Evidence based practice is in danger from litigation: the case of the American Pain Society


Amelia Swift is a nurse lecturer at the University of Birmingham and a member of Council for the British Pain Society.

The National Health Service constitution sets out the patient’s right to safe, effective and evidence-based care (1). Professional codes of conduct such as the Code (2) for nurses and midwives make it clear that our practice must be based on the ‘best evidence available’. Further, the Nursing and Midwifery Council’s Standards (3) for nursing and midwifery education also makes serial references to the need for education to promote effective use of evidence and for nurses to acquire the skills needed for evidence based practice. In short Evidence Based Practice (EBP) is a fundamental and inarguable principle that is widely accepted by multiple stake-holders.

Failure to follow EBP may lead to harms for the patient that require redress. Gross failures of care in organisations such as the Mid-Staffordshire NHS Trust (4) lead to inquiries that inevitably identify a failure to adhere to evidence-based standards of care as a key component. As nurses we have a duty of care to our patients, and failure to demonstrate reasonable competence in our actions can lead to disciplinary proceedings and prosecution. The cost of clinical negligence in Trusts was approximately £60 billion in 2016_17 (5) and is rising annually.

Recently, the American Pain Society (APS), a national chapter of the International Association for the Study of Pain, filed for bankruptcy. The cause was an unsustainable assault on its charitable funds from litigators seeking redress for clients impacted by the ‘opioid epidemic’. The organisation stated that efforts to resolve ‘meritless’ lawsuits without entering into lengthy and expensive litigation had been unsuccessful (6). The APS has been at the forefront of advocating for increasing investment in pain research and publishes a highly respected journal (the Journal of Pain), which published research about the ‘opioid crisis’ and safe and effective use of opioids. In other words, an esteemed body of clinicians, researchers and educators who advocate for patients and promote evidence-based and safe practice have been decimated by repeated attacks, which are said to be baseless (in other words there is no evidence to support them).

It is very likely that the APS’s campaign to improve pain assessment and treatment by declaring pain the 5th vital sign (7) was at the heart of the litigation attempts. One of the unintended outcomes of the campaign was a rise in over-aggressive prescription of opioids, and the idea has now been abandoned, but not before it was widely adopted in the UK (8) and celebrated and endorsed by healthcare and other organisations and companies.  At the time it seemed a perfectly sensible way to improve persistently poor pain management practices. The scale of the ‘opioid crisis’ suggests that the APS will not be the only casualty. This is not a uniquely American problem despite the (mythical) perception that is it an overly litigious society (9). A quick Google™ search uncovers an abundance of UK legal firms willing to take on cases related to development of pressure ulcers due to a failure of the nurse to respond appropriately to risk assessment and at least one firm specialising in failure to administer medication such as analgesia.

This leads me to wonder how many other organisations that publish guidelines and seek to influence practice and policy will become risk averse, which will ultimately lead to an increasing difficulty for practitioners to find the evidence they need.


1. Department of Health and Social Care. The NHS Constitution for England London, UK: DHSC; 2015 [Available from: https://www.gov.uk/government/publications/the-nhs-constitution-for-england/the-nhs-constitution-for-england accessed 26/06/19 2019.
2. Nursing and Midwifery Council. The code: professional standards of practice and behaviour for nurses and midwives. London: Nursing and Midwifery Council, 2018.
3. Nursing and Midwifery Council. Standards framework for nursing and midwifery education 2018 [Available from: https://www.nmc.org.uk/standards-for-education-and-training/standards-framework-for-nursing-and-midwifery-education/.
4. Francis R. Report of the Mid-Staffordshire NHS Foundation Trust Public Inquiry. London, 2013.
5. National Audit Office. Managing the costs of clinical negligence in trusts. London: Department of Health, 2017.
6. Pain News Network. American Pain Society files for bankruptcy: Pain News Network; 2019 [Available from: https://www.painnewsnetwork.org/stories/2019/6/29/american-pain-society-files-for-bankruptcy accessed 20/7/19 2019.
7. American Pain Society Quality of Care Committee. Quality improvement guidelines for the treatment of acute pain and cancer pain. Journal of the American Medical Association 1995;274:1874-80.
8. Levy N, Sturgess J, Mills P. Pain as the fifth vital sign and dependence on the numerical pain scale is being abandoned in the US: Why? BrJAnaesth, 2018:435-38.
9. Walshe S. America’s ‘litigious society’ is a myth. The Guardian 2013 24 October 2013.

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