Pain Management Closed Claims Study

Jacqueline Ross, RN, PhD, Coding Director, and Michelle Swift, RN, JD, Senior Patient Safety Risk Manager

The Doctors Company reviewed medical malpractice claims that closed between 2008 and 2018 and involved pain management physicians as the primary specialty responsible in the claim. That criteria identified 273 claims and lawsuits. The overarching goal of this study was to provide data and analysis of closed claims, which in turn promotes open discussions with peers and organizations for ways to improve patient safety within the pain management environment and beyond.

Chronic pain is considered pain that persists for more than three months. In the United States, one out of every five Americans experiences chronic pain that is unrelated to cancer pain. Chronic pain can extend beyond the pain itself, often encompassing fatigue, anxiety, and sleep deprivation. The cost of pain extends into the overall economy, with the loss of productivity estimated to be around $300 billion, and with other factors like medical costs and disability programs, the annual costs are upwards of $600 billion. Add in issues related to the ongoing opioid crisis, and we quickly realize that by understanding chronic pain management, we can improve medical care, patients’ quality of life, and society overall.

Given the complexity of chronic pain, it is essential that patients receive expert medical management from their healthcare providers. Pain management physicians have advanced training in the evaluation, diagnosis, and treatment of various types of pain. These specialists may treat both acute and chronic pain, and they can coordinate the care of patients, as many people require multiple therapies for their pain. Treatments used by pain management physicians include medications, nerve blocks, epidural steroid injections, spinal cord stimulations, joint injections, and others.

Major Injuries

In exploring the major injuries involved with pain management claims, the top three injuries were adverse medication reaction (16 percent), puncture/perforation (11 percent) and nerve damage (11 percent). The most common body parts/systems affected were found to be the central nervous system (23 percent), lumbar spine (10 percent), cervical spine (8 percent), and thoracic spine (5 percent).

Top Major Injuries in Claims Involving Pain Management Physicians 2008–2018

Over the study period, some differences were found in evaluating patient injuries. While the injuries of adverse medication reaction and death remained steady, the other major injuries demonstrated increases over the studied years. Emotional distress and infections showed slight increases as the years proceeded. However, nerve damage and punctures/perforations rose at a steeper rate, with puncture/perforation having the most pronounced rise in major injuries.

Major Injuries in Pain Management Claims 2008—2018



 Nerve Damage


Treatment Location

The treatment location involved in pain management claims was found to be primarily the ambulatory setting (89 percent). That said, locations varied, and they included:

Location of Pain Management Claims 2008–2018

Claim Severity

The severity of injury was assessed using the National Association of Insurance Commissioners (NAIC) severity scale (0–9), with an added severity of B to indicate a high-severity injury involving a viable pregnancy that resulted in the infant’s death. The majority of the pain management physicians’ claim sample was made up of medium-severity ratings (n =143; 53 percent). Included in the thirty-eight percent high-severity category (n = 103) were fifty-one deaths (49.5 percent of the high-severity category).

Severity Among Claims for Pain Management
Physicians 2008—2018

Assessing the severity of the claims over this study period, the low-severity category was found to remain steady. There was a noted decrease in medium-severity claims, from 56 percent in the first half of the period studied (2008 to 2013) to 48 percent during the second half of the period studied (2014 to 2018). This drop was manifested in the expanded percentage of high-severity claims during the 2014 to 2018 period, 41 percent of the claims, compared to 35 percent during the interval from 2008 to 2013, including a rise in deaths from 16 percent to 21 percent during 2014 to 2018.

Comparison of Severity of Two Periods for Pain Management Physicians




Procedures in each claim are coded by the clinical analysts if the procedure contributed to the malpractice claim. Sixty-three percent of the claims reviewed had a procedure included, which indicated the procedure was integral in the claim being filed.

By far, the most common procedures performed by pain management physicians whose claims were included in our study involved the spinal cord area. The injection of an anesthetic for analgesia was the most frequent, followed by injection of a steroid, then the placement of a spinal neurostimulator into the spinal column. Injection of anesthetic into a peripheral nerve for analgesia was the second most typical procedure group seen. Injection into a sympathetic nerve for analgesia, implantable infusion pump, and the injection of a steroid or other prophylactic substance each comprised five percent of the procedures performed.

