H.B. 4058
(By Mr. Speaker, Mr. Kiss, and Delegates Douglas, Staton,
Ashley and Trump)
[Introduced January 22, 1998; referred to the Committee on the
Judiciary. ]
A BILL to amend chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article three-a, relating
to limiting disciplinary actions against certain health
professionals prescribing, administering or dispensing
controlled substances in the management of intractable pain.
Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding a new article, designated article three-a, all to read as
follows:
ARTICLE 3A. MANAGEMENT OF INTRACTABLE PAIN
§30-3A-1. Purpose.
It is the purpose of this article to permit health
professionals to provide quality pain management for suffering
patients diagnosed with intractable pain, without fear of
disciplinary action by the applicable professional licensing board.
§30-3A-2. Definitions.
As used in this article, unless the context clearly
requires a different meaning:
(a) "Board" or "applicable board" means the West Virginia
board of medicine or the West Virginia board of osteopathy, or
the applicable board authorized by state law to govern the
licensure and professional discipline of a physician authorized
to practice medicine and surgery in this state.
(b) "Intractable pain" means a pain state in which the
cause of the pain cannot be removed and in which, in the
generally accepted course of medical practice, either (1) no
effective relief or cure of the cause of the pain is possible or
(2) none has been found after reasonable efforts in accordance
with accepted medical standards.
(c) "Physician" means a physician licensed in the state
of West Virginia by virtue of article three or article fourteen
of this chapter.
(d) "Pain-relieving controlled substance" includes but is
not limited to an opioid or other drug classified as a schedule
II controlled substance and recognized as effective for pain
relief, and excludes any drug that has no accepted medical use in
the United States or lacks accepted safety for use in treatment
under medical supervision, including but not limited to any drug
classified as a schedule I controlled substance.
§30-3A-3. Limitation on disciplinary actions related to management of intractable pain.
(a) Prescription of pain relieving controlled substances--
No physician shall be subject to disciplinary action by the
applicable board by authority of article three or article
fourteen of this chapter, or any administrative rule or guideline
issued thereunder, for prescribing or administering pain
relieving controlled substances, even in excess of average
dosages, in conformity with subsections (b), (c) or (d) of this
section.
(b) Intractable pain of dying patients--- A physician who
discharges his or her professional obligation to relieve the pain
and suffering and promote the dignity and autonomy of dying
patients in his or her care, and in so doing, exceeds the average
dosage of a pain relieving controlled substance, does not violate
article three or article fourteen of this chapter.
(c) Cancer-related intractable pain--- The board shall
presume that a physician who prescribes or administers a pain
relieving controlled substance, and in so doing exceeds the
average dosage of a pain relieving controlled substance, in the
course of the physician's treatment of a person for cancer- related intractable pain, when a medical diagnosis is established
and fully documented in the patient's medical record and
indicates intractable pain directly related to symptomatic
cancer, does not violate article three or article fourteen of
this chapter. Expert medical testimony that a treatment, dosage
or frequency choice is not in conformity with accepted medical standards is required to rebut the presumption established in
this subsection.
(d) Non-cancer related intractable pain --- The board may
not consider that a physician who prescribes or administers a
pain relieving controlled substance, and in so doing exceeds the
average dosage of a pain relieving controlled substance, in the
course of the physician's treatment of a person for non-cancer
related intractable pain has conclusively violated article three
or article fourteen of this chapter. The board shall consider
that for some patients diagnosed with conditions other than
cancer, accepted medical standards support the prescription or
administration of an opioid or other pain relieving controlled
substance, even in large doses, for intractable pain directly
related to the diagnosed condition, when the clinical basis for
the diagnosis is established and fully documented in the
patient's medical record. The board shall presume that a
physician who prescribes or administers an opioid or other pain
relieving controlled substance to relieve non-cancer related
intractable pain when other measures fail, regardless of
diagnosis, in accordance with written guidelines of the
applicable board for the treatment of chronic non-malignant pain,
and who adequately documents the factors supporting the treatment
choice in the medical record, does not violate article three or
article fourteen of this chapter.
(e) Administering pain relieving controlled substances--
No registered nurse shall be subject to disciplinary action by the West Virginia board of registered nurses by authority of
article seven of this chapter, or any administrative rule issued
thereunder, for administering, within the scope of practice and
in accordance with the orders of a physician, a pain relieving
controlled substance in excess of the average dosage to alleviate
or control intractable pain.
(f) Dispensing pain relieving controlled substances-- No
registered pharmacist shall be subject to disciplinary action by
the West Virginia board of pharmacy by authority of article five
of this chapter, or any administrative rule issued thereunder,
for dispensing, within the scope of practice and in accordance
with the orders of a licensed physician, a prescription for a
pain relieving controlled substance in excess of the average
dosage to alleviate or control intractable pain.
§30-3A-4. Limitations of article.
(a) Any protection of physician, nurse or pharmacist
conduct created in this article does not apply to disciplinary
actions against a physician, nurse or pharmacist related to
crimes under state or federal law involving any controlled
substance.
(b) Any protection of physician or nurse conduct created
in this article does not apply to disciplinary actions relating
to prescribing or administering a controlled substance for other
than a therapeutic purpose, to disciplinary actions against a
physician for actions outside the course of the physician's
professional practice, or to disciplinary actions against a nurse for actions outside the scope of practice.
(c) This article may not be construed to imply that, in
the course of a physician's treatment of a person for intractable
pain, it is not appropriate for a physician, nurse or pharmacist
to consider evidence or behavioral indications of drug abuse or
diversion of controlled substances.
(d) This article may not be construed to legalize,
condone, authorize or approve mercy killing or assisted suicide.
NOTE: The purpose of this bill is to limit disciplinary
actions against certain health professionals prescribing,
administering or dispensing controlled substances in the
management of intractable pain.
This article is new; therefore, strike-throughs and
underscoring have been omitted.