Is Inadequate Palliative Care a Form of Elder Abuse and Neglect?

"Palliative care is an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual." (The World Health Organization/WHO, http://www.who.int/cancer/palliative/definition/en/ .)

Palliative care, health care that involves pain management of chronic illnesses as well as care that addresses end-of-life issues, is intended to ease the suffering of patients with incurable conditions and diseases, and to provide support and guidance to their caregivers. However, research has long documented that the management of pain among elders, particularly those residing in nursing homes and/or diagnosed with dementia, is grossly inadequate. In recent years, several landmark lawsuits addressing the inadequate treatment of pain have been brought using state elder abuse statutes, sparking considerable debate across medical and legal communities.

The following annotated bibliography is designed to help service professionals in the elder abuse field understand the issues involved in the debate over whether to consider inadequate palliative care a form of elder abuse and neglect. Various aspects of the topic of inadequate pain management among older individuals and of the legal remedies available are highlighted. In addition, several articles illuminate the ethical and practical concerns that hospice professionals may encounter when treating end-of-life issues in the family setting. General information on the presentation of pain experienced by older individuals and treatment recommendations are also included.* The listing contains some international publications as well; the country of origin is included in the abstract. The bibliography does not include a discussion of physician assisted suicide.

Most of the reference materials can be obtained through local university and community libraries or interlibrary loan services. Increasingly, many resources are available online, and the web addresses are also included.** Some material must be ordered directly through the publisher or production company. When available, contact and pricing information are included with the abstract. If you have difficulty obtaining any of these references, please contact the CANE office for assistance by emailing cane-ud@udel.edu or telephoning (302) 831-3525.

*CANE has previously produced annotated bibliographies on the broader topic of health care professionals and their role in addressing elder mistreatment. To access these and other annotated bibliographies, visit the CANE Bibliography Series on the NCEA Web site.
        
Note: This is a selected annotated bibliography, which does not include all published references related to this topic. To search for additional references on this and related topics, please visit the CANE Web site at:
http://db.rdms.udel.edu:8080/CANE .

**Web addresses may change without notice. If an address provided is no longer accurate, we recommend using a generic search engine, such as Google, to find a current link. If you cannot locate the online publication, contact the CANE offices for assistance by e-mailing cane-ud@udel.edu or telephoning (302)-831-3525.

The National Center on Elder Abuse (NCEA) serves as a national resource for adult protective services, elder rights advocates, law enforcement and legal professionals, public policy leaders, researchers, and citizens. It is the mission of NCEA to promote understanding, knowledge sharing, and action on elder abuse, neglect, and exploitation.

The NCEA is administered under the auspices of the National Association of State Units on Aging.

NCEA Partners
        National Association of State Units on Aging (NASUA), Lead Partner
        American Bar Association (ABA) Commission on Law and Aging
        Clearinghouse on Abuse and Neglect of the Elderly (CANE) at the University of Delaware
        National Adult Protective Services Association (NAPSA)
        National Committee for the Prevention of Elder Abuse (NCPEA)

This publication was made possible through the support provided by the National Center on Elder Abuse. Major funding for the National Center on Elder Abuse comes from the U.S. Administration on Aging, Department of Health and Human Services. Grant No. 90-AM-2792.

Opinions or points of view expressed do not necessarily reflect the official position or policies of the U.S. Administration on Aging.

2007

1. T6672-10
Kirk, T.
Managing Pain, Managing Ethics
Pain Management Nursing; Vol. 8 (1), 25-34; March 2007.
Journal article (scholarship)
Through case study analysis, this article examines the ethical issues that arise when home care hospice nurses encounter family caregivers who are not adequately treating the pain experienced by dying care recipients. In the scenario, the spouse of a man with end-stage colon cancer is inadequately administering his pain medication, which the nurse believes is resulting in increased pain and distress for the patient. The author notes that in hospice care, not only the dying individual but the caregiver(s) are the patients; therefore, the hospice nurse faces an ethical conflict trying to balance the obligation to reduce distress for the dying individual while addressing the needs of the family and empowering the caregiver to provide adequate care. The author provides practical and evidence-based guidance which involve steps to gain insight into the neglectful caregiver's beliefs, perceptions, and actions, in order to modify them. Intervention options are outlined should the nurse and caregiver be unable to resolve the impasse, including legal alternatives (such as a guardian ad litem) or reporting concerns of mistreatment to adult protective services (APS). The implications of these actions are considered.