Procedures Involved in Malpractice Claims Alleged Against Pain Management Physicians 2008–2018

Top Factors Contributing to Patient Claims

Before recommending any patient safety measures, it is essential to examine areas for mitigation. Our analysis includes a review of physician experts’ review of medical records, depositions, interviews, and other documents to determine what could be done differently to avert patient harm.

During the analysis of each claim, a structured taxonomy is used. This taxonomy provides various levels to examine the data, and with the contributing factors, there are three levels: category (broad), subcategory (more specific), and detail (specific). In the review of these claims, broad categories of contributing factors were defined first.

Technical skill was the most prominent contributing factor, found in 54 percent of the claims, followed by clinical judgment (41 percent); behavior-related and communication factors contributed to 31 percent of claims. Documentation as a contributing factor was observed in 22 percent of the claims, administration in 11 percent, and clinical systems in 7 percent.

Further drilling into the subcategory level was accomplished, revealing that technical performance was the leading factor in the studied pain management claims, found in 49 percent of these claims. This factor was followed closely by patient factors, appearing in 48 percent of these claims. Tied for third place, appearing in 23 percent of pain management claims, were the factors communication between the provider and the patient/family and the selection/management of therapy. Clinical judgment factors were found in 21 percent of these claims, and insufficient or lack of documentation factors were noted in 18 percent of these claims.

A closer analysis of an event is required to better understand and identify any effective changes that could be implemented. With any procedure or treatment, there are possible known complications, and (hypothetically) pre-procedure, all patients are informed of these potential complications. However, injuries may still occur, and this would be considered a possible technical problem. Yet, these complications can often lead to claims being filed and, in this study, this occurred 44 percent of the time. Further, 10 percent of the claims revealed patient concerns that the choice of invasive procedure was not the correct one. Additionally, another 10 percent of claims involved patients who were dissatisfied with the care their pain management physician was providing to them.

Top Contributing Factors Among Pain Management Physicians 2008–2018

When considering whether the contributing factors may have changed over the years of the study, the overall categories were examined. Differences were noted in the clinical judgment, documentation, and technical skill categories, so the next level of analysis was completed on the subcategory level.

The clinical judgment category has seven subcategories: patient assessment, selection/management of therapy, patient monitoring, failure to obtain consult/referral, failure to ensure patient safety, conditions affecting the caregiver, and other. Each of these areas were evaluated. Two categories showed steady increases over the duration of this study: patient assessment and the selection/management of therapy.

The documentation category included three subcategories: mechanics, insufficient/lack of documentation, and content decisions. Insufficient/lack of documentation showed an increase in the number of claims over the years. The other two categories remained relatively the same.

The technical skill category includes four subcategories: improper use of equipment, medical error, retained foreign body, and technical skill. Assessment of each subcategory was completed, with technical skill demonstrating an increase over the study period. The other categories remained stable. Technical skill showed the strongest increase of all the combined subcategories over the years.

Informed consent crosses over contributing factor categories, with communication and documentation features. The influence of informed consent in malpractice claims, or poor outcomes overall, should not be underestimated. For example, despite being a low (7 percent) contributing factor for improper performance, insufficient consent between the physician and the patient or family remains a top contributing factor in pain management claims. An effective informed consent discussion requires an open dialogue that sets realistic expectations regarding outcomes and affords the patient an opportunity to ask questions and voice concerns. It benefits the patient and can mitigate the risk of a malpractice claim.

Contributing Factor Change in Pain Management 2008—2018

 Patient Assesment Issues

 Insufficient/Lack of Documentation

 Selection/Management of Therapy

 Technical Performance

Claim Types

The top four types of claims for pain management physicians composed sixty-eight percent of the studied claims, with the most prominent type being improper performance of treatment/procedure (n = 112). Improper medication regimen management appeared in 13 percent (n = 36) of the claims, improper management of treatment course appeared in nine percent of claims (n = 25), and diagnosis-related allegations appeared in six percent (n = 16) of the claims.

Case Types of Pain Management Physicians 2008–2018

How the case types may have changed over the study period was explored. The proportion of diagnosis-related claims did not change during the study period. Improper medication management claims increased slightly. Importantly, both improper performance of treatment/procedure and improper management of treatment case types increased over the study period.

