Compassion in Dying Federation (CIDF) is a national nonprofit public interest organization advocating improved end of life care, including specifically improved pain care.

The American Academy of Pain Management (AAPM) is the largest multidisciplinary pain management organization in North America. AAPM is an accredited CME/CEU provider for most disciplines. The AAPM works to reduce barriers to effective pain management by bringing together all disciplines that routinely treat pain. The AAPM achieves this goal through: continuing education, credentialing, publications, measures of outcome, pain program accreditation and facilitating dialogue among disciplines.

Americans for Better Care of the Dying is a public education and advocacy organization dedicated to ensuring that every American can count on good care when facing eventually fatal chronic illness.

{{Ben A. Rich, J.D., Ph.D., is Associate Professor of Bioethics at the

University of California-Davis Medical Center in Sacramento. In his 6 years

As a full-time academic he has made the ethical and legal issues in pain

management the primary focus of his research, lecturing, and publication.

He has written extensively on the causes of and solutions to the problem of

undertreated pain. Prior to beginning his academic career, he devoted

nearly 20 years to representing health care institutions and professionals

in private law practice and as legal counsel to 2 major academic medical

centers.

Sylvia A. Law, J.D., is Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, NYU School of Law.

Robert V. Brody, M.D., is a board certified internist and a pain care specialist. Dr. Brody is Chief of the Pain Consultation Clinic and Chairman of the Ethics Service at San Francisco General Hospital, and Clinical Professor of Medicine and Family and Community Medicine at the University of California at San Francisco.}}

Amici submit this statement to assist you as public officials in appreciating the significant broad public health issues implicated in the case.

"Pain is a more terrible lord of mankind than even death itself." Pain can be debilitating. Persistent pain can destroy the quality of life and erode the will to live. Thus, relieving pain and suffering has been a core duty of physicians since ancient times.

Modern medicine has the ability to relieve or reduce suffering caused by nearly all types of pain. Nevertheless, patients in the U.S. are routinely undertreated for pain. This problem has been widely recognized and documented in the medical literature. In a seminal medical study of end of life care, researchers found that 50% of all patients who died during hospitalization "experienced moderate or severe pain at least half of the time during their last 3 days of life."

Elderly patients are particularly vulnerable to insufficient pain treatment. A recent study in the Journal of the American Medical Association found that up to 40% of cancer patients in nursing homes are not appropriately treated for pain. In addition, 26% of those experiencing pain did not receive any pain medication, and 16% were given over-the-counter pain relievers like aspirin or acetaminophen for their pain. In nursing homes in the State of Utah, 49.5% of residents were found to be in persistent pain, the highest percentage in the nation.  (See article)>>  At the same time, it is well established that only perhaps 10% of dying patients have conditions in which alleviation of pain is truly difficult or impossible. One repeatedly identified cause of this problem is physician concern that prescribing controlled substances will invite scrutiny and adverse consequences.

This problem of inadequate pain treatment, which has devastating consequences for individuals, families and communities, is rooted not so much in technology as in ignorance and persistent prejudice about pain, opioids and addiction. Pain is needlessly perpetuated and suffering prolonged when, in the name of drug control, a doctor faces adverse consequences for actions taken in the exercise of sound medical judgment and in conformity with accepted standards of practice. When sanctions are imposed in such circumstances, the unfortunate message is sent to all physicians that in heeding their training, oath and duty to their patients, they risk losing their job, livelihood, professional reputation and even their freedom.

It is not uncommon for physicians to be investigated for prescribing controlled substances in amounts that regulators perceive as excessive. Even when the physician’s conduct meets relevant guidelines for pain management, such investigations have on occasion resulted in discipline by a medical board, including suspension or revocation of prescribing authority, other limitations on medical practice, and other penalties, until reversed by a court. Such fear of negative repercussions resulting from attempts to alleviate pain and suffering has created the current healthcare crisis of undertreatment of pain.

The obligation of a physician to treat pain attentively and aggressively, especially in the context of end of life care, has been increasingly recognized by medical societies and regulatory bodies. Over the past 15 years, dozens of guidelines and policies pertaining to pain management have been promulgated, all emphasizing the duty of the physician to treat pain as a critical aspect of medical care and to be aggressive in that treatment. These include the World Health Organization, the American Pain Society, the American Medical Association, the Agency for Health Care Policy and Research ("AHCPR"), the Federation of State Medical Boards, the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO"), and the Health Care Financing Administration ("HCFA").

Courts have recognized the legal duty of medical providers to treat pain attentively and aggressively and have entered significant damage awards against providers who fail to do so. The United States Supreme Court has expressed the opinion that adequate pain care is a right protected by the United States Constitution. Prosecution of a physician providing attentive and aggressive pain and palliative care to elderly patients at the end of life has the potential to send a message that will serve to increase physician concern that provision of adequate pain care could bring regulatory and even criminal scrutiny and thus increase the pressure on physicians to underprescribe pain medications to suffering patients.

The experiences of conscientious physicians who are punished for employing effective and accepted pain therapies will remain in the minds of physicians long after a medical lecture or journal article on the efficacy of opioid analgesics. Therefore, pursuit of criminal charges in this case will affect not only those involved in the case at bar but countless other physicians and the patients who turn to them for help in the treatment of pain and distressing symptoms at the end of life.

We urge you as public officials to fully appreciate the serious problem of undertreatment of pain, and to recognize that a criminal prosecution of a physician engaged in the effort to treat and relieve pain and symptoms of elderly, seriously ill and dying patients sends a resounding message to the physician community that treating pain exposes them to risk of serious adverse consequences.

Physicians are now, finally, receiving the message that pain management is a critical aspect of care and that pain should be treated attentively and aggressively. Sanction of a physician for heeding these messages will undermine and impede progress toward improving pain care that is underway and so long overdue.

In this case there is expert testimony and opinion by reputable medical experts, including Dr. Perry Fine, that the care provided by Dr. Weitzel met accepted standards of care. In such an instance a jury cannot reasonably find the defendant physician guilty beyond a reasonable doubt. In such instance, criticisms regarding the physician’s care of the patients should be resolved in the professional disciplinary context or possibly the medical negligence context.

We urge you to give careful consideration to these important issues in exercising prosecutorial discretion in the case before you involving Dr. Weitzel.

Respectfully Submitted this __ day of _________, 2001.

_____________________

Kathryn L. Tucker, J.D.

Director of Legal Affairs

Compassion in Dying Federation

On behalf of all amici

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