45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO HEALTH; PROVIDING FOR PATIENT RIGHTS FOR PAIN RELIEF TREATMENT; PROVIDING FOR LEGAL REMEDY FOR FRIVOLOUS ACTION OR PROSECUTION; AMENDING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of the Pain Relief Act is enacted to read:

"[NEW MATERIAL] PATIENT RIGHTS.--

A. A patient suffering from severe acute or chronic intractable pain shall have the option to request or reject the use of pain relief treatment, based upon accepted guidelines, to relieve his severe chronic intractable pain.

B. A patient who suffers as a result of failure of the physician to prescribe, order, administer or dispense controlled substances, including opioid analgesics, to relieve or modulate pain in accordance with accepted guidelines may recover damages. Damages may be recovered before or after the patient's death.

C. A health care provider treating a patient with intractable pain shall advise the patient of the available pain management therapies."

Section 2. Section 24-2D-1 NMSA 1978 (being Laws 1999, Chapter 126, Section 1) is amended to read:

"24-2D-1. SHORT TITLE.--[This act] Chapter 24, Article 2D NMSA 1978 may be cited as the "Pain Relief Act"."

Section 3. Section 24-2D-2 NMSA 1978 (being Laws 1999, Chapter 126, Section 2) is amended to read:

"24-2D-2. DEFINITIONS.--As used in the Pain Relief Act:

A. "accepted guideline" means a current care or practice guideline for pain management developed by the American pain society, the American geriatric society, the agency for health care policy, the national cancer pain initiatives or [any] other nationally recognized clinical or professional association, [a speciality] specialty society or government-sponsored agency that has developed practice or care guidelines based on original research or on review of existing research and expert opinion [whose guidelines have been accepted by the New Mexico board of medical examiners];

B. "board" means the licensing board of a health care provider;

C. "clinical expert" means a person who by reason of specialized education or substantial relevant experience in pain management has knowledge regarding current standards, practices and guidelines;

D. "disciplinary action" means [any formal] an action taken by a board against a health care provider, upon a finding of probable cause that the health care provider has engaged in conduct that violates the Medical Practice Act;

E. "health care provider" means a person licensed or otherwise authorized by law to provide health care in the ordinary course of business or practice of his profession and to have prescriptive authority within the limits of their license;

F. "intractable pain" means a state of pain, even if recurring, in which reasonable efforts to remove or remedy the cause of the pain have failed or have proven inadequate; and

G. "therapeutic purpose" means the use of pharmaceutical and non-pharmaceutical medical treatment that conforms substantially to accepted guidelines for pain management."

Section 4. Section 24-2D-3 NMSA 1978 (being Laws 1999, Chapter 126, Section 3) is amended to read:

"24-2D-3. DISCIPLINARY ACTION--EVIDENTIARY REQUIREMENTS.--

A. [No] A health care provider who prescribes, dispenses or administers medical treatment [for the purpose of relieving] to relieve intractable pain and who can demonstrate by reference to [an] accepted [guideline] guidelines that his practice substantially complies with [that guideline] those guidelines and with the standards of practice identified in [Section 4 of] the Pain Relief Act shall not be subject to disciplinary action or criminal prosecution, unless the showing of substantial compliance with [an] accepted [guideline] guidelines is rebutted by clinical expert testimony. If no currently accepted guidelines are available, then rules issued by the board may serve the function of [such] accepted guidelines for purposes of the Pain Relief Act. The board rules must conform to the intent of that act. Guidelines established primarily for purposes of coverage, payment or reimbursement do not qualify as [an] "accepted [guideline] guidelines" when offered to limit treatment options otherwise covered within the Pain Relief Act.

B. A health care provider who does not prescribe, dispense or administer medical treatment to relieve or modulate intractable pain in accordance with accepted guidelines shall be subject to mandatory disciplinary action or pain management education.

[B. In the event that a] C. If disciplinary action or criminal prosecution is pursued, the board or prosecutor shall produce clinical expert testimony supporting the finding or charge of violation of disciplinary standards or other legal requirements on the part of the health care provider. A showing of substantial compliance with [an] accepted [guideline] guidelines can only be rebutted by clinical expert testimony.

D. If a health care provider substantially prevails in an action brought by an agency in court or before a board, and the state based any portion of its action upon the health care provider's inappropriate prescription of medication to relieve pain, the health care provider shall be awarded all costs of the action and all reasonable attorney fees incurred as a result of the action. An award pursuant to this subsection shall be made by the court in the process of hearing the underlying case or, in the case of an action brought before a board, in a separate action naming the agency as respondent.

[C.] E. The provisions of this section shall apply to health care providers in the treatment of all patients for intractable pain, regardless of the patients' prior or current chemical dependency or addiction. The board may develop and issue rules establishing standards and procedures for the application of the Pain Relief Act to the care and treatment of chemically dependent individuals."

Section 5. Section 24-2D-4 NMSA 1978 (being Laws 1999, Chapter 126, Section 4) is amended to read:

"24-2D-4. DISCIPLINARY ACTION--PROHIBITIONS.--Nothing in the Pain Relief Act shall prohibit discipline or prosecution of a health care provider for:

A. failing to maintain complete, accurate and current records documenting the physical examination and medical history of the patient, the basis for the clinical diagnosis of the patient and the treatment plan for the patient;

B. writing false or fictitious prescriptions for controlled substances scheduled in the federal [Comprehensive Drug Abuse Prevention and Control Act of 1970, or Sections 26-1-23 and 30-31-18 NMSA 1978] Controlled Substances Act, the New Mexico Drug, Device and Cosmetic Act or the state Controlled Substances Act;

C. prescribing, administering or dispensing pharmaceuticals in violation of the provisions of the federal [Comprehensive Drug Abuse Prevention and Control Act of 1970, or Sections 26-1-23 and 30-31-18 NMSA 1978] Controlled Substances Act, the New Mexico Drug, Device and Cosmetic Act or the state Controlled Substances Act; or

D. diverting medications prescribed for a patient to the provider's personal use or to other persons."

Section 6. Section 24-2D-5 NMSA 1978 (being Laws 1999, Chapter 126, Section 5) is amended to read:

"24-2D-5. NOTIFICATION.--The board shall make reasonable efforts to notify health care providers under its jurisdiction of the existence of the Pain Relief Act and inform [any] a health care provider investigated in relation to the provider's practices in the management of pain of the existence of that act."