Indemnity and Expense

Overall, there has been a steady rise in closed pain management claims over the study period. There were 275 total coded claims from 2008 to 2018, with an increasing pace from a low of 14 cases in 2008 to an average of 30.5 cases per year in 2017 and 2018:

Frequency of Claims Among Pain Management Physicians 2008—2018

Thirty-six percent of the claims had a paid indemnity (n = 99 claims), with an average indemnity paid of $312,944 (median $34,330). The overall mean expense paid was $102,760 (median $240,000). Over the study period, there has been a slight increase in the number of paid indemnities in the CRICO database.

Pain Management Claims with Paid Indemnities 2008—2018

The most common case type among the paid indemnities was improper performance of treatment/procedure (44 percent), followed by improper medication regimen management (14 percent) and improper management of treatment course (8 percent), which mirrors the overall case types. Sixty-five percent of the claims with paid indemnities had procedures that were considered directly related to the malpractice claim. The most common procedures involved injections of agents into the spinal canal (56 percent), with a distant second being the insertion of a spinal neurostimulator (9 percent).

When comparing the subcategories of contributing factors of paid indemnities to claims overall, differences did emerge. All claims in the study and those claims with a paid indemnity had technical performance as the top factor (49 percent for all, and 48 percent for indemnity). However, for claims with indemnity, the selection and management of therapy was the second highest subcategory of contributing factors at 44 percent, rather than patient factors. Selection and management of therapy was only 23 percent of the overall claims group, so it is evident that with indemnity, this contributing factor is a more salient subcategory. Additionally, clinical judgment and insufficient documentation had higher percentages in indemnities (39 percent and 25 percent, respectively), compared with their representation in the overall claims group (21 percent and 18 percent). Patient factors had less of an influence, with a drop from 48 percent overall to 14 percent within the indemnity claims group.

As the information was drilled down to the most specific contributing factors, potential differences between the specific contributing factors in claims that had a paid indemnity and specific contributing factors in claims that did not have a paid indemnity were examined. If a factor met the assumptions for the chi-square for independence statistical test, then this test was applied to assess if there was a relationship between the contributing factor and paid indemnity.

Six contributing factors met the criteria for the chi-square for independence statistical test, and four were statistically significant, indicating a relationship between a specific contributing factor and a paid indemnity. Those contributing factors included the selection and management of surgical/invasive procedures, the selection and management of medication, the failure or delay in ordering a diagnostic test, and communication between providers regarding the patient’s condition. The most common test not ordered or delayed was the urine drug test while the pain management physician was prescribing opioids, followed by a CT scan prior to placement of a spinal neurostimulator.

There were no relationships found between paid indemnity and technical performance, known complication, or failure and delay in obtaining a consult. Other contributing factors, such as the selection and management of therapy for surgical/invasive procedures, showed a stronger tendency to result in a paid indemnity.

Contributing Factors Involved in Pain Management Claims Overall

Indemnity Paid

No Indemnity Paid

Technical performance—possible technical problem, known complication



Selection/management of therapy—surgical/invasive procedures#



Selection/management of therapy—medication, other#



Communication between providers regarding patient’s condition#



Failure/delay in obtaining consult/referral



Patient assessment—failure/delay in ordering diagnostic test **



Significant at *p < .05; **p < .01; #p < .001

Top Pain Management Case Type: Improper Performance of Treatment/Procedure

The major case type found among the studied claims was the improper performance of treatment or procedure (40 percent). As such, a better understanding of this case type is crucial. Additional analysis was conducted.

The claimants affected mostly experienced a medium-severity injury (64 percent), followed by high-severity injury (33 percent), then a few low-severity injuries (3 percent). Thirty-two percent (32 percent) of the final diagnoses in the improper performance of treatment/procedure case type entailed a nervous system / central nervous system complication. Seventeen percent of the claims were punctures or lacerations during a procedure, and 7 percent included a hematoma complicating a procedure.

The procedures involved in the improper performance of treatment/procedure case type were placed into broad ICD9 categories. Seventy-two percent of the claims comprised injections into the spinal canal or placement of a spinal neurostimulator. Twelve percent involved injection into the peripheral nerve or implantation of neurostimulator leads. Six percent entailed the injection of a steroid, and 5 percent included injections into a sympathetic nerve.

An overwhelming percentage of the subcategory contributing factors with improper performance of treatment/procedure involved technical performance factors (86 percent), followed by insufficient or lack of documentation (22 percent), communication between the patient/family and the provider (19 percent), patient assessment issues (16 percent), selection and management (16 percent), and patient behavior factors (15 percent).

