Last updated: Fri, Aug 16, 2024
The political pendulum swung back and Bill Clinton was elected President in 1992. Pain associated with end-of-life suffering became a political issue in this decade. "Dr. Death," Michigan pathologist Dr. Jack Kevorkian, assisted at least fifty-five terminally-ill people to commit suicide. Dr. Kevorkian considered himself to be on a mission of mercy, demonstrating compassionate relief for end-of-life suffering. He was acquitted in three separate jury trials where he pled compassion as his motivation. He was finally convicted in a fourth trial for murder based on a death that occurred after his medical license had been revoked. He defended himself and was not allowed to use his defence of compassionate pain relief.
Kevorkian was only the most conspicuous of a number of doctors who moved questions of end-of-life suffering into the public eye during this period. Dr. Stratton Hill, a physician at a leading Texas cancer center, approached his state legislature with the claim that oversight by police and other government agencies discouraged doctors from providing medically adequate end-of-life pain relief. High levels of narcotic pain relief necessarily have a double effect, reducing pain but also often hastening death and putting the doctor on the horns of a dilemma. In addition, he claimed, few doctors were well-informed about pain and pain relief, and a conservative bias (that is, a bias to limit pain treatment) permeated the medical establishment. There was, he claimed, a widespread lack of understanding within his profession about the relation between addiction and narcotics use in chronic pain. Dr. Hill proposed that medical doctors must be sheltered from official sanction if end-of-life palliation were to be improved.1
[a patient who is] inadequately relieved...then becomes a clock-watcher, waiting in eager anticipation for the next dose which at least will give some modicum of additional reflief...The clock-watcher is in jeopardy of being labeled a drug addict by his or her caregivers.2
The Texas legislature passed, and the governor signed, the Texas Intractable Care Treatment Act in 1989. The Act stated that no physician may be subject to disciplinary action by the [state medical] board for prescribing or administering dangerous drugs or controlled substances in the course of treatment of a person for intractable pain.
The AMA endorsed the Texas effort.3 California enacted a similar law in 1990.
About the same time, efforts were made in several states to legalize physician-assisted suicide as an alternative or additional way to deal with untreatable pain at the end of life. A bill to legalize physician-assisted suicide was put on the California ballot by referendum in 1991. That act failed. A few years later an assisted-suicide bill was passed in Oregon with support from Oregon's governor Dr. John Kitzhaber. The act was later confirmed by referendum.
With issues surrounding pain still unresolved, a national "pain summit" was held in California in 1994 and included politicians, law enforcement, and of course medical experts. The thrust of the summit seems to have been a perceived need to improve the availability of pain control. A summit report was issued that asserted that patients had a "right" to pain relief and recommended that laws should be passed to make pain relief a positive duty for physicians.4
At the same time these things were happening, doctors who freely prescribed narcotic pain medicines were being prosecuted by law enforcement and sanctioned by their medical boards. At least one of these doctors tried to defend himself on the basis of compassion and enlightened medical practive. Dr. William Hurwitz, who practiced in the District of Columbia, was arrested by the DEA in 1991. Dr. Hurwitz had prescribed 500 mg per day of oxycodone to at least one patient who suffered from deterioration of his/her hip bone. (Fifteen mg per day would be a normal dose for a patient starting narcotic use.) The doctor claimed this dosage was needed because of the habituation or tolerance of the patient to the drug, while the DEA claimed that such a high dosage could only be useful for recreation.5
Dr. Hurwitz's criticisms of his treatment by law enforcement and his medical board were more ascerbic, yet similar to the criticisms discussed in Texas and California. He remarked about his encounter with his medical board:
This was not anything close to an open-minded search for the truth in which legal adversaries present evidence before an impartial finder-of-fact. This Board thought it knew from the outset what constituted proper pain management, and it thought it knew that the high doses of medication I prescribed to many of my patients were illegitimate and without clinical rationale.6
Dr. Hurwitz echoed Texan Dr. Stratton Hill about the social and legal environment of pain treatment:
[Patients] were treated like addicts and criminals. They were stigmatized, insulted, neglected and abandoned. [They were] betrayed by the whole medical profession with the refrain, 'I would like to help you, but I can't. I don't want to lose my license.' ....[W]ho can blame the doctors, who are themselves the victims of the thuggish drug-control police and the heartless and mindless bureaucrats who serve on boards of medicine7
Strident and perhaps defensive, Dr. Hurwitz's misgivings about the competence of medical boards in this practice area are supported by surveys and studies done at the time, which showed limited understanding of the difference among concepts like drug tolerance, drug dependence, and drug addiction and with legal self-protection foremost in their minds rather than patient care.
8 A survey of 627 medical board members in 2002 found that while most respondents agreed that the prescribing of opioids for the cancer patient was legal and generally acceptable medical practice, only 12 percent were confident in the legality of prescribing for the patient with chronic non-cancer pain; the majority of respondents (77 percent) would discourage this practice or even investigate it as a violation of law.
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While pain relief for non-terminal patients was controversial, Oregon's physician-assisted suicide was a more urgent issue for some in the federal capital. In 1999 the Hyde-Nickles bill proposed that the DEA should set standards as to the "legitimate medical purpose" for federally-regulated drugs and that the physician's intent in prescribing should be subject to federal oversight. This bill failed. (It was endorsed by the national AMA, but opposed by many state medical associations.) Not content with this outcome, John Ashcroft, Attorney General for George W. Bush, in 2001 proposed a federal rule that would put the supervision of the nation's doctors in the hands of the federal Justice Department. This attempt was rejected by the Supreme Court finally in 2006. This decision had the ironic effect of potentially providing legal access to medically-assisted suicide (where permitted by state law), while no established law guaranteed a right to pain relief during the course of life, regardless of the degree of suffering.10
Keith Wailoo summarized this debate of the 1990s:
In this 1990s politics of pain, here was a final irony: for many people living and coping with chronic pain (people who are neither dying nor yet to be born), the era's stark polarization of the pain debate focusing on "fetal pain" on the one hand or "death with dignity" on the other distracted attention from their own struggle. The politics of pain had not only polarized but also warped the landscape of pain care, further complicating their own hopes for relief.11