The Devil’s in the Details
The “Numbered Comments” below correspond to the Numbered Paragraphs of the Sample Compilation Pain Medicine Agreement which is posted below in “bite-sized” chunks for ease of reference. My Contract Comments are intended strictly to point out to patients who must sign these Agreements that many of the seemingly inconsequential first-appearing Patient Paragraphs contain subtle “physician termination triggers” which can be used by the physician to end the relationship with the patient pursuant to over-broad or completely physician-subjective patient compliance standards. These Patient Paragraphs which LOOK straight-forward also too often contain subtle but patently unreasonably strict and/or vague terms and conditions with which the patient must comply or be terminated and condemned to eternal Pain Management perdition.
Accordingly, the “devil’s most assuredly in the details” in these Pain Medication Agreements and too often the practical effect is a resulting Agreement which can be terminated by the physician “at will” [i.e., whenever he or she desires to do so]. This resulting potentially unstable Doctor-Patient relationship is contrary to the patient’s understanding that he or she is engaging the Pain Management physician to help improve his or her “quality of life” and entering into a Pain Medication Agreement to simply secure and document the specifics of the Doctor-Patient relationship; which in the medical specialty of Pain Management, are based on mutual candor, communication and trust. In this regard, patients typically believe this Agreement can only be breached by patients if they violate a material term or condition of the Agreement which is specifically drafted to account for the unusually harsh consequences to the physician of a pernicious patient. Therefore, patients should always read these Pain Medication Agreements carefully to ensure they understand what is expected of them and they should always retain a copy of the signed Agreement as the ultimate accurate reference material regarding the various terms and conditions and other standards with which they must comply or meet.
Public’s Interest in preventing Prescription Painkiller Abuse
In a normal situation where both parties to an agreement have equal bargaining power such that neither has “leverage” over the other, the comments below would be drafted by attorneys and communicated to one another with the intention of modifying the agreement to be objectively fairer and less 1-sided. But with these Pain Medication Agreements, the public’s interest in preventing well-publicized prescription painkiller overdoses and numerous instances of patients becoming addicted to prescription painkillers has all but negated the patient’s ability to make any significant changes to the Agreement due to the substantial legal and ethical consequences these physicians face when the narcotic drugs they prescribe to chronic pain patients are used incorrectly or illegally by untruthful, irresponsible, disrespectful, devious or criminal people posing as legitimate chronic pain patients.
Learning Practice policies which are NOT written in the Pain Medication Agreement
Given the practical realities mentioned above, I wouldn’t send these comments below to the Pain Management physician. Instead, I would think about them and highlight the most important ones and then discuss them with the physician before signing the Agreement so that I could gauge why the physician has these de facto termination clauses hidden in various parts of the Agreement. More specifically, as a patient, I would want to know, to the extent possible, if the physician has taken advantage of the 1-sided Pain Medication Agreement to interpret even the slightest suspicion of a patient breach of the Agreement as justification to terminate it, or, if the physician has a more reasonable track record and understands that the structure of this particular Doctor-Patient relationship is unusually very important to both parties and requires ease of communication and mutual trust so the patient can rely upon a secure relationship to improve his or her quality of life knowing the Agreement will only be terminated when it has actually been breached. There is a nuance to the tone of this discussion but the objective is for patients to learn as much as possible about a Pain Management Practice which is not evident from the Agreement they must sign to be treated there. These brief discussions also reveal important personality traits about both physicians and patients and it is this type of information patients need in order to determine if the Pain Management Practice is the “right” one for them.
What Can Go Wrong for Patients w/ Pain Medication Agreements
As a Patient Advocate, I have seen too many instances of patients being terminated from Pain Management Practices based on mere suspicion when the physician chose to error on the side of caution instead of simply talking to the patient to learn the truth. I have also seen too many patients terminated from Pain Management Practices because of petty misunderstandings and personality conflicts with physicians couched as patient breaches of the Agreement, when each of which could have been easily avoided had the Practice’s or physician’s communication policy been more reasonable and the physician more accessible. In that regard, I think patients should keep these possibilities in their minds and discuss them with prospective Pain Management physicians before signing any Pain Medication Agreement.