2. T6679-6
Shega, J., Emanuel, L., Vargish, L., Levine, S., Bursch, H., Herr, K., Karp, J., & Weiner, D.
Pain in Persons with Dementia: Complex, Common, and Challenging
The Journal of Pain; Vol. 8 (5), 373-378; 2007.
Journal article (scholarship)
By using a case study, this article presents a clinical discussion of the diagnosis and treatment of pain in persons with dementia. Untreated and under treated pain among this population can lead to a decline in psychosocial function, increased isolation, and inappropriate medication changes, among other consequences. The importance of observing behavioral changes in patients with dementia, and how they may cue the presence of pain, is emphasized. Fearfulness, combativeness, and agitation may also be indicators of pain. Comprehensive pain assessment of patients with dementia should incorporate the patient's report, behavioral observations made by those involved with the patient, and response to trials of pain relieving medications. The authors note that opioid analgesics (pain relievers) may also exacerbate depression and other psychological symptoms, and must be monitored carefully. (This article is one of a series of case reviews designed to promote clinical knowledge in pain management.)

2006

3. S6335-10
Jayawardena, K. & Liao, S.
Elder Abuse at End of Life
Journal of Palliative Medicine; Vol. 9 (1), 127-136; February 2006.
Journal article (scholarship)
This article provides palliative care professionals, including the hospice team, with an overview of elder abuse and neglect issues that may be encountered during end-of-life care. The authors point out that caregiver stress should be of special consideration to palliative care professionals when assisting terminally ill patients. All health care professionals should be aware of family dynamics and cultural issues relevant to patients' circumstances. The authors suggest that the multidisciplinary nature of hospice care is also effective in addressing elder abuse and neglect. Providing education regarding the dying process, assistance in delegating responsibilities and providing referrals when necessary are not only elements of good care provision, but are also strategies that reduce stress and may prevent abuse and neglect. If the need to report mistreatment to protective services arises, members of the palliative care team are in a position to collaborate with APS in various ways: by providing information regarding mistreatment, as well as patient and family needs; by assisting in engaging the victimized patient in protective services; by participating in the evaluation of the patient's capacity to make decisions; and in communicating ongoing concerns.

4. S6427-5
Mezey, M., Quinlan, E., Fairchild, S. & Vezina, M.
Geriatric Competencies for RNs in Hospitals
Journal for Nurses in Staff Development; Vol. 22 (1), 2-10; 2006.
This article reports on the development and testing of the "Geriatric Competencies for RNs in Hospitals," an instrument designed to measure core nursing skills necessary for appropriate care of older patients. Eight core competencies are identified: communication barriers; physiological and physical age related changes; pain assessment among cognitively impaired patients; skin integrity; functional status (including overall functioning, urinary incontinence or UI, nutrition/hydration, and falls and injuries); restraint use; elder abuse; and discharge planning. Efforts to validate the instrument began by testing geriatric registered nurses (RNs) and non-geriatric RNs on issues related to incontinence and falls. Results indicate that the tool is appropriate for use in the initial and ongoing monitoring of staff strengths and weaknesses.

2005

5. S6415-5
Aminoff, B. & Adunsky, A.
Dying Dementia Patients: Too Much Suffering, Too Little Palliation
American Journal of Hospice & Palliative Medicine; Vol. 22 (5), 344-348; September/October 2005.
Journal article (research)
This longitudinal study was designed to evaluate the suffering of terminal dementia patients from admission to a geriatric ward to the end of life. Seventy-one patients were evaluated weekly by the Mini Suffering State Examination scale (MSSE). Mean survival of patients was 38.0 +/- 5.1 days. According to the data, suffering generally increased throughout most patients' stays; 63.4 percent and 29.6 percent died with high and intermediate levels of suffering, respectively; and only 7 percent of the patients died with a low level of suffering. Additionally, patients experienced restlessness, and pressure sores, and were considered medically unstable. (Israel)

