Pain (23 page)

That pain relief was political practice was not new, particularly for physicians. As we've seen, decades of litigating pain had placed the courts in a position of power to judge suffering and determine the limits of relief, particularly in disability cases. The 1970s and 1980s had also produced a growing role for federal government agencies from the Federal Drug Administration to Health and Human Services to the Drug Enforcement Administration in regulating, adjudicating, and prosecuting the misuse of pain drugs. An expanded war on drugs raised the stakes for doctors who prescribed narcotics for their patients. The expanded role of the courts, the police, government, and politicians in pain management left many physicians deeply frustrated by the oversight, which (in their view) interfered with the doctor's work of relief.

The election of Bill Clinton as president in 1992, with his strong push for health care reform, created a combative climate for all health issues and drew physicians into a growing political fray. The call for reform
ignited an old fight with organized medicine, precipitating a record number of doctors to run for political office. As one 1994 report noted, “Republican Party chairman Haley Barbour says it should be no surprise that doctors are leaping into politics. With the president trying to ‘blow up' the current health-care system and replace it with a government system, doctors ‘understand the threat.'”
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But unlike in the 1950s, not all doctors shared the American Medical Association's conservative antigovernment outlook. Many supported the Democratic initiative for single-payer insurance. Still others ran on a libertarian platform that rejected what they interpreted as government interference in health care, including regulatory restrictions on pain treatment and PAS. By the time Kevorkian went on trial, a notable group of physicians had begun crossing the divide between medicine and legislation, pushing from several points of view for reform in the name of people in pain.

Consider, for instance, the actions of Stratton Hill, a Texas pain specialist at Houston's M.D. Anderson Cancer Center. After years of being victimized by what he saw as an unforgiving government oversight of pain medicine, Hill sought a political détente. As he put it, “I'm tired of apologizing for using narcotics to treat patients in pain.” Like-minded practitioners had been bringing these concerns to state and federal official for years. (In 1980 and 1984, for example, the U.S. Congress heard and rejected appeals to approve heroin as a painkiller for cancer patients.) Using his professional stature at the state's premier cancer center, Hill approached the state legislature in the late 1980s and advocated for new legislation that would allow him to practice aggressive, compassionate care for his patients without fear of prosecution. The law, he believed, should not threaten doctors as it currently did but should instead protect them from prosecution for acts of compassionate care using strong painkillers. He insisted that there were “many cancer patients in pain, especially those with advanced cancer, [who] are not getting enough opiate narcotics to relieve their suffering.” In his view, “cultural anti-drug pressure ‘intimidates' doctors into prescribing doses that are too small and short-lasting.”
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Hill saw that physicians and pain sufferers were caught in a punitive cycle of police and government oversight that led doctors to prescribe conservatively and sufferers to distrust those who might help them. Both groups, he argued, needed protection—doctors practiced in fear of prosecution;
people in chronic pain lived in a similar state of fear tinged with constant uncertainty. The pain field (absent training, lacking independent judgment, and deficient in specialty knowledge) had become shaped by a particular legal, political, and regulatory context of care, with “many physicians prescrib[ing] narcotics too cautiously for fear of getting in trouble with regulatory agencies that often believe ‘narcotic use is bad, no matter what the reason for their use.'”
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For Hill, legislation offered the best chance of protecting physicians from prosecution and freeing them to relieve pain without fear.

A large part of the problem, Hill argued, was that “most medical schools do a poor job training doctors to treat chronic pain.” Too few physicians understood the true relationship of aggressive relief and drug addiction, having never been educated about the low likelihood of one leading to the other. Most practiced conservatively, cautiously meting out narcotics while fearfully watching over their shoulders at regulatory agencies. Seeking pain relief in this setting, Hill insisted, was disastrous for patients: a person who was “inadequately relieved … then becomes a clock-watcher, waiting in eager anticipation for the next dose which at least will give some modicum of additional relief.” But, in turn, the often odd behavior of the undertreated clock-watcher provoked suspicion and increased surveillance—a vicious cycle. “The clock-watcher,” he noted, “is in jeopardy of being labeled a drug addict by his or her caregivers.”
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In this way, the normal behavior of seeking relief had been turned into an apparent pathology. In Hill's view, the lines between political ideology and pain relief practices had already been completely blurred—a state of affairs that had turned doctors and patients into would-be criminals.

