Reality dictates that some physicians, even in the face of clear pain, will not be willing to prescribe opioids. More commonly, they are willing to prescribe low doses but have a personal comfort level limit that may or may not be adequate for you. Moreover, if you push him to titrate doses above that comfort level, he may decide that you are a drug seeker. This serious ethical problem-the physician putting his perceived personal safety before his patient-is a deplorable situation
that can lead to abandonment.
https://rsds.org/your-pain-your-rights- ... -hospital/
A physician can abandon a patient whom he views as drug seeking or who has in some way “violated” the informed consent agreement. Although state laws and medical ethical rules do not allow abrupt termination of a physician-patient relationship, a prescriber does not have to keep you in his practice. If you are stable and able to find another physician, he can terminate you if he provides a brief written explanation of his reasons. An oral message is insufficient. The physician
must also agree to continue your care for at least 30 days and he should also provide a referral.
However, if you are at a critical or important point in your treatment, abandonment by notice and 30-day care is not permissible under common law. This restriction should apply to a patient taking opioids for pain because the consequences of withdrawal for a person who has a chronic illness could be significant.
Additionally an un-medicated patient may face a return of the pain that had been mediated by the opioids; he will almost certainly experience anxiety and distress. In short, a period without continuity of care could constitute a medical emergency. It seems logical that refusal to treat a patient until the patient has obtained another physician (or perhaps until it becomes clear that the patient is not making a serious effort to transfer care) should constitute abandonment.
What Can You Do?
Try Informal resolution. Deal with the termination immediately. If the physician is in a clinic setting, ask the head of the clinic if another physician there will take over your care. Speak to other health care professionals who know you well enough to be comfortable calling to explain that you are genuinely in pain and are a reliable, conscientious person.
Ask for a meaningful referral. Tell your prescriber you will need his help in finding another physician and you have a right to his assistance. Get your records and review them carefully. Federal privacy law (HIPAA) requires your physician to provide your records promptly and to charge you no more than his actual costs of copying. It also allows you to have your records corrected if they contain errors. Review them for accuracy and look closely at what they say about the reason for termination. Phrases like “drug seeking” or “possibility of abuse” will hurt your efforts to find another physician. If he has used these phrases, write him a letter, preferably through an attorney, and use the words “abandonment,” defamation” and “emotional distress” if the attorney confirms that they are appropriately used in your state.
File a Complaint with the State Medical Board. Every state has a medical board that reviews all complaints and takes action when necessary. Only two state boards have disciplined any prescriber for under treating pain, so it is not possible to see this yet as a meaningful remedy. However, as more complaints are made and individual physicians show a pattern of patient abandonment, state boards are more likely to act.
State board complaints are not complicated. You do not need an attorney, but if you have one, take advantage of his advice. The forms themselves are simple and straightforward and are available on your state’s website. You can also order them by phone. Make your complaint more effective by writing a clear statement of what happened to you and any difficulties that you are having in finding another physician. Avoid a long, rambling statement. It may help if you number each paragraph and tell your story chronologically. If possible, have someone else read it to make sure it seems clear.
Do not feel limited by a form that does not allow much space for your comments.
Explain the emotional and physical impact of the termination. If you think your physician terminated you unfairly, state why. Make it clear if he was verbally abusive! Attach brief statements by anyone who has observed the impact that the termination has had on you and any other documents that may help the board understand that you are a legitimate pain patient with a serious medical condition.
If you want to follow up with the board, talk with the clerk to make sure it was put on the docket. Find out who is responsible for the investigation and ask to speak with him. Answer any questions and ask to be kept informed of case progress.
Consult an Attorney About a Formal Action
Abandonment is a tort (legal wrong) that may give you cause for a legal action against your physician. To prove abandonment you usually have to show (a) a physician-patient relationship; (b) that was terminated or neglected by the physician and (c) that caused you harm. An attorney can advise you about
your state’s requirements. Additionally, there is a tort called “infliction of severe emotional distress,” which requires (a) an action taken by the defendant (b) which was reasonably foreseeable to cause severe distress; and (c) that it did in fact cause severe emotional distress. Some states require a physical injury, but there is some precedent that recognizes pain as such. A growing body of medical evidence that untreated pain has serious physical consequences would
substantiate this view. If the defendant physician knew and intended to cause the emotional harm, a more serious tort is invoked. The requirements of these torts are often complicated and you should discuss your state’s precedents with your attorney.
Do not take a suit lightly and do not expect a windfall. Litigation is very hard on anyone with a chronic illness and even more so with RSD because of the stress involved. It prevents you from moving on. If you cannot afford to pay an attorney, you will have to convince one that the case is worth taking on a contingency basis; experience has proven this difficult. Most attorneys know very little about opioids and even less about pain management. You will need to educate your attorney so that he can evaluate your case intelligently.
You can find additional information on legal assistance in the directory, In Pain and Agonizing Over the Bills. For a print
copy, contact the RSDSA office at (877) 662-7737.
1. AMA Ethical Statement 2.1, made effective for chronic
pain by the Council on Ethical and Judicial Affairs in 2002.
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