6. S6660-43
Blaufuss, J.
Recent Developments in Health Care Law: Note: A Painful Catch-22: Why Tort Liability for Inadequate Pain Management will Make for Bad Medicine
William Mitchell Law Review; Vol. 31; 2005.
Journal article (scholarship)
This commentary presents an overview of the dilemma that pain management poses for physicians, and the negative implications of using tort liability to address the problem of under treatment. Among the potential negative consequences, physicians may be less willing to practice pain management, which could drive up health costs, and even result in no treatment for some patients. The article first considers issues relating to pain treatment. One obstacle to adequate care is that physicians have generally not remained current in practice and with research, which indicates that fear of opiate addictions among pain patients is unfounded, and that medicating pain with "as needed" (or PRN) prescriptions is not as effective as providing for routine administration. Competing treatment priorities, inadequate medical school curricula, and increased scrutiny by medical regulators are additional barriers to effective pain management practices. The author argues that although areas of tort liability have impacted medical practice positively, pain management is too complex and individualized to be easily regulated and measured. Further, he argues that tort liability has only indirect deterrent effects on individual practitioners. He also believes that changes in hospital accreditation standards and state medical regulations will be more productive than tort liability in achieving changes in pain management practice.

7. S6455-4
Heath, J., Brown, M., Kobylarz, F. & Castano, S.
The Prevalence of Undiagnosed Geriatric Health Conditions Among Adult Protective Service Clients
The Gerontologist; Vol. 45 (6), 820-823; 2005.
Journal article (research)
The purpose of this retrospective study was to determine the prevalence of undiagnosed health conditions among adult protective services (APS) clients from two counties in New Jersey. Two-hundred eleven clients referred to the Linking Geriatrics with Adult Protective Services (LGAPS) program were assessed by a multidisciplinary health and social service team. Dementia and depression were the most commonly undiagnosed conditions; however, untreated pain was identified among nearly one-third of the clients. The detection of numerous medical conditions underscores the benefits of collaborative approaches in addressing elder mistreatment.

8. S6635-20
Johnson, S.
The Social, Professional, and Legal Framework for the Problem of Pain Management in Emergency Medicine
Journal of Law, Medicine & Ethics; p741-p760; Winter 2005.
Journal article (scholarship)
As quoted from the article regarding the inadequate treatment of pain: "...What really appears to be operating is a complex ecosystem that supports ambivalence, denial, and even suspicion of the
circumstance of patients in pain and efforts to treat them. Pain relief in emergency medicine, a
relatively new setting for the study of challenges to treating pain, provides a revealing context for
viewing discrete obstacles to effective pain management in medicine...." Barriers to effective pain management that may be particularly relevant in emergency settings are explored, and include the subordination of pain relief to diagnosis; problems in assessing pain, including the tendency to discount pain among the elderly or children, and the difficulty of assessing pain in those with communication and cognitive impairment; complications of obtaining informed consent; and the typical lack of an established relationship between patient and staff. Legal issues that are explored include malpractice and general tort liability, litigation concerning negligent treatment for pain (with case citations), and legal conflicts that arise when physicians attempt to comply with state and federal regulation of prescribing practices and other relevant statutory guidelines, such as the Emergency Medical Treatment and Labor Act (EMTLA, an act which mandates that facilities with emergency departments receiving Medicare provide assessment and emergency treatment for stabilization, but is unclear regarding the need to conduct pain assessment.) (Note: This article is not specific to elders.)

9. S6657-9
Payne, M.
Adult Protection Cases in a Hospice: An Audit
Journal of Adult Protection; p4-p12; August 2005.
Journal article (research)
This article reports upon the implementation of a multi-agency adult protection response and its impact upon cases involving abuse issues reported at St. Christopher's Hospice of London, a palliative care institution providing both residential and community-based services. Despite concerns regarding patient confidentiality and a lack of confidence in the local authority's ability to address abuse issues, hospice staff participated in training on the new procedures. Specific risks for abuse and exploitation in this setting were identified (such as theft and assault as a means to obtain pain medications). Although some protective policies had previously been in place, no cases of abuse had been reported prior to this initiative. However, 12 cases involving vulnerable adults were reported in the year following the implementation of the new procedures. Two cases alleged institutional abuse, eight cases involved abuse by family members, and two cases involved abuse by others. Substance abuse was a factor in three cases. Outcomes predominantly involved additional services through the protective agency or hospice (such as family intervention, support services, or coordination of care) but three cases were reported to the police, and the two cases of institutional abuse were referred to the commissioners and the national regulator. Results suggest that the integrated response among agencies was less formal than that observed in child protective cases, and the hospice staff in this study had "...not generally found the adult protection procedures useful in managing cases or protecting patients...." Of note, in instances where mistreatment was detected, patients most often requested help, not only for themselves but for their family members and carers. (evidence-based) (Note: This article is currently accessible online through Find Articles at: http://findarticles.com/p/articles/mi_qa4124/is_200508/ai_n15704458/print .) (U.K.)

