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Don't let DEA Scare
Tactics Frighten You

deasucks.com is an advocate for the rights of 
chronic pain patients and their doctors to be free 
from DEA interference and intimidation tactics.

 The (US Drug Enforcement Administration) DEA sucks
because its campaign to reduce the abuse and
diversion of prescription drugs is denying millions
of Americans adequate pain relief.


 
Pain Contracts; 

Are They a Legitimate Agreement
or Just Institutionalized Coercion?


Don't know what a pain contract looks like? See A Typical Pain Contract

"Pain Contracts" are another result of the DEA's war on pain patients and their doctors. Doctors use Pain Contracts to cover their rear; as proof to the DEA and other law enforcement that they are properly supervising those patients who get opiates. An additional benefit to doctors is that they serve to dissuade patients from filing lawsuits who have been discharged for failing to follow the rules. But are these contracts really legally binding? Definitely not.

These "contracts" are not legitimate, legally-binding contracts. They are essentially one-sided demands from your doctor, signed under duress, which treat you as a suspect in advance, rob you of your privacy and your right to be an active participant in your own health care, and your rights to accept or refuse treatments, and allow the physician to renege on his moral and ethical duty to treat you with a pseudo-legal agreement that you signed with a gun pointed at your head.

To understand why I think you have a gun pointed to your head, you have to understand the concept of "duress." Under contract law in most states and common law countries, a contract is unenforceable if it is signed under duress. As an example, if someone says to you you must sign a contract or I'll kill you, that is clearly duress, and that contract will usually be unenforceable. Similarly, when a doctor says you will sign this contract and abide by its terms or I will withhold medication from you (essentially sentencing you to torture until you can find another doctor) that is also very clearly duress. Add to that the danger of being medically blacklisted for violating one of these contracts (which is easier to do than you think--a few missed appointments and one  false negative or positive on your urinalysis is all it takes) and it is as if he has a gun pointed at your head. You do not have the option of *not* signing the contract.

From the Wikipedia:
http://en.wikipedia.org/wiki/Contract_law#Duress_and_undue_influence

Duress has been defined as a "threat of harm made to compel a person to do something against his or her will or judgment; esp., a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition." An example is in Barton v. Armstrong, a decision of the Privy Council. Armstrong threatened to kill Barton if he did not sign a contract, so the court set the contract aside. An innocent party wishing to set aside a contract for duress to the person need only to prove that the threat was made and that it was a reason for entry into the contract; the onus of proof then shifts to the other party to prove that the threat had no effect in causing the party to enter into the contract. There can also be duress to goods and sometimes, the concept of 'economic duress' is used to vitiate contracts.

Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. The law presumes that in certain classes of special relationship, such as between parent and child, or solicitor and client, there will be a special risk of one party unduly influencing their conduct and motives for contracting. As an equitable doctrine, the court has the discretion to vitiate such a contract. When no special relationship exists, the general rule is whether there was a relationship of such trust and confidence that it should give rise to such a presumption. 

You do not have to be a lawyer to realize that narcotics contracts very clearly meet the definition of duress. They enable your doctor, who is in a position of power, to take advantage of you by not only refusing medical care at will, but forcing you to undergo any and all treatments he recommends or be tortured. Such a contract not only amounts to duress, but a blank check for the doctor to get whatever he wants from you, so long as it would otherwise be legal. These contracts completely rob you of your right to autonomy as a patient and to refuse certain medical treatments, while offering no guarantees of any treatment from the doctor, other than a vague promise to "treat pain" (if it even includes that) which can easily be fulfilled by prescribing Tylenol and sending you to Physical Therapy.

Is is right for your doctor to say, "if you don't get back surgery, I will no longer give you your meds"? It shouldn't be because patients are supposed to have a say in what treatment they will accept--especially surgery, but it happens every day.

Terms: A set of clauses defining the exact set of promises agreed to. (Wikipedia)

This is critical. A valid contract should clearly spell out the terms of what is being agreed to to. Contracts are often voided for vagueness. Most of these contracts do *not* clearly spell out your obligations, but instead have vague terms like "go to PT" or "follow the doctor's treatment plan" without that plan being spelled out clearly in advance. You can sign one of these contracts, take narcotics long enough to develop a physiological dependency, and then find out that unless you agree to dangerous, invasive or unnecessary treatments, you will be taken off your meds. These contracts generally do not require your doctor to taper your withdrawal.

Consideration: consideration is the benefit being conferred on each party in exchange for fulfilling their end of the contract. if you say "I will mow your lawn for $20.OO" then the lawn mowing and the $20.00 are both forms of consideration. So long as you mow the lawn, you should get the $20.00.

Consideration can be implied, such as there is an implied obligation to pay your medical bills if you see a doctor, even if the terms and costs have not been agreed in advance. But consideration has to be two-sided, even if the consideration is inadequate. Both sides must benefit from the contract somehow: "I will give you my Mercedes for a $1" can be a legitimate agreement. "I promise to give you my Mercedes" generally isn't, because you're not getting any consideration.

Most narcotics contracts do not offer any consideration on the part of the doctor. Generally, they are a list of obligations for you to follow, but do not state any obligation to actually perform or do anything on your doctors part, and even where this is a promise to "treat your pain," does this mean if he refuses to treat you, you can get your money (consideration) back? Which leads to the next points:

* Mutual Right to Remedy: Both parties must have an equal right to remedy upon breach of the terms by the other party. (Wikipedia)

Clearly, your rights to any kind of legal remedy if your doctor refuses to honor the contract are almost nil.

* Mutual Obligation to Perform: Both parties must have some obligation to fulfill to the other. This can be distinct from consideration, which may be an initial inducement into the contract." (Wikipedia)

Your doctor is under no obligation to perform his end of the contract, but you must perform every aspect of yours or he can refuse to treat you. If your doctor refuses to properly titrate your dose, you have no remedy under these contracts. But if you refuse to see a therapist, even if you can't afford one, he can boot you out of his office without so much as a warning.

These are just a few of my reasons for why these contracts are bogus. They are coercive instruments that do not meet the requirements of a legally binding contract, they are detrimental to the doctor/patient relationship which must be based on mutual trust, they impose draconian punishments for even the mildest violations, and most importantly they are an infringement on the right of patients to autonomy in decisions regarding their own bodies and their lives. 

These contracts do nothing but put into writing what is an inescapable reality for people with chronic pain: that the medical profession has total power over us, and we'd better do what they say or else. They are indisputable evidence of the reality of our situation, put into writing and signed by us under duress as if this somehow legitimizes the crime being perpetrated against us. They put the lie to the idea that we have any choice in our medical care, other than to choose between submission and torture. Since they are not legally enforceable, these contracts are not so much a legal out for the doctor as an ethical out. If you violate the contract that you "voluntarily" signed then the consequences are all your fault, not his, and he can bullshit himself into believing that you therefore deserve your fate (if he doesn't already believe that).

In short, these contracts are a fraud and a con, allowing the doctor to con himself as well as you. I can only hope someday some smart lawyer will round up a few of these contracts and file a class action suit against the AMA for putting us into a situation where we have to sign away our rights or be tortured.

by "Sean C" 
Moderator of the "Payne Hertz" blog

 

 

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