Courts Weigh In on Use of Drugs for Assisted Suicide & Pain Management

by Susan M. Pettey, JD, MPA

A federal district court has invalidated attempts by the US Department of Justice (USDOJ) to thwart the Oregon law permitting physician-assisted suicide in Oregon v. Ashcroft.

In April, Judge Robert E. Jones of the Federal District Court for the Ninth Circuit ruled that the federal government does not have authority under the Controlled Substances Act (CSA) to prohibit physicians from dispensing drugs used to assist in suicide.

The CSA sets forth a comprehensive federal system for regulating and controlling certain drugs. Under the act, physicians must obtain a certificate of registration from the Drug Enforcement Agency (DEA) in order to prescribe controlled substances. The US Attorney General may deny, suspend, or revoke a physician's DEA registration if such a registration is determined to be not in the public interest. CSA regulations state that a prescription must be issued for a legitimate medical purpose.

In November 2001, US Attorney General John Ashcroft reinstated a Clinton-era USDOJ position that holds that prescribing federally controlled substances to assist suicide is not a "legitimate medical purpose" and violates the CSA. The state of Oregon challenged the USDOJ position in order to protect its Death with Dignity Act, which allows terminally ill patients to ask a physician for medication to hasten death.

Judge Jones described the case before him as a "battle between the state of Oregon and the federal government over which government has the ultimate authority to decide what constitutes the legitimate practice of medicine, at least when schedule II substances regulated under the Controlled Substances Act...are involved." He invalidated the USDOJ position and issued a permanent injunction against its implementation.

Judge Jones determined that "congress did not intend the CSA to override a state's decisions concerning what constitutes legitimate medical practice...[and] never intended, through the CSA or any other current federal law, to grant blanket authority to the Attorney General or the DEA to define, as a matter of federal policy, what constitutes the legitimate practice of medicine."

Judge Jones noted that such determinations have traditionally been left to state statutes, regulations, and medical boards. "The CSA was never intended, and the USDOJ and DEA were never authorized, to establish a national medical practice or act as a national medical board," he determined.

A friend-of-the-court brief, filed by the American Academy of Pain Management and other groups supported efforts to void the new USDOJ policy decision, noted that "often it is medically impossible to dissociate intentionally ameliorating a dying patient's agony from intentionally shortening the time left to live." The case may not end here, however, as the USDOJ is expected to appeal the ruling.

Bergman v. Chin

In other news regarding the prescription of drugs for pain, a California Superior Court judge denied defense motions to set aside the verdict against a physician for elder abuse and reckless negligence for inadequate control of a patient's pain in the seminal case of Bergman v. Chin. The judge also awarded attorneys' fees to the patient's survivors, and increased the award to emphasize the importance of the case and the need for effective pain management.

The Bergman v. Chin decision in 2001 marked the first time that a court determined that a physician may be liable for not adequately controlling a patient's pain. In this case, Mr. Bergman, an 85-year-old man, suffered from chronic lung disease, with consistently high self-assessed pain scores. He was admitted to a hospital, complaining of intolerable pain, and was treated there by Dr. Wing Chin.

Nurses charted that the patient suffered high levels of pain during his hospital stay, but after five days' hospitalization, he was discharged, still in pain. The man' s family complained to the Medical Board of California, which observed that "our medical consultant did agree with you that pain management for your father was indeed inadequate, but concluded that there was insufficient evidence to pursue disciplinary action against the physician."

Dr. Chin contended that he had followed established protocols in prescribing pain medication, and that neither the patient nor the family requested more pain medication.

A medical malpractice suit against the physician was dismissed before trial, and a suit against the hospital was settled for an undisclosed amount. A civil case against Dr. Chin was brought under California's Elder Abuse and Adult Civil Protection Act. The California law allows survivors to sue for a patient's pain and suffering. In such a case, the defendant must be found to have behaved recklessly, not merely negligently, as in a malpractice case.

A jury found in favor of Mr. Bergman's survivors and awarded $1.5 million in damages. The damages were later reduced by the judge to $250,000 by applying the state's medical malpractice cap, although the case had not been brought as a malpractice case.

The April 2002 decision to not allow a new trial for Dr. Chin also applied a 1.5 multiplier to the earlier court award, raising the award to $375,000, to underscore the importance of the case to the public interest.

Although this is a state case, it has garnered national attention because it found a physician liable for undermedication of pain, and because of the large original award. Several other suits have since been filed in other states, alleging negligent management of pain.

Susan M. Pettey, JD, MPA, is Caring's Public Policy columnist and a Contributing Writer.

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