10. P5921-4
Wilder-Smith, O.
Opioid Use in the Elderly
European Journal of Pain; Vol. 9, 137-140; 2005.
Journal article (scholarship)
The difficulties of opioid treatment of the elderly are considered in this brief overview. While pain sensitivity increases with age, so does the risk of medication-associated problems. The author recommends regular and thorough review of prescribed medications, with attention to dose reduction, drug substitution, and discontinuation.


2004

11. P5876-2
Fishman, S.
The Debate on Elder Abuse for Undertreated Pain
Pain Medicine; Vol. 5 (2), 212-213; 2004.
Journal article (scholarship)
This editorial discusses the issue of elder abuse charges brought against physicians who under treat pain. Two California cases are highlighted: Bergman v. Chin, and Tomlinson v. Bayberry Care Center. The editor points out that while some view these cases as positive in encouraging change for pain treatment, others view it as unfair in light of "...a widespread culture that supports and perpetuates undertreated pain...."

12. S6673-7
Higgins, I., Madjar, I., & Walton, J.
Chronic Pain in Elderly Nursing Home Residents: The Need for Nursing Leadership
Journal of Nursing Management; Vol. 12 (3), 167-173; 2004.
Journal article (research)
This article reports on a qualitative study conducted with Australian nursing home residents regarding their experiences of chronic pain and pain management. Existing international literature indicates that while chronic pain is extremely common among nursing home residents, and effective treatments are available, pain management is typically inadequate, based upon ineffective detection strategies and minimal (at best) monitoring of prescribed medications. These issues are compounded when elders are unable to communicate or decline to report their pain symptoms. Researchers conducted several in depth interviews with thirteen participants during the course of nine months and several themes emerged. Despite being prescribed analgesics (pain relievers) "as needed" and other techniques for pain management (massage, heat treatments, etc.), pain was rarely, if ever, relieved. All participants experienced multiple sources of pain, and both chronic pain and overwhelming pain which was characterized by extreme intensity. In addition, participants indicated that isolation from the nurses was often the response to complaining about pain. The authors pose a series of research questions and urge nurses to lobby for funding to examine various clinical issues including: assessment and treatment of pain among elders; the impact of complementary therapies; and the impact of various care technologies (such as the use of mechanical lifts) upon the resident in pain. Nurses are also encouraged to understand the beliefs and values of elderly residents, to acknowledge their experience of pain, and to carefully monitor the staff members they supervise. (Australia)

13. S6663-5
McIntire, T.
Grandma's Pain: Should Claims of Under-Medication Arise in New Theories of Elder Abuse Statutes or Traditional Medical Malpractice Negligence?
Tennessee Bar Journal; Vol. 40 (10); October 2004.
Journal article (scholarship)
This article discusses whether legal claims addressing inadequate pain management should occur through traditional medical malpractice negligence actions or through elder abuse statutes. Noting that increasing attention to the problem has resulted in more states developing statutes that outline a standard of care in pain management: "...liability in negligence may again be seen as the gold standard in enforcing patients' rights to adequate pain relief from chronic diseases. All the more reason for attorneys to sue in negligence and not via the more complicated reckless standard seen in the elder abuse venue...." In some instances (for example, when evidentiary restrictions prohibit testimony from expert medical witnesses from other localities to establish standards of pain management care), legal actions through elder abuse statutes may be the best and only recourse. (Note: This article is accessible online at: http://www.tba.org/Journal_TBArchives/200410/TBJ-200410-coverarticle.html .)