Post-Termination Clause to prevent Patient Narcotic Withdrawal
A “concept” which should be discussed between physicians and patients prior to signing the Agreement, and then specifically codified in the Agreement as agreed upon, pertains to the inclusion of a reasonable Post-Termination – Pain Management Prescription Drug Treatment Plan for terminated patients who’ve developed a legitimate, “medical dependence” on prescription narcotics so that shortly after an abrupt termination the patient doesn’t go into “Narcotic Withdrawal.” Such a terminated patient would likely be immediately seeking a new Pain Management doctor but that is difficult to do when the patient is going through the visible signs of Narcotic Withdrawal. Moreover, a patient abruptly terminated from a Pain Management Practice such that he or she would then experience Narcotic Withdrawal and could be seriously suffering physically, mentally and emotionally seems to be an unreasonable “punishment” for breaching an agreement regarding his or her medical care. Obviously, there should be criminal, irresponsible and disrespectful patient exceptions to this Post-Termination consideration and I would suggest generally deferring to the physician to suggest what he or she thinks is reasonable. That said, this is the one provision I would respectfully insist be included in the Agreement because terminations happen and the result can be a terrified patient incapable of helping him or herself.
As I did my research for this Post, I was shocked at how many standard Pain Medication Agreements made no mention of addressing the patient’s legitimate “medical dependence” on prescription narcotics during the 30-60 days immediately following the termination. I reference a 30-60 day time period because I think that is a reasonable estimation of the time it would take such a patient to engage with a new Pain Management physician. Just like I completely understand the need for these Pain Medication Agreements to comprehensively protect physicians from unscrupulous patients, I think it’s unreasonable for physicians to disregard the serious and seemingly punitive medical repercussions for such a patient medically dependent upon prescription narcotics after an abrupt termination of this Agreement.
Patient Paragraph Section
Paragraph 1 – This clause is perfectly reasonable. (A “patient tip” is to always be building a “file” of your chronic medical condition to document both your history taking prescription narcotic pain medications and your need for a Pain Management doctor, should that ever be necessary to prove, by getting in the habit after the beginning of each calendar year of asking the pharmacy which fills your narcotic prescriptions to give you a computer print-out of all narcotic drugs dispensed to you during the previous calendar year.)
Paragraph 2 – This clause is questionable. A patient would not want to agree to this, as written, because he or she would want prior written notice that a law enforcement agency is investigating before granting such a broad authorization granting unfettered access to his or her medical records to afford the patient some time to clarify what could be a simple case of mistaken identity or to prove identity theft, each of which could be cleared up within a few days’ of prior reasonable notice of any such investigation. Additionally, “possible misuse, sale or diversion of his or her pain medication” is too vague and low of a standard to trigger a law enforcement agency investigation during which the patient should voluntarily waive his or her right to privacy and voluntarily surrender open access to his or her medical records.
Paragraph 3 – This clause is possibly worrisome. It is certainly the patient’s responsibility to make sure he or she doesn’t run out of pain medication prior to the next scheduled monthly appointment because if the patient takes the medication as prescribed, there should be enough of it to get the patient to the next scheduled monthly appointment with the doctor. But with some diseases and conditions such as Crohn’s Disease, unexpected severe flare-ups could deplete the patient’s amount of monthly pain medication such that he or she will need more of it during that particular month. But in this Agreement clause, the Pain Management physician is disavowing responsibility for helping the patient in case he or she is in such a difficult and unusual medical situation and that difficult situation requires the physician to help the patient on a weekend or a holiday. That said, it is certainly a “red flag” if the patient continually exceeds the agreed-upon monthly allotment of pain medication, but provided the patient responsibly communicates to the physician the timely change in the frequency and intensity of pain, isn’t this type of contemplated difficult medical situation why the patient is hiring a Pain Management physician?