Hill found many Texas legislators (in a state then in the midst of a sweeping party realignment) responsive to his request for political help for embattled doctors. Democrats still wielded power in the Texas legislature, but their traditional grip on power was weakening with each election. Chet Brooks, a Democrat from Pasadena, Texas, sponsored a bill drafted with Hill's involvement that sought to “prohibit hospitals and other … facilities from restricting the use of such drugs by suffering patients treated by a doctor with staff privileges.” Like-minded Democrats controlled the legislature, and Texas's Republican governor, William Clements (the first Republican elected to the governor's mansion since Reconstruction), shared their view of physicians as victims.
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Supporting the call for reform
was a particular Texas cultural ethos, a libertarian impulse on the left and right that decried regulatory barriers. (The state's Twenty-Second Congressional District had elected, only recently, the libertarian obstetrician Ron Paul to national office.) This perspective cut across party lines. Some officials in the legislature no doubt also had their own searing experiences with the undertreatment of chronic pain.

Thus was formed a medical-political alliance around the notion that pain care had become an innocent casualty in the heated “war on drugs”; the Texas legislation aimed to rescue these casualties from the battle-front. Section 5 of the Texas Intractable Pain Treatment Act (IPTA) spoke clearly to doctors' freedom to practice: “no physician may be subject to disciplinary action by the board for prescribing or administering dangerous drugs or controlled substances in the course of treatment of a person for intractable pain.” Pain, for the moment, knew no partisanship. Endorsing this freedom to practice from the national vantage point, the national AMA signed on to the Texas reform as well, publishing “Balancing the Response to Prescription Drug Abuse.” As Stratton Hill noted, even though the abuse of prescription drugs was a growing concern, the AMA's James Sammons had stated firmly that “the war on drugs should not be a war on patients.”
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In assisting passage of the 1989 legislation, Hill crossed into politics to produce a legislative reform model that doctors, patients, and legislators in other states might emulate.
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The IPTA movement was off to a promising start—defying the liberal or conservative pigeonholes of the 1980s politics of pain relief. But from the outset, it remained unclear just how much of an impact the Texas IPTA would have on the character of care. Conservative care was deeply rooted in the profession, shaped by decades of fear of drug addiction and overmedication. The law, by itself, could do little to remove these underlying reasons that doctors practiced conservatively. Physicians, for example, still lacked basic education on pain care, DEA oversight still continued, and state boards still meted out medical punishment for too-aggressive pain care; one legal development could not alter that trend.

In California, doctors and legislators watched the Texas experiment and followed suit. Legislators on the coast were driven by different political impulses. They too sought a middle road between the two feared
extremes of narcotic overmedication and pain undertreatment. But in California it was not doctors who drove reform but politicians, speaking for patients, who took charge of the debate. State Assembly representative Richard Polanco knew the topic well. His wife had suffered with chronic pain and had experienced many difficulties obtaining relief. For him and other California legislators, the threat of undertreatment demanded a legislative response. By the fall of 1990, moderate Republican governor George Deukmejian signed the state's own Intractable Pain Act, which like the Texas law had libertarian overtones and protected physicians from unwarranted intrusion by federal and state regulatory agencies in the treatment of chronic pain with federally controlled substances. But, even after the passage of California's IPTA in 1990, the legislature's concerns about undertreatment persisted.
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Still frustrated by the pace of change in 1992, another California state senator, Leroy Greene, organized hearings at the state Capitol in October of that year in response to doctors' continuing complaints that the regulatory climate had not improved. At the Greene hearings, physicians and patients insisted that the law had not altered physicians' prescribing behavior, and they still encountered problems with prescribing and obtaining controlled substances for chronic pain. The state medical board disagreed, maintaining that no such problems existed. Seeking once again to find balance between the extremes of overtreatment and undermedication, California's new Republican governor, Pete Wilson, appointed a former Republican Assembly representative, Dixon Arnett, to head a medical board studying the issues. Encouraged also by Greene, Arnett established a task force that in November 1993 acknowledged what many physicians and patients already knew—that the undertreatment of chronic pain was a much greater problem than the so-called excessive prescribing others had feared.