14. S6659-40
Oyabu, S.
Holding Hawai'i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents
Hawaii Law Review; Vol. 27; Winter 2004.
Journal article (scholarship)
In this commentary, the author describes a legal theory emerging from the results of recent rulings under California's Elder and Dependent Adult Civil Protection Act (Bergman v. Chin, Tomlinson v. Bayberry Care Center) that has established "a standard of care for pain management, however, making the prevailing practice of undertreatment unacceptable...." The article presents an overview of the phenomenon of inadequate pain management in long-term care settings, particularly as it relates to elderly residents of Hawaiian nursing homes, who appear to be more debilitated and experience rates of dementia higher than the national average. The emerging theory that provides patients with a cause of action to address inadequate pain management is applied to existing Hawaiian criminal and civil statutes (such as the Pain Patient's Bill of Rights, which provides state residents with the right to request aggressive pain management, the Dependent Adult Protective Services Act) and initiatives (the Long-Term Care Ombudsman Program, and the Department of Commerce and Consumer Affairs, the Medicaid Investigations Division of the Attorney General's Office). The potential impact of the state's Elder Justice Act, which took effect in 2003 and allows the Attorney General to take civil action on behalf of the state against abusive and neglectful caregivers, is considered, along with civil causes of action under Hawaii's medical malpractice laws. The article concludes with recommendations for non-judicial actions that could provide further protections, such as education and training on pain assessment and management for health care providers, the adoption of an "intractable pain statute," and public awareness initiatives.

15. S6381-6
Rich, B.
Thinking the Unthinkable: The Clinician as Perpetrator of Elder Abuse in Patients in Pain
Journal of Pain & Palliative Care Pharmacotherapy; Vol. 18 (3), 63-74; 2004.
Journal article (scholarship)
This commentary reviews several recent California lawsuits involving inadequate pain management that were litigated under the state's elder abuse law, and considers the strengths, limitations, and implications of such legal actions. The cases of Bergman v. Chin and Tomlinson v. Bayberry Care Center are described. The author concludes that the latter case may signify the beginning of a change in treatment practices; the case was settled out of court, and the California Medical Board ordered that the primary physician complete continuing medical education to improve clinical and communication skills.

16. S6662-13
Vaglienti, C. & Grinberg, M.
Emerging Liability for the Undertreatment of Pain
The Journal of Nursing Law; Vol. 9 (3), 7-17; 2004.
Journal article (scholarship)
This article presents an overview for nurses regarding changing trends in pain management as a result of recent legal and consumer initiatives. A history of pain management dating back to the 1950s is presented which indicates that little progress had been made in the field in almost fifty years. Several lawsuits are highlighted reflecting a growing trend to hold physicians and health care institutions accountable for the inadequate treatment of pain (Estate of Henry James v. Hillhaven Corporation, 1991; Gaddis v. United States, 1997; and Bergman v. Chin, 2001). Noteworthy disciplinary actions for undertreatment of pain are also cited. Position statements of professional medical organizations, including the American Nurses Association (ANA), are reviewed, along with relevant state statutes, the Joint Commission for the Accreditation of Health Organizations (JCAHO) efforts, and clinical practice guidelines (CPGs) developed by various health organizations. The author concludes by indicating that as health care consumers, the Baby Boomer generation has been increasingly instrumental in seeking appropriate pain management and in using legal interventions to address inadequate care.


2003

17. P5655-28
Buhai, S. & Gilliam, J., Jr.
Symposia: Honor Thy Mother and Father: Preventing Elder Abuse Through Education and Litigation
Loyola of Los Angeles Law Review; Vol. 36; Winter 2003.
Journal article (scholarship)
This article provides a synthesis of presentations made by Seymour Moskowitz, Jeanne Finberg, and Kurt Eggert, at the Loyola School of Law's Symposium, "Honor Thy Mother and Father: Symposium on the Legal Aspects of Elder Abuse," which took place on April 26, 2002. Included are highlights of the symposium's panelists' discussion regarding elder abuse litigation, particularly under California's Elder and Dependent Adult Civil Protection Act. The Act, designed to motivate lawyers to take on elder abuse cases, allows family to pursue pain and suffering damages following a victim's death. Three litigation issues were identified and explored: whether or not to consider elder abuse as a separate cause of action or an enhanced remedy for negligence (which is affected by the statute of limitations); whether elder abuse is simply a claim for professional negligence (which impacts burden of proof, compensation limitations, standards of care, etc.); and whether chronic understaffing in nursing homes is grounds for action under elder abuse or professional negligence. Issues of proof, clear and convincing evidence standards, corporate ratification of reckless disregard for the patient's care, the use of institutional care regulations, the use of expert testimony, and the admissibility of evidence of prior incidents are other topics considered.