Paragraph 4 – This clause is possibly worrisome. I reiterate many of the same points I made regarding Paragraph 3 above and apply them here. The language pertaining to the patient consequences from not keeping an appointment or canceling an appointment without complying with very specific notice provisions is rigid, unnecessarily “absolute” and potentially an Agreement termination trigger for the physician. For example, it is possible the patient might fall off a ladder and fracture his or her back (as has recently happened to me) and thus be unable to attend his next scheduled monthly appointment, but as proscribed by this language, that patient will be punished by not being given his next month’s medication refill simply for having the bad luck of sustaining disabling injuries from accidentally falling off a ladder and sustaining such serious injuries they prevented him from keeping and attending an appointment. You’d think these “penalties” would be waived if the patient reasonably and timely accounted for such accidents or unexpected intense flare-ups of his disease preventing him from keeping an appointment but there is no such wiggle room in this Agreement. Additionally, “may constitute grounds for immediate termination …” [emphasis added] is vague and meaningless to the patient as a standard. It means the Pain Management Practice can do whatever it wants in such a scenario. The rigidity of this type of language would make me think this Pain Management Practice is not a good fit for me.
Paragraph 5 - The Random Drug Testing clause is perfectly fine. I’d only ask that it be written into the Agreement that the Pain Management Practice pays for the cost of this Random Drug Test since as a patient I have never had to pay for this test. If it is the Practice’s policy to have patients pay for the Random Drug Test, they should indicate its cost in the Agreement. The first part of this Paragraph seems wholly inappropriate for this type of Agreement and is completely unacceptable because its language undercuts the mutual trust necessary for a productive and successful relationship between the Pain Management physician and patient. More specifically, when patients see a Pain Management physician, they are entrusting them with the sole reasonable power to help them manage their pain and improve the quality of their lives. But this language seems to empower the physician to do anything he or she wants and removes any obligation from the physician to help the patient achieve his or her aforementioned objective. To that end, this clause seems to imply a disrespect of patients with chronic pain and complex pain issues.
Paragraph 6 - The absolute nature of this clause is concerning because I have seen other Pain Medication Agreements which essentially say the same thing with the exception that stolen medication would be replaced ONE TIME ONLY and ONLY IF a reasonably satisfactory Police Report was supplied to the Practice in a timely manner. Again, in combination with some of the other “absolute” clauses in this Agreement, this is probably the wrong Pain Management Practice for me.
Paragraph 7 – This clause is perfectly reasonable. If I lived in a state where medicinal marijuana was legal, I would want to specifically exclude that “drug” in case my doctor and I decided we were going to try it at some point because many Crohn’s Disease patients tell me it helps them with pain. But, I would never “indulge” without first asking my Pain Management doctor if it was safe given the other drugs I was taking and I received his prior written permission to do so.
Paragraph 8 - This clause is perfectly reasonable. Same comment as in Paragraph 5 (i.e., I would want language indicating that the Practice pays for the drug test, etc.). Please notice how the language used in this Paragraph 8 is more respectful of the patient than the wording about the same exact issue in Paragraph 5. This is because the two (2) clauses are from different Pain Management Practice Agreements. In that regard, I might infer from repeated instances of such stark differences that the Practice which uses Paragraph 8-like language to communicate the Random Drug Testing seems to be more reasonable and likely more consistently operated on a mutual trust principle. I would prefer such a Pain Management Practice.
Paragraph 9 - This clause is perfectly reasonable. I would only ask what type of “Notice” communication this Practice prefers (i.e., fax, email, etc.) because I would want them to get my Notice message and I also would want to use some type of communication medium which can provide me with a Confirmation Notice just to prove I complied with the Agreement. The only other issue I could see with this Paragraph is ensuring the appropriate prescribing of narcotic cough medication is not in violation of this clause. This is applicable if the patient knows beforehand the specific cough medication his Pulmonologist prescribes a few times a year for a serious lung disease or if the patient gets a severe case of Bronchitis and is prescribed the same type of cough medication. To avoid confusion, I would discuss this with the doctor before signing the Agreement and if I knew which cough medication I was routinely prescribed, I would list it on an Exhibit and have it attached to this Agreement. Regardless, I still would provide Notice to the doctor under this clause anytime I was prescribed the cough medication. I just would prefer they are aware of it in case I got so sick that I missed the “next business day” deadline because when my lung problem acts up, I tend to sleep a great deal.
