Transcript PAIN MANAGEMENT: WHEN IS ENOUGH TOO MUCH?

PAIN MANAGEMENT: WHEN IS
ENOUGH TOO MUCH?
Make a habit of two things: to help; or at least to do no harm.
Hippocrates
The WC Act
• 77 P.S. § 531
• provides for payment of reasonable
medical benefits as and when needed.
• includes, among other things, medications
Whose Burden?
Where WRI admitted, Employers BOP to
establish that medical services are NOT
reasonable and necessary.
Fotta v. WCAB (U.S. Steel/USX Corp.), 714 A.2d 479
(Pa.Cmwlth. 1998); Lehigh Valley Refrig. Servs. v.
WCAB (Nichol), 548 A.2d 1321 (Pa.Cmwlth. 1988).
Treatment has been held to be reasonable
and necessary although
• It is merely palliative in nature and produces no lasting
benefit. Trafalgar House v. WCAB (Green), 784 A.2d
232 (Pa.Cmwlth. 2001)
• it is designed only to manage the employee’s symptoms
rather than to cure or permanently improve the condition.
Cruz v. WCAB (Philadelphia Club), 728 A.2d 413
(Pa.Cmwlth. 1999).
• It does not increase the employee’s physical capacity.
Central Highway Oil Co. v. WCAB (Mahmod), 729 A.2d
106 (Pa.Cmwlth. 1999).
Modalities of pain management
1. OTC analgesics
ibuprofen, acetaminophen and aspirin
2. Physical therapy and supervised exercise
3. Acupuncture and holistic treatments
4. Opioid and narcotic medication regimens
A.
Short-acting medications
B.
Long acting medications (timed or
extended release)
5. Interventional techniques
VARIATIONS OF OPIOIDS:
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Fentanyl Citrate,
Morphine,
Codeine,
Hydrocodone (Vicodin, Lortab),
Methadone,
Oxycodone (Percocet, Oxycontin),
Hydromorphone (Dilaudid) And
Meperidine (Demerol)
Opioids are addictive. Over time,
patients’ focus may shift from
recovery to obtaining more of the
opioid.
Do Opiods Drive Costs of Claims??
1. Without use of opioid/narcotic –
average $13,000.00
2. Short acting opioid like percocet –
average triples to $39,000.00
3. Long acting opioid like oxycontin –
average to $117,000.00
Do Financial Incentives Drive Use
of Opiods??
• In 20 states where a doctor can both prescribe a
drug and sell the drug to the injured person, the
overall claim cost is even higher.
• Illinois: Vicodin average cost is 0.53 at pharmacy
and $1.44 when sold by physician.
• “Illinois capped the amount of money a
physician could make on physician dispensing
and all of a sudden physicians didn’t dispense
as much as they used to.”
http://www.insurancejournal.com/news/national/
2013/05/17/292528.htm)
ISSUES INVOLVING OPIOD USE
• Meant to improve recovery - instead can lead to
disability
• Use beyond acute phase of injury can impair
function
• Opioid use can become an additional barrier to
recovery
• Opioid use may actually increase the pain
experience (hyperalgesia)
• Dependency and addiction is no one’s desired
outcome
NOT JUST WC
• CDC:
“Centers For Disease Control And Prevention
Has Classified Prescription Drug Abuse As An Epidemic”
(www.whitehouse.gov.ondcp.prescription-drug-abuse)
• CDC:
“Opioid-related Overdose Deaths Are
National Epidemic” (www.hcplive.com/articles/opioidsrelated-Overdose-deaths-are-a-national-epidemic)
• OFFICE OF NATIONAL DRUG CONTROL POLICY:
“Prescription Drug Abuse Is The Nation’s Fastest
Growing Drug Problem.”(
http://www.whitehoues.gov.ondcp/)
NOT JUST WC
• FDA:
“Food & Drug Administration Is
Extremely Concerned About The Inappropriate
Use Of Opioids, Which Has Reached Epidemic
Proportions In The US., Becoming A Major
Public Health Challenge.”
