Nearly everyone alive has experienced pain—sometimes mild and fleeting, sometimes serious and chronic. Considering how universal the experience of pain is, it’s surprising that medical professionals don’t do a better job of understanding and managing it.
According to studies and surveys by the CDC, between 20% and 25% of Americans have experienced chronic pain, lasting three months or more. For many people, chronic pain stems from a condition that lasts months or years. That kind of pain can interfere with daily functioning—the ability to care for oneself or one’s family, to work, or simply to enjoy life. When is pain an unavoidable fact of life, and when is inadequate pain management something you can actually sue your doctor for? In some cases, inadequate pain management rises to the level of medical malpractice.
For a doctor’s action or inaction to constitute medical malpractice, it needs to violate the standard of care: what a reasonable doctor in a similar situation would do. In other words, the doctor’s conduct breaches their duty of care to their patient. Further, that breach of care must cause an injury that leads to damages (something for which the patient should be compensated).
One example might be a patient who is experiencing severe pain after abdominal surgery, but whose doctor dismisses their complaints and refuses to investigate further or to prescribe appropriate medication. If the patient’s pain was caused by post-surgical infection, they might suffer further tissue damage and develop chronic pain that could have been avoided with prompt diagnosis and treatment.
Another common scenario might involve a patient who is terminally ill with cancer that is causing severe pain. The doctor fails to provide opioid medicine that is medically indicated for that level and type of pain due to personal beliefs about addiction. As a result, the patient endures weeks of needless suffering before death instead of being able to spend meaningful time with their family.
In the wake of the opioid epidemic, it’s also not uncommon for doctors fearing regulatory consequences to prescribe a dosage of pain medicine that is too low, or to abruptly cut off a patient’s opioid pain medication without appropriate tapering. These actions can lead to anguish from unmanaged pain, depression, withdrawal, reliance on illicit drugs, or even suicide.
Failure to diagnose and treat chronic pain conditions like fibromyalgia and lupus may also be pain management medical malpractice. Many patients, especially women, are told that they are exaggerating their symptoms or that the pain is “all in their head.” Not only is this type of dismissive treatment humiliating and disrespectful, the delay of diagnosis and adequate treatment can worsen the prognosis of the disease and the level of the patient’s disability.
It’s always helpful to keep notes, if possible. Document your symptoms, your communications with your doctor, their response, and the ways in which the pain has limited your life. It’s also a good idea to get a second opinion. Many people hesitate to do this out of fear of offending their current doctor, but ethical providers don’t mind. Not only can another doctor provide a new perspective or more in-depth evaluation, their opinion may be helpful if you do decide to sue your current doctor for inadequate pain management. Under some circumstances, you may want to consider filing a complaint against the doctor who failed to address your pain with your state’s medical board. This could lead to an investigation into the doctor’s actions.
Last, but not least, contact an experienced medical malpractice attorney to explain your situation and discuss your options. Not every bad outcome equals malpractice. Sometimes pain cannot be completely resolved even with a doctor’s best efforts. The mere fact that your pain persists after treatment does not necessarily mean your doctor did something wrong. But you have the right to be listened to and treated with respect. If your doctor was dismissive of your pain, accused you of exaggerating, making things up, or drug-seeking, or if they failed to investigate the source of your pain, it’s possible that legal action is appropriate.
If you do have a viable claim for inadequate pain management, you may be entitled to both economic and non-economic damages. Economic damages refer to financial losses or expenses you incurred as a result of your provider’s actions. They include things like:
Noneconomic damages are things that are subjective and more difficult to quantify, but which are very real and deserve compensation, such as:
It’s important to remember that causation is a challenging issue in pain management medical malpractice cases. The defense is likely to argue that your claimed damages result from the medical condition that caused you to seek treatment, not from a provider’s inadequate pain management. It is important to work with an attorney who concentrates their practice in medical malpractice. These cases are more complex than typical personal injury cases.
To learn more about inadequate pain management or to discuss the particulars of your situation, contact the Fraser Law Firm to schedule a complimentary consultation.
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