Paragraph 10 – The 1st sentence of this clause is perfectly reasonable. The 2nd sentence, however, is very important information for the patient to be aware of but which should have been discussed by the patient and doctor at some point in the initial “non-prescribing” “consultation/mutual evaluation.” In any event, including more “and may be reasons for the doctor to discontinue prescribing to me” language does nothing but add more “grey” area to the physician’s sole discretion to discontinue prescribing a certain pain medication and that would concern me if this type of language were a pattern in the entire Agreement.
Paragraph 11 – This clause is a good example of the “grey” area I was referring to in Paragraph 10 above because this Paragraph clearly obligates the patient to attend “required follow-up visits with the doctor” but it doesn’t identify the frequency of these “required follow-up visits with the doctor” nor where they will be located, yet, failure to do so results in the discontinuation of this treatment. There is also no mention of an acceptable excuse for not being able to attend nor is there language which explains how the patient is to notify the doctor in case he or she cannot attend these follow-up visits. The 2nd sentence of this Paragraph obligates the patient “to participate in other chronic pain treatment modalities recommended by the doctor” but it does not provide even a clue as to what these other treatment modalities may be. Is this clause requiring the patient to participate in acupuncture, and if so, for how long? Is this clause requiring the patient to participate in an “ayahuasca” medical trip to the Amazon jungle? The vagueness of this clause conceivably provides the doctor with additional reasons to terminate this Agreement and since Pain Management is a major life priority for these patients, I think it is disrespectful to make them feel so insecure. To that end, I would respectfully ask for a reasonable explanation of the issues above and then have them clarified in the Agreement, provided they place no more than a reasonable burden on the patient.
Paragraph 12 – This clause is inappropriate and unnecessary because by providing the doctor with the sole and subjective power to refer the patient to a drug treatment program merely because the doctor “suspects” the patient is becoming addicted to the prescribed pain medication, the physician has created another termination trigger to utilize if the patient reasonably disagrees and refuses to seek “help” at such a program. Moreover, the language in this clause obliterates the mutual trust which must exist between a Pain Management physician and a patient for their relationship to be productive and successful.
In more practical terms, if this clause were in an agreement between a client and his or her hairstylist, it would read as follows:
“I understand that there is a small risk that I will be unhappy with my new haircut such that those people close to me will tell me to my face that it sucks. This means that I might become deeply disturbed by the haircut, blame it for getting angry at everything that bothers me in life, or I will be unable to control just how angry I become as a result of this new haircut. If this occurs, my hairstylist will never cut or style my hair in the same manner and my hairstylist will refer me to a ‘haircut anger management program’ for help with this anger problem.”
More seriously, based on my experience taking different narcotics for different pain issues at different stages of severity during my 30-year battle with Crohn’s Disease, my Pain Management doctors always listened to me and watched me very closely to determine whether I was ever addicted to a pain medication drug. In that regard, if my doctor sensed or thought it possible I was using a drug for any reason other than to control my pain or that I couldn’t control my use of the drug, we would discuss any such observations and, if necessary, I was switched to a different drug. There were never any conclusions verbally made about me or my overall pain management care nor did I ever acknowledge any such addiction. I simply trusted my doctor and never wanted to become addicted to a particular pain medication so I tried whatever was suggested by my doctor to control my pain.
If I knew my Pain Management doctor was contractually obligated to refer me to a “drug treatment program” based solely on his or her unilateral suspicion of some vague and subjective definition of “addiction,” I would never trust them and therefore would never consider such doctors to help me manage my pain. In this Agreement, it appears from this clause that the doctor will always error on the side of assuming the patient is guilty and thus addicted to a particular drug, and short of some reckless, irresponsible or criminal patient behavior, I would expect more trust from my Pain Management doctor. Accordingly, I would respectfully confront the doctor who expected me to sign an agreement containing this clause and ask why I should trust him or her when to join their Pain Management Practice I must sign away my right to self-preservation?
