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BED OF PAIN OR QUALITY OF LIFE

"THE COURTS MUST DECIDE"


DEAR INTRACTABLE PAIN PATIENTS, FAMILIES, AND SUPPORTERS,

After long, serious contemplation, a few days ago, I asked the Los Angeles Superior Court to take over intractable pain treatment to protect physicians and patients from what I perceive to be an elitist attempt by California State agencies to put a stop to the intractable pain treatment movement. As you are well aware, physicians refuse to treat intractable pain patients due to fear of reprisals from State agencies. Those intractable pain patients who have been fortunate enough to find adequate treatment live in constant fear that their doctor will be put out of business by State agencies.

California has 2 laws which are supposed to guarantee intractable pain treatment:
1. Intractable Pain Act (1990)
2. Pain Patient's Bill of Rights (1997).

Unfortunately, the year 2000 was the year that California State Agencies seemed to attack intractable pain treatment by intimidating IP doctors in an effort to drive them out of business.

I first became alarmed when the Department of Consumer Affairs last year hired a physician "pain" consultant who worked in the prison system and did not even have a pain practice. He declared, in writing, "no multiple sclerosis or fibromyalgia patient should ever receive an opioid for pain." This same agency has walked into pharmacies unannounced without subpoenas, obtained pharmacy records apparently determining "over prescribing" on numbers alone without notification to the patient or prescribing physician that this is being done. I know of one pain physician in private practice who was severely disciplined by the Medical Board for treating a patient with opioids. This same patient was, however, freely obtaining higher opioid doses at a University Hospital clinic.

I am very disappointed that the State Medical Board appears to have reneged on their published documents stating that no physician will be charged with poor medical practice if a pain patient is treated with these guidelines:

(1) History & Physical Examination; (2) Informed Consent; (3) Treatment Plan with Objectives; (4) Consultation when Necessary; (5) Periodic Reviews; (6) Written Records; (7) Compliance with Controlled Substance Laws.

Our program and its treatment protocol not only meet, but exceed these guidelines. Despite this effort some regional Medical Board offices have been unable or unwilling to tell me whether 3 of my intractable pain patients meet these guidelines and are being treated in compliance with our laws after 6 months of repeated inquiry! This is in stark contrast to previous case reviews of some of my other intractable pain patients, who were treated by the identical clinical protocol, and found, by other regional Medical Board offices, to be in compliance.

This inconsistent application of the law between State agency offices is making it impossible to treat intractable pain patients. No California physician or IP patient can possibly have any faith in the Medical Board, until intractable pain treatment is consistently applied and all parties are in agreement as to the implementation of our pain Laws.

In my efforts over the past year to resolve these issues with California State agencies, I have heard some most amazing and depressing comments from enforcement officials who as a matter of course habitually violate the "Pain Patient's Bill of Rights". One comment made was that I and other pain doctors should have all intractable pain patients consult a psychiatrist and stop medications. Intractable pain patients can reject suggested treatments under the "Pain Patient's Bill of Rights". Some officials have claimed we are only aiding and abetting addicts. I was even accused of supplying opioids only for intentional diversion by patients or somehow rerouting drugs back to me since I must be an addict if I treated pain patients.

The worst statements, however, relate to the belief that intractable pain case reviews by State agencies are to be compared to a community standard. Peer review by State contract or consultant physicians is permissible only to the limited extent that the reviewing MD is to determine if the patient has bonafide, incurable, intractable pain and if medical necessity of high dose opioid therapy is necessary because standard, non-opioid and usual dosages have failed. If the reviewer states the patient is not intractable, they must articulate what the cure and treatment should be. This chart review for a bonafide pain specialist takes only about 10 minutes not 6 months. I also believe that the State agencies do not all know that true addiction is when opioids are taken for other than pain purposes. The use of opioids for bonafide pain is really "therapeutic dependence or addiction".

Having been involved in lobbying for the Intractable Pain Act in 1990 and the principal author of the Pain Patient's Bill of Rights1997, I know first hand of the great support these laws generated in the Legislature. The Governor at the time of the passage of these laws signed them into laws. (Deukemejian - Intractable Pain Act and Wilson - Pain Patient's Bill of Rights). Inexplicably, the current Executive branch is interpreting or misinterpreting these laws which I firmly believe violates the legislative intent of the bill.

Due to my fear that some State agencies are on a crusade to wipe out intractable pain treatment, I have filed a "Declaratory Relief" action in Los Angeles Superior Court. Although this is technically a lawsuit against California State Agencies, the practical effect is to demand that the Court interpret laws and "declare" whether our treatment complies with them. If our treatment does not measure up, the Judge is asked to tell us what we are doing wrong and provide appropriate protocols for future treatment. This is a critical and essential step to preserve treatment for intractable and hospice pain patients, because physicians and pain patients everywhere must know the parameters of legal intractable pain treatment. The ruling handed down by the Judge will apply to doctors everywhere.

I ask that all concerned parties review California's pain laws and the "Declaratory Relief" action which I have filed. Please write Honorable Judge Ronald Sohigian and lend him your insight, concern, and knowledge regarding this matter. Without question, the Judge's decision will establish the parameters for all physicians to comply with California pain laws. I have filed this Declaratory Relief action with great sorrow and regret. I have met a stonewall in attempting to get the elitist State agencies to tell me if we are in compliance with the laws or what we need to do to be in compliance. I am truly afraid that a failure to have the Courts intervene and take-over will result in thousands of intractable pain patients dying an early, miserable death and suffering in bed waiting to do so. If the Court desires I will step out of the picture so long as intractable pain patients can receive medications of the type and dose that relieves their pain. More and more persons are agi!
ng
and developing severe pain. I'm seeking Court intervention, because I will not stand back and let a few elitist State agencies deprive needy intractable pain patients of treatment which is what I truly believe will happen if the Court does not intervene and declare the parameters of our laws so physicians can practice and patients can be treated. We have the tools to give the pain patient dignity and to greatly improve their quality of life if the laws are properly used.

I'm sure you join me in wanting intractable pain patients everywhere to avoid the bed of pain and have a quality of life. Please help by writing Judge Sohigian and tell him of your concern that State agencies will deprive thousands of patients from getting adequate intractable pain care.

With gratitude,
Forest Tennant M.D., Dr. P.H.

Write to the Judge and refer to case no. BC 288765, Tennant Vs State Agencies. A handwritten letter is fine.

Honorable Ronald M. Sohigian
Judge of Superior Court
111 N. Hill - Dept. 41 - Rm. 417
Los Angeles, CA 90012
BC 288765
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