lost.
Justice urged on my high artificer;
My maker was divine authority,
The highest wisdom, and the primal love.
Before me nothing but eternal things were made,
And I endure eternally.
Abandon every hope, ye who enter here."

Dante was not talking about the New World Order of workers' compensation treatment and I am not aware of him predicting the future, but before you shed all hope and bathe in total despair, I present for your enjoyment three code sections comprising the Pain Patient's Bill of Rights[ ] and the Intractable Pain Treatment Act[ ]. Follow along as we navigate a new journey. I will leave it to the reader to determine if they might thwart the ACOEM guidelines, and everything we have been told about Medical Provider Networks[ ] before they really get off the ground.

In Health and Safety Code Section 124960, the Legislature found and declared:

Inadequate treatment of acute and chronic pain originating from cancer or noncancerous conditions is a significant health problem.

For some patients, pain management is the single most important treatment a physician can provide.

A patient suffering from severe chronic intractable pain should have access to proper treatment of his or her pain.

Due to the complexity of their problems, many patients suffering from severe chronic intractable pain may require referral to a physician with expertise in the treatment of severe chronic intractable pain. In some cases, severe chronic intractable pain is best treated by a team of clinicians in order to address the associated physical, psychological, social, and vocational issues.

In the hands of knowledgeable, ethical, and experienced pain management practitioners, opiates administered for severe acute and severe chronic intractable pain can be safe.

A patient suffering from severe chronic intractable pain has the option to request or reject the use of any or all modalities to relieve his or her severe chronic intractable pain.

Also added in 1997 is section 124961 known as the Pain Patient's Bill of Rights. It provides, in part:

A patient suffering from severe chronic intractable pain has the option to request or reject the use of any or all modalities in order to relieve his or her severe chronic intractable pain.

The third code was enacted in 1990. It is Business and Professions Code Section 2241.5 . It contains the following definition (as used in H&S Sections 124960 and 124961:

"Intractable pain," as used in this section, means a pain state in which the cause of the pain cannot be removed or otherwise treated and which in the generally accepted course of medical practice no relief or cure of the cause of the pain is possible or none has been found after reasonable efforts, including, but not limited to, evaluation by the attending physician and surgeon and one or more physicians and surgeons specializing in the treatment of the area, system, or organ of the body perceived as the source of the pain.

Does the Pain Patient's Bill of Rights allow an injured worker with intractable pain to pick any modality of treatment or must he/she accept the ACOEM guidelines?

When assigned to an MPN, do the options provided in H&S Sections 124960 and 124961 allow the injured worker to pick any treatment regimen and is the physician in the MPN required to comply with the patient's desires for treatment?

These codes were in place before SB899. They were not amended or affected by it. ACOEM may be a guide for treatment but if a person suffers from severe chronic intractable pain, he or she can pick from every treatment option whether in ACOEM or not. How then do the rights granted by these laws interplay with the employer's obligation and liability for medical treatment?

The Pain Patient's Bill of Rights appears to offer a safe harbor to injured workers who meet the definition of intractable pain but we will have to wait and see how the courts deal with it.

by attorney John W. Miller of Miller & Associates, Thousand Oaks, California. You can reach him at (805) 497-0857, or by e-mail at john@m-associates.com.

Footnotes:

1. Health and Safety Code Section 124960 and 124961, added by the Legislature in 1997, should be read together, although 124961 alone is referred to as the Pain Patient's Bill of Rights.
2. Business and Professions Code Section 2241.5, added in 1990
3. In researching this article, I stumbled upon one of the quatrains of Nostradamus published in 1555. Although he wrote in code, he may have predicted the New World Order created by SB899 in 2004!

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