18. P5344-8
Fisher, C.
The Invisible Dimension: Abuse in Palliative Care Families
Journal of Palliative Medicine; Vol. 6 (2), 257-264; 2003.
Journal article (scholarship)
The ultimate goal of palliative care is to enable the terminally ill patient to have a "good death," often within the context of home and family. While elder abuse research indicates that approximately 4.6 percent of Australia's elderly population experience some form of mistreatment, palliative care research does not reflect the likelihood that most caregiving families are abusive. This article serves as an overview of elder abuse and neglect for palliative care professionals. Acknowledging that traditional interventions (such as family meetings) may exacerbate family dysfunction, nurses and other health care professionals are urged to be alert to potential risk factors or indicators of abuse. Multidisciplinary approaches are particularly valuable. Issues of control, which are central to both abuse and dying, are considered.

19. S6683-7
Gilson, A., Joranson, D., & Maurer, M.
Improving State Medical Board Policies: Influence of a Model
Journal of Law, Medicine & Ethics; Vol. 31, 119-129; Spring 2003.
Journal article (research)
In 1997, the Federation of State Medical Boards (FSMB) convened a work group of experts to draft model guidelines for the use of controlled substances in pain management. This article describes research to evaluate the influence of the Model Guidelines and the differences between state medical board policies adopted before and after the Model Guidelines were adopted. Findings indicate that the FSMB's Model Guidelines have positively influenced the development of state medical board policies in relation to pain management; a majority of those developed since the Model Guidelines were adopted recognize pain management as a standard part of medical practice, encourage pain management, and do not include language that "could unduly restrict physician decision-making, medical practice, and patient care...." (Note: This article is not specific to elders.)

20. P5278-12
Jakobsson, U., Klevsgard, R., Westergren, A. & Hallberg, I.
Old People in Pain: A Comparative Study
Journal of Pain and Symptom Management; Vol. 26 (1), 625-636; July 2003.
Journal article (research)
Although common wisdom assumes that pain is a part of the aging process, and that it
increases with advancing age, very little research has been conducted to assess the impact of pain
upon older people. This study was designed to compare individuals aged 75 and older who
experience pain with those who do not. In addition, the research analyzed which variables
(demographic data, social network, functional limitations, fatigue, sleeping problems, depressed
mood, and quality of life [QOL]) were associated with pain. The sample was drawn from a larger
study in southern Sweden and included 1,654 people reporting pain and 2,439 not reporting pain.
Residents of the community as well as those in nursing homes participated. Participants were
grouped by age (75-79, 80-84, 85-89, and 90 and older). The overall prevalence of pain was 40.4 percent with 20 percent reporting "rather much" or "very much" pain. Both the prevalence and severity of pain increased with advancing age. Among the two oldest groups, those in pain showed significantly lower economic assets than those without. Pain was significantly associated with walking and mobility problems, fatigue, sleep disturbance, depression, and QOL. Social network did not appear associated with pain. Results imply that health care professionals should pay particular attention to pain assessment in the oldest of old as it appears interrelated to QOL and functional ability. (Sweden)

21. P5253-38
Mayer, G.
Bergman v. Chin: Why an Elder Abuse Case is a Stride in the Direction of Civil Culpability for Physicians Who Undertreat Patients Suffering from Terminal Pain
New England Law Review; Vol. 37, p313; Winter 2003.
Journal article (scholarship)
Research continues to indicate that the undertreatment of pain is a major concern throughout most medical specialties. This article considers why pain and suffering is not a legitimate medical malpractice complaint. As physicians typically do not adequately manage pain, undertreatment of pain does not deviate from the standard of care, which is often the basis for malpractice suits. The literature reviewed on assessing pain management reveals discrepancies for patients along the characteristics of age, race, and gender. The author examines the legal arguments of the landmark case, Bergman v. Chin, which was filed under the Elder and Dependent Adult Civil Protection Act in California, and goes on to describe the impact of this decision upon the standard of care in California.

22. P5666-29
McIntire, T.
Is the Pain Getting Any Better? How Elder Abuse Litigation Led to a Regulatory Revolution in the Duty to Provide Palliative Care
Elder Law Journal; Vol. 11; 2003.
Journal article (scholarship)
In the article, the author, who is both a physician and attorney, describes the recent trend to bypass medical malpractice legislation and to instead use elder abuse statutes to hold physicians responsible for inadequate pain management. As an outcome, it appears that state legislatures and medical licensing boards are adopting intractable pain laws and treatment protocols which raise the standard of palliative care. The article contains a checklist of assessment and treatment guidelines for appropriate pain management for chronic and end-stage illness.

