Pain Rules, Part 2
It is fortunate that the Texas Legislature recognized that the treatment of pain is a legitimate practice and created some protections for practitioners who choose to treat pain. According to the law, a doctor cannot be disciplined for prescribing or administering a narcotic in the treatment of chronic pain.[1] The law offers further protection by preventing hospitals and other health care facilities from prohibiting or restricting the use of controlled substances for the treatment of chronic pain.[2]
The Texas Medical Board (hereinafter “the Board”) has promulgated rules on pain as well. In so doing, the Board expresses its recognition that “[t]he treatment of pain is a vital part of the practice of medicine.”[1] The Board even states that doctors can treat pain “…using sound clinical judgment without fear” of disciplinary action.[1] The Board even recognizes that the use of drugs is an “…essential tool for the treatment of pain.”[2] Unfortunately, the reality is these high-minded laws are enforced somewhat differently by the Board.
Definitions You Need to Know
The law defines “intractable pain” as: “…a state of pain for which the cause of the pain cannot be removed or otherwise treated; and in the generally accepted course of medical practice, relief or cure of the cause of the pain: is not possible; or has not been found after reasonable efforts.”[6] Interestingly, the Board has a slightly different, but important definition of “chronic pain.” By rule, the Board defines chronic pain as “a state in which pain persists beyond the usual course of an acute disease or healing of an injury. Chronic pain may be associated with a chronic pathological process that causes continuous or intermittent pain over months or years.”[7]
Although the author does not believe the differences between the two definitions of synonymous words are overly significant, in certain situations they can be. In the statutory definition, the critical factor appears to be the issue of what is generally accepted in the medical practice. This is, of course, problematic, as the term “generally accepted” possesses wide and varying meaning depending on numerous factors, including practice location, specialty area, advances in medicine, and the like. Whereas, in the Board’s rules, the critical factor for the Board is the length of time a person is in pain, pointing to pain over months or even years. This raises the legitimate questions how and when does one decide that the pain has existed long-enough to classify it as chronic. Must the length of time be two months, ten months, a year, or more? Pointing back to the statute, it suggests one measures the pain “beyond the usual course of an acute disease or healing of an injury.” However, that definition is as subjective as pain itself.
The Board explains its charge is to “…assure that drugs are used in a therapeutic manner.”[8] It admonishes that a doctor’s duty is to help, and not harm the patients and the public with their prescribing authority.[9] The Board warns of the failure to use “sound medical judgment” that may lead to harm.[10] The Board warns of both overuse of medications, but also under use of drugs.[11] Despite these somewhat dire warnings, the Board advises that as long as the doctor is utilizing “sound clinical judgment” they should not fear the government.[12] Fear for most practitioners is not so much a concern that they are harming their patients; rather, who is the arbitrator of what sound clinical judgment is?
By Jon Porter. If you wish to contact Jon, e-mail him at porter@healthlicensedefense.com
[1] Texas Occupations Code §107.151 (Vernon’s 2006).
[2] Texas Occupations Code §107.053 (Vernon’s 2006).
[1] 22 Texas Administrative Code §170.1 (2007).
[1] Id.
[2] 22 Texas Administrative Code §170.1(2) (2007).
[1] Texas Occupations Code §107.151 (Vernon’s 2006).
[2] Texas Occupations Code §107.053 (Vernon’s 2006).
[3] 22 Texas Administrative Code §170.1 (2007).
[4] Id.
[5] 22 Texas Administrative Code §170.1(2) (2007).
[6] Texas Occupations Code §107.002 (Vernon’s 2006).
[7] 22 Texas Administrative Code §170.2(4). (2007).
[8] 22 Texas Administrative Code §170.1(3). (2007).
[9] Id.
[10] 22 Texas Administrative Code §170.1(4). (2007).
[11] Id.
[12] 22 Texas Administrative Code §170.1(5). (2007).