Paragraph 13 – The 1st sentence of this clause is generally reasonable although I would discuss the same concerns set forth above in Paragraph 3 regarding a month or two (2) of pain emergencies or of particularly severe flare-ups during which additional medication might be needed by the patient. The 2nd sentence is another example of a Pain Management doctor wanting another vague reason to terminate his relationship with a patient. To that end, what exactly is meant by the phrase, “[a]ny signs of misuse of the medication …”? What are “signs of misuse”? Are they objective or subjective “signs”? Can the patient quickly appeal a decision of “misuse,” especially when it now provides “reason” for the doctor to terminate the Agreement? Is that appeal process reasonable?
The 2nd sentence should be a very serious concern because people who become lifetime patients with chronic pain typically go through so many difficult emotional experiences, sometimes just to even get the correct diagnosis after YEARS of being mistreated and misdiagnosed, that having to worry about their Pain Management doctor surprising them one day with this clause and terminating their relationship is an added amount of stress which does not belong in this Doctor-Patient relationship. I would respectfully articulate this to the doctor and ask why it seems he or she needs a “disguised out” in almost every contractual clause of the Agreement and yet the patient cannot hold the doctor accountable to anything in the Agreement?
Paragraph 14 – Other than the part of this “Catch-All” termination clause which prohibits the patient from obtaining pain medication from anyone else other than this doctor, the rest of the Paragraph seems inappropriate to be included in this type of Agreement because it seems to presume the doctor is using only one (1) pain medication to help the patient and when that stops working or it presents a danger to the patient or “the doctor believes the patient is no longer a good candidate to continue the medication” (???), any member of the doctor’s medical staff can terminate the Agreement.
Call me crazy, but, isn’t it the Pain Management doctor’s JOB to use the right drug OR Treatment Method to treat a patient’s pain? In that regard, isn’t it possible, and likely probable, that the patient’s medical circumstances will change over time such that the doctor will need to try different drugs or techniques such as epidural injections, trigger point injections, acupuncture, etc. to achieve the patient’s consistent primary objective of reasonably managing his or her pain? Therefore, why is the patient’s apparent evidentiary reasonably non-therapeutic response to a particular pain medication or the doctor’s subjective belief that the patient is no longer a good candidate to continue a certain pain medication grounds for ANYONE on the Practice’s medical staff to terminate this Agreement? I would never let a Pain Management doctor treat me who asked me to sign a Pain Medication Agreement with this clause in it. However, I sure would be curious why this clause is in the Agreement.
“My Physician will cancel my contract:” – Section
Paragraph 1 - This clause is perfectly reasonable.
Paragraph 2 - The vague or non-existent medication storage standard makes this clause, at best, worrisome, and at worst, ridiculous. Is this doctor planning a house inspection of the patient’s home to determine how he or she is storing the pain medications? I am joking; no, I am actually mocking the incredibly vague language used in this clause. But, more seriously, when failure of the patient to comply with this clause grants the physician the power to cancel this Agreement, I fear we are not far away from surprise home inspections of people with chronic pain who take prescription narcotics so they can alleviate their suffering just enough to have some semblance of a quality of life. In fact, I would even ask the doctor if that is what this clause means. I would understand if it listed a “consequence” of failing to properly store the medication as the termination trigger. But, by itself, this clause is another ambiguous and possibly ridiculously intrusive example of Pain Management doctors having no bounds to their feelings of entitlement to protect themselves from chronic pain patients who conceivably could place them at professional risk.
Paragraph 3 - This clause is perfectly reasonable BUT without a reasonable and timely “appeal mechanism” in the Agreement, this could be one person’s word against the patient and then an honest mistake or a person’s bizarre vendetta against the patient could abruptly terminate the Agreement and cause the terminated patient to go into Narcotic Withdrawal.