23. P5200-7
Simon, S. & Gurwitz, J.
Drug Therapy in the Elderly: Improving Quality and Access
Clinical Pharmacology & Therapeutics; Vol. 73 (5), 387-393; May 2003.
Journal article (scholarship)
This article addresses the use of inappropriate drugs, the inappropriate use of drugs, and the underutilization of potentially beneficial medications in the elderly. While there has been a decline in the use of inappropriate medications, there are approximately 1,900,000 adverse drug events among Medicare enrollees annually, 180,000 of which are life-threatening or fatal. These events, many preventable, typically occur as a result of how the drug is administered (drug interactions, inaccurate dosage, etc.) Underutilization of medication in the following conditions has been observed in treatment of the elderly: asthma, cardiovascular disease, hypertension, dyslipidemia, stroke prevention, osteoporosis prevention, pain management, and depression. The exclusion of older patients in clinical trials regarding medication forces physicians either to under prescribe certain medications, or to prescribe without adequate evidence of efficacy and safety.

2002

24. P5067-2
Herschman, G. & Wasserman, M.
Keeping Pain Control Out of the Courts
Provider; p45-p46 March 2002
Observing that a landmark case regarding inadequate pain management litigated under the
California Elder and Dependent Adult Civil Protection Act has implications for long-term care providers, this article reviews the need for facilities to update pain management protocols and to offer ongoing training and education to staff. The need to observe pain as the fifth vital sign and treat it accordingly is emphasized.

25. P5056-21
Lewis, T.
Perspectives on Elder Law: Pain Management for the Elderly
William Mitchell Law Review; 2002.
Journal article (scholarship)
This essay describes the ethical, legal, and physical complexities of pain management when
medically treating the elderly. Two cases are reviewed that illustrate legal and ethical dilemmas. In State of Kansas v. Naramore, Dr. Naramore was initially convicted of attempted murder of a terminally ill patient, following the increase of her pain medication after discussing the potential consequences with her family. In the second case, Bergman v. Chin, the family was initially awarded $1.5 million as Dr. Chin was held liable for failing to adequately treat the patient's pain.

26. A26-11
Rich, B.
Moral Conundrums in the Courtroom: Reflections on a Decade in the Culture of Pain (The
Caduceus in Court)
Cambridge Quarterly of Healthcare Ethics; Vol. 11 (2), 180-190; Spring 2002.
Journal article (scholarship)
This article reviews the legal and ethical considerations of pain management. The lawsuits of Henry James v. Hillhaven Corporation and Bergman v. Chin are presented as examples of the disparity between the prioritization of pain management by patients and their families and by health care professionals. The author suggests that legal remedies, rather than clinical guidelines, will have a greater impact upon changing physicians' practices.

27. S6684-3
Pain Management: Advising and Advocating for Good Care; Seeking Redress and Accountability for Inadequate Care
NAELA Quarterly; Vol. 15, 17-21; Fall 2002.
Journal article (scholarship)
This article highlights the role of elder law attorneys in advocating for appropriate pain assessment and management as part of health care, and in attempting to redress inadequate care. The author encourages attorneys to direct elders, their families, and their surrogate decision-makers to overtly address pain management with the patient's physicians and nurses, and provides specific, relevant questions to use when discussing medical issues. Civil lawsuits, medical and nursing board complaints, and complaints to regulatory agencies are among the avenues for redressing inadequate care.

2001

28. N4630-6
Desbiens, N.
How to Help Families Better Assess Patients' Pain
Geriatric Times; Vol. II Issue 3; May/June 2001.
Journal article (research)
This article discusses the role that family can play in assisting institutional staff in assessing and
treating pain accurately, particularly among cognitively impaired patients. The authors describe the findings of SUPPORT (the Study to Understand the Prognoses and Preferences for Outcomes and Risks of Treatment) that indicate that families are generally successful in identifying the patient's experience of pain, but not at accurately assessing its magnitude. Interactive education of staff and family, and communication regarding the patient's behavioral changes are essential to improved pain management. (Note: This article is available online only at http://www.geriatrictimes.com/g010527.html .)

