“The physician has always been Pain
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held to these standards under [Chap- ter] 170, and we added a couple,” Ms. Robinson said. “But the ones that were there, they’ve always been held to those.” Others see more of an impact in the
board’s should-to-must language shift. Dr. Mehta, who reviewed the rules
for the Committee on Patient-Phy- sician Advocacy, says one example is the way the amendments affect the in- terpretation of a rule that now states, “The physician must refer a patient with chronic pain for further evalua- tion and treatment as necessary.” Dr. Mehta says that amendment is
the most alarming change for primary care physicians. He notes many coun- ties in Texas don’t have access to cer- tain specialists, and he adds the rule doesn’t leave enough flexibility for doctors who believe they’re already doing an adequate and appropriate job of pain management. “That’s a pretty big push to say that
you’ve got to send somebody off to a specialist when there may not even be a specialist available,” Dr. Mehta said. The word “must” also tightens a
physician’s requirements for docu- menting the patient’s history and the doctor’s rationale for treatment. The rule now says a doctor must, rather than “should,” document a six-part list of information pertaining to the patient’s case. That list includes the nature and intensity of the pain, the effect of the pain on the patient’s physical and psychological function, and any history of and potential for substance abuse. The amendment also requires the physician to include a patient’s history of and potential for substance diversion.
LIABILITY CONCERNS Dr. Mehta says the documentation burden the new rules impose not only is too heavy but also leaves physicians open to potential liability. As an ex- ample, he points to the amendment on informed consent. That rule now re- quires a physician’s discussion of risks
52 TEXAS MEDICINE September 2015
and benefits for a treatment plan to include an explanation of seven items, including anticipated therapeutic re- sults, therapies available other than drug therapy, and potential side ef- fects and how to manage them. Dr. Mehta worries that a patient
who overdoses or becomes addicted to a drug could sue a physician if the record doesn’t document that the doc- tor discussed every single side effect listed for every opioid prescribed. The rule tightens documentation
requirements some more. It stipulates that in documenting the physician’s rationale for the patient’s treatment plan and prescriptions, the patient’s medical record “must” include a list of 10 items. (See “Pain Management
‘Musts,’” opposite page). “The rules no longer would say
they must simply demonstrate sound clinical judgment and rationale … now you’ve got to be very detailed, and the rules almost dictate the nature of how you’re going to practice that pain management and how you’re going to use specifically that class of medica- tion,” Dr. Mehta said. “That’s where it becomes fairly alarming — that the rules would get that prescriptive … as to what must be documented in the record and minimum requirements. “[Those are] things that would open
us as physicians up to lot of legal chal- lenges or legal concerns with respect to licensure or risk of loss of license if you’re in violation of that for any one record. Because there are so many items that they specify in the case of chronic pain,” he added. Austin attorney Michael Sharp
agrees that changing the guidelines to requirements opens physicians up to potential liability. “I think that making it required — a
failure to do it would first of all be a violation [with] the board,” he said.
“And, secondly, now that it is a rule, I think a plaintiff could try to make a case against a doctor who had not completed all the required actions, and that’s scary.” But Garland pain management spe-
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