Paragraph 4 - This clause is perfectly reasonable provided the patient is made aware that the drugs he or she obtains from other specialty doctors for pre-existing, provable medical conditions do not have stimulant or anti-anxiety effects. I mention this because many patients with chronic pain have autoimmune diseases and thus they have medical problems which require treatment by doctors in a variety of medical specialties. To that end, I think it is fair to assume everyone knows what is, and what isn’t, a pain medication, but some drugs prescribed by a patient’s pulmonologist or urologist, for example, might have off-label effects which could be in violation of this clause. Accordingly, I would respectfully discuss this with the doctor and mention every drug typically prescribed to me by these different medical specialists and then codify the doctor’s observations in the Agreement by way of an Exhibit so that I’m not at risk of being terminated by my Pain Management doctor for taking a necessary drug for my lungs which happens to have a stimulant side effect.
Paragraph 5 - This clause seems inappropriate for this type of Agreement. Similar to my comments to Paragraph 14 above, I don’t understand why a patient’s significant side effects to a pain medication would cause a physician to terminate this Agreement when there are so many other safe and effective pain medications for the doctor to choose from to treat that particular patient’s pain such that it is merely a question of finding the drug best suited to safely treat or reasonably control a patient’s pain. If a Pain Management physician is unwilling to treat a patient’s chronic pain problem by taking the time to find the appropriate pain medication which works best without significant side effects to that particular patient, I wouldn’t want to be treated by this physician.
Paragraph 6 - This is too vague of a standard. Sometimes, “life” happens and appointments must be changed or rescheduled. I would certainly understand the implementation of a Cancellation Policy but as written, I have no idea what that means.
Paragraph 7 - This Catch-all clause must be deleted because it wreaks of being drafted by a sloppy business attorney who is basically saying, “If I forgot anything, this catch-all clause will cover it.” It won’t. Clauses like this belong in Asset Sale Agreements and not in agreements which serve as devising the structure of a mutually-trusting Doctor-Patient relationship.
“Upon Cancellation of my Contract:” – Section
Paragraph 1 - This clause is minimally reasonable BUT the phrase “will either stop or taper me off my medication as necessary to avoid withdrawal symptoms” is essentially meaningless because “as necessary” is going to be determined solely by the physician and he or she will likely not be in a benevolent mood in the instance of Cancellation. Instead, I would suggest that the physician make the decision for the question contemplated in this clause only on strict medical grounds depending upon the duration and dose of the cancelled patient’s narcotic pain medication history. If the physician decides a taper schedule is necessary for the patient to avoid withdrawal symptoms, it also should be devised on strict medical grounds depending upon the duration and dose of the cancelled patient’s narcotic pain medication history. Ideally, I would also suggest the taper be for sixty (60) days or two (2) months to afford the patient a reasonable amount of time to engage a new Pain Management Physician.
For these (and other) reasons, it is imperative that Pain Management patients keep accurate records of the duration and dose of all narcotic pain medications they have taken both prior to being treated by this physician and during this Agreement.
Paragraph 2 - This clause seems reasonable because it is innocuous in that it is just indicating that a drug-dependence treatment program “may” be recommended. However, such a “recommended” notation may become a permanent part of the patient’s medical records and THAT is problematic because then this clause, as written, implies that the “Cancelled” patient needs drug-dependence counseling or detox when the Agreement, as presently written, could have been terminated or cancelled for reasons that have nothing to do with the patient having an addiction problem. Therefore, I would respectfully discuss this with the doctor and ask that it be removed or reworded with the above in mind.
Paragraph 3 - This clause seems reasonable. This is a difficult Paragraph to codify because it is very kind of the terminating physician to assume a contractual obligation to refer the terminated patient to another Pain Management Practice. Therefore, I think patients would be better served by suggesting contractual language which establishes a reasonable “Post-Termination Pain Medication Treatment Plan” to avoid going through Narcotic Withdrawal.
(In Part 3 of 3, my next – MUCH SHORTER – Blog Post, I will share some Patient Tips, for example, on how to always be prepared to find a new Pain Management Doctor should your Pain Medication Agreement be terminated abruptly, you choose to terminate it, your doctor retires, you relocate to another state or your health insurance changes and you can no longer afford to see your current Pain Management Physician.)