29. L4538-7
Epps, C.
Recognizing Pain in the Institutionalized Elder with Dementia
Geriatric Nursing; Vol. 22 (2); 71-77; 2001.
Journal article (scholarship)
Experts estimate that between 49 and 83 percent of nursing home residents experience pain. It is also estimated, and appears to be born out in the research, that those residents who are diagnosed with dementia are undertreated for pain. Most likely, this is due to the cognitively impaired resident's limited ability to verbalize his or her experience. This article summarizes the available research on the pain assessment of elders with dementia and provides a descriptive chart of relevant studies. In particular, the nurse's ability to detect the patient's behavioral "pain cues" and behavioral changes is discussed.

30. L4515-24
Furrow, B.R.
Pain Management and Provider Liability: No More Excuses
Journal of Law, Medicine & Ethics; Vol. 29, 28-51; 2001.
Journal article (scholarship)
Since 1973, medical research has indicated that pain is undertreated in all sectors of health care: outpatient, hospital, and long-term care facilities. This comprehensive article discusses legal remedies to apply external pressure to the medical profession in order to bring about a higher standard of care in pain management, including referral to qualified specialists and increased use of opioids. Case law is cited to demonstrate how issues such as negligence, intentional infliction of mental distress, informed consent, corporate negligence, etc., can be litigated not only for individual patient/family awards but to bring about desired changes in current medical practice, medical school curricula, and continuing professional education. It is noted that nursing home residents may have less legal recourse due to the likelihood of limited financial resources and the possibility of cognitive impairment coupled with poor advocacy. However, False Claims Act of the Omnibus Budget Reconciliation Act of 1987 may benefit these patients who experience unrelieved chronic pain.

31. V7
UM Video Press, producer
Elder Abuse: The Real Definition - Neglect
Terra Nova Films, Distributor, Chicago, IL; 2001.
Video
This 20 minute video (part of the "Elder Abuse: The Real Definition" series) examines situations that would be defined as institutional neglect: not responding to call bells, ignoring requests for assistance, ignoring pain cues, not reporting changes in mental or physical status, not changing residents when necessary. (Note: This video is not available through CANE. To order, contact Terra Nova Films, 9848 S. Winchester Ave., Chicago, IL 60643, 1-800-779-8941, web site http://www.terranova.org . Price: $149.00, rental $75.00. Item code: VP/EANVHS)

2000

32. N4591-4
King, S.
JCAHO Pain Standards
Geriatric Times; Vol. I (4); November/December 2000.
Journal article (scholarship)
This brief article provides an outline of the pain management standards that have been adopted by the Joint Commission on Accreditation of health care Organizations (JCAHO) for evaluation in 2001. The directive that pain be assessed in all patients as the fifth vital sign, the utilization of
appropriate methods to evaluate pain in nonverbal patients (including post-stroke and dementia
patients), and education of both patients and staff are emphasized. (Note: This article is available
online at http://www.cmellc.com/geriatrictimes/g001232.html .)
        
        
Online Clinical Pain Management Guidelines:

The Management of Persistent Pain in Older Persons
http://www.guideline.gov/summary/summary.aspx?ss=15&doc_id=3365&nbr=2591#s23 .

Model Guidelines for the Use of Controlled Substances for the Treatment of
Pain, Federation of State Medical Boards
http://www.fsmb.org/pdf/2004_grpol_Controlled_Substances.pdf

Achieving Balance in Federal and State Pain Policy: A Guide to
Evaluation (Third ed., 2006), Pain and Policy Studies Group of the University of Wisconsin School of Medicine and Public Health
http://www.painpolicy.wisc.edu/Achieving_Balance/EG2006.pdf

Achieving Balance in State Pain Policy: A Progress Report Card
(Second ed., 2006), Pain and Policy Studies Group of the University of Wisconsin School of Medicine and Public Health
http://www.painpolicy.wisc.edu/Achieving_Balance/PRC2006.pdf

Note: As the issue of pain management in general becomes more publicized, organizations and professional societies continue to develop clinical guidelines regarding standards of practice. Additional resources may be accessed through the National Guideline Clearinghouse, online at: http://www.guideline.gov .

To search for additional references on this and related topics, please visit the CANE Web site at: http://db.rdms.udel.edu:8080/CANE .
To access other annotated bibliographies on aspects of elder mistreatment, visit the CANE Bibliography Series on the NCEA Web site.