The fact that identically named intractable pain treatment acts had passed in states with two distinct political traditions, Texas and California, is both revealing and misleading—for pain relief had overlapping yet particular political meanings in the two places. In both states, reform was driven by common concerns among doctors and patients of undertreatment. But in California's pain politics, in contrast to Texas's libertarian suspicion of government oversight, debate was moved by the political
Left. Already by 1991, the drive for pain relief on the West Coast had a more radical edge, foreshadowing a new set of political challenges to come.

For Californians, the undertreatment concern appeared alongside another issue that lacked traction in Texas politics—physician-assisted suicide. Indeed, in 1991, the same year that Republican Pete Wilson succeeded Deukmejian as the state's governor, citizens had gone to the polls to vote on the controversial Proposition 161, Physician Assisted Suicide. Moreover (as in Washington and Oregon but unlike in Texas), California's drive for aggressive relief was also informed by popular pressure in a state where referenda and direct democracy defined the political landscape—practices for which the state had become widely known since the People's Initiative to Limit Property Taxation (tax revolt) in 1978. California's pain politics thus sat far to the political left of Texas's and much closer to Oregon—a state that was, at this moment, also voting on PAS.

In 1991, a coalition of religious groups successfully beat back the California PAS Proposition 161, spending large sums to defeat it by 54 to 46 percent. Ironically, the PAS defeat accentuated the need for compromise pain relief legislation, for, if deadly relief was not politically possible, then surely more moderate relief should be embraced. Even for opponents of physicians helping terminally ill people to die, compassionate care stopping short of euthanasia became all the more urgent to redirect the desperation of people who believed that suicide was their only answer to pain. Reforming pain care was crucial to keeping suicide off the ballot again. So it was that pain relief and PAS connected—with the two seen on the left as conjoined, as part of the fight for compassionate care and dignity in death, and the two seen as distinct on the right, with the reform of pain care understood as a way to short-circuit the popular drive for PAS. After PAS's defeat, the same group that ran the successful campaign against Proposition 161, Cavalier and Associates, now formed the California Pain Management Coalition; it was this group that now worked with Assembly representative Richard Polanco when he introduced a pain relief bill calling for a pain management committee within the attorney general's office to advise doctors on these increasingly complex pain matters.

With pain relief now a multifaceted political, legal, and moral conundrum in California, a March 1994 Los Angeles pain summit was organized with Senator Greene in attendance, along with experts from
medicine, nursing, pharmaceutical manufacturing, and law enforcement from all over the country. As in other times, politicians again took up the question of who was in pain and what relief they warranted. Through pain, Californians debated hierarchies of deservedness, the limits of social compassion, and patients' rights. Most observers agreed, for example, that the cancer patient was the most worthy of aggressive relief. The easiest political case was cancer and terminal illness, where almost everyone agreed that, in principle, addiction should never be an impediment to aggressive pain relief. But if the aggressiveness of relief should depend on the gravity of the condition, then who should judge severity? The pain summit's report, released July 1994, focused on the “rights” to be pain free—stating vaguely that patients had the right to be relieved of their pain. The summit report went even further, however, implying a doctor's duty to relieve suffering: “we should create by statute a positive legal duty for physicians to relieve pain.” These were not merely semantic distinctions but also legal recommendations. Three years earlier a North Carolina jury had paid close attention to these distinctions, awarding $15 million in damages to the family of a nursing home patient denied opioid medication who then died painfully with prostate cancer. As legal scholar Ben Rich noted, the jury concluded that the “nurse's refusal to administer the opioid analgesics necessary to relieve Mr. James's pain, on the rationale that he would become addicted, constituted a gross departure from acceptable care.” In such state settings, the question of relief (granted or denied) was being reframed as a legal question of malpractice, as a moral question of medical duty, and as a political question of patients' rights.
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