(blogs.fda.gov/fdavoice/index.php/2013/03/fdajoins-with-health-professional-organizations-inencouraging-prescribers-to-seek-training-tosafely-prescribe-opioid-pain-medicines/)
OPIOIDS DRIVE CONTINUED INCREASE IN
DRUG OVERDOSE DEATHS
• There are close to 40,000 drug overdose deaths
each year in the U.S. and the number continues
to rise. (CDC)
• More than ½ of overdose deaths involve
prescription medications. (CDC)
• Opioid related deaths now exceed deaths
involving heroin and cocaine combined. (CDC)
AMERICAN COLLEGE OF OCCUPATIONAL
AND ENVIRONMENTAL MEDICINE
GUIDELINES FOR WHEN OPIOIDS SHOULD
BE USED
BACK PAIN (The Most Common WC Injury)
“Opioids might be good for use in the acute
phase, say within 6 weeks after injury. But if
it doesn’t improve in the short term,
continuation is not really indicated.”
http://www.insurancejournal.com/news/nation
al/2013/05/17/292528.htm
OPIOD USE IS PREVALENT IN
WC CLAIMS
• Roughly 80% of injured workers who get
pain medication are prescribed opioids.
• http://www.insurancejournal.com/news/nati
onal/2013/05/20/292528.htm
CONTROLS ARE NOT
• Protocols suggest periodic random urine drug screening
for patients on opioids
• Not happening in Pennsylvania, New York And New
Jersey
• Only ¼ or less of non-surgical workers’ comp claims
identified as longer-term users of narcotics had routine
urine drug testing.
• http://www.insurancejournal.com/news/national/2013/05/
20/292528.htm
LONG TERM USE RESULTS
• In PA 11% of non-surgical WC claims with
narcotics identified as longer-term users
• Tied for 3rd highest state
Workers Compensation Research Institute
CHANGE IS ON THE WAY
PENNSYLVANIA PRESCRIPTION DRUG
MONITORING PROGRAM
• Housed In The Attorney General’s Office.
• Pending bills seek to enhance - establish a
pharmaceutical accountability monitoring system - an
electronic system for monitoring all scheduled drugs.
• Seeks to reduce the abuse of controlled substances
PENNSYLVANIA PRESCRIPTION DRUG
MONITORING PROGRAM
• Seeks to provide a tool to ensure practitioners
making prescription decisions have complete
information about what other prescription drugs
may have recently been prescribed to their
patients.
• Data to go to central repository to help identify
patient/practitioner behaviors that give rise to
reasonable suspicion that prescription drugs are
being inappropriately obtained or prescribed, .
• http://www.insurancejournal.com/news/national/
2013/05/20/292528.htm
How do WC Payers Identify Cases
Where They Think Problems Exist?
When the Payer Identifies a
“Problem Case,” What Are Its
Options?
• Non – litigation
– Self help?
– Pharmacy records?
– Demand UTs and Pill
counts?
– Any other options initially?
• Litigation
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UR
IME/Petition to Review
IME/Forfeiture Petition?
Comparative
strengths/weaknesses?
IF
• palliative care is reasonable
• C is taking pursuant to RX
• C’s use is compliant
How do you prove the
medications are not reasonable or
necessary?
Malpractice
Sword or Shield?
Medical Malpractice –
the elements:
• (1) The physician owes the patient a duty of care
and was required to meet or exceed a certain
standard of care to protect the patient from
injury;
• (2) the physician breached this duty or deviated
from the applicable standard of care; and
• (3) the patient was injured and the injury
proximately resulted from the physician's breach
of the standard of care.
ER’s Are Liable for Med Mal
• ”[I]t has long been the settled and
unquestioned… where the negligence of
parties who treat a worker causes
injuries… the employer or its insurance
carrier is responsible to pay benefits.
• Powell v. Sacred Heart Hosp., 514 A. 2d
241(Pa. Cmwlth.1986) (citing 1923
Supreme Court precedent)
Two Schools of Thought Doctrine
• Where competent medical authority is divided, a
physician will not be held responsible if in the
exercise of his judgment he followed a course of
treatment advocated by a considerable number
of recognized and respected professionals in his
given specialty.
• Jones v. Chidester, 610 A.2d 964. (Pa. 992)
Settlement
• Hurdles/Impediments created by RX use
• Unseen opportunities – using settlement
as the carrot (stick?)
Ethical Problems for
Claimant’s Counsel
• RPC – must treat an impaired/disabled
client as normally as possible.
• RPC – must zealously represent
– What if losing the case is the best outcome?
– Addiction = DENIAL
• Is there a financial incentive (e.g. conflict
of interest) to be cavalier?