Improper performance is a subset of the larger pain management contributing factor. There is relatively no difference in the detail level contributing factor percentage and the percentage of the overall pain management contributing factors.

However, the variances begin to emerge with other detail-level contributing factors. For example, in the improper performance of treatment/procedure sample, 11 percent of the claims had the detail-level contributing factor of selection/management of surgical/invasive procedures, but when placed in the larger pool of the entire pain management sample, that percentage of improper performance of treatment/procedure case types was found in 44 percent of the sample. There was a difference of 33 percent in this contributing factor. Where a surgical or invasive procedure was involved, the increase seen would be reasonable within the context of the larger sample, since the case type itself involves a procedure/treatment that is often invasive in nature.

Wider variances are seen in issues related to informed consent, both in communication (83 percent) and documentation (55 percent), poor technique/other (47 percent), and insufficient documentation in the review of/participation in care (52 percent). These larger variances are important to investigate more closely to determine if they denote meaning based on the case type.

Contributing Factor (CF)

% of CF of Improper Performance
(n = 112)

% of all of Pain Management CF
(n = 273)

Technical performance—possible technical problem, known complication



Selection/management therapy—surgical/invasive procedures



Insufficient/lack of documentation—informed consent



Patient factors—seeking other providers due to dissatisfaction with care



Inadequate informed consent for procedures—surgical/invasive



Poor rapport (includes unsympathetic response to patient)



Technical performance—poor technique, other



Patient assessment—failure/delay in ordering diagnostic test



Insufficient/lack of documentation—review of/participation in care




Additional analysis was completed by examining those claims of improper performance of treatment or procedure claims to compare those claims that had a paid indemnity and claims that did not. Thirty-nine percent of these claims settled, which was slightly higher than the 36 percent for the overall pain management claims. Additionally, the average paid indemnity was higher at $312,944 per claim.

Comparing the groups, differences did exist between them. The group that had no indemnity paid had slightly more female patients in their group. Their severity levels included some low-severity claims, more medium-severity claims (74 percent compared to 50 percent), and had an overall older average age.



Indemnity Paid n = 44



No Indemnity Paid n = 68

Percentage No Indemnity




























Average age



61.3 years

















Average age

48.4 years


53.6 years

















Average age

54.9 years


57.6 years


Overall average age

51.8 years


65.1 years



The contributing factors were investigated, comparing claims that ended in a paid indemnity with those did not following an allegation of improper performance of treatment or procedure. The table below displays the contributing factors examined by a chi-test of independence to examine if there was a relationship between the contributing factor and indemnity.


Contributing Factors Improper Performance of Treatment or Procedure

Indemnity Paid

No Indemnity Paid

Technical performance—possible technical problem, known complication



Selection/management of therapy—surgical/invasive procedures*



Insufficient/lack of documentation-informed consent



Significant at *p < .001

There were no significant differences between the groups with claims involving technical performance, known complication (p = .49), or insufficient/lack of documentation-informed consent (p = .28). There was a significant difference found with the selection and management of surgical/invasive procedures and paid indemnity (p < .001).

Case Examples

While there was no significant association between misidentifying an anatomical structure and indemnity payment, opportunities to learn to avoid these errors in the future are important. Below is a case in point.

The contributing factor of the selection of surgical and/or invasive procedure was statistically significant in its relationship to indemnity payments. One example, involving improper selection of a cervical epidural steroid injection (CESI) (among other factors), is described below.

The contributing factor of lack of communication between the provider and patient regarding informed consent for surgical and/or invasive procedure is examined in the case example below.

While most medical malpractice claims against pain management physicians tended to involve improper performance of treatment or procedure, there were other case types. One of those case types included choosing multiple medications and delivery methods for treatment of chronic pain.

Risk Mitigation Strategies

  • Include documentation about the procedure, including any abnormalities, difficulties, and/or complaints of the patient.
  • Any inconsistency regarding a patient’s drug screen requires justification and possible action. Pain management providers cannot ignore alcohol, marijuana, and/or other substances identified in the drug screen.
  • A significant factor was the lack of communication between providers regarding the patient’s condition. Several claims involved patients who were on anticoagulants, and the management of these medications pre- or post-procedure/s were not well-established between providers. Other claims contained problems with physicians not getting the previous physician’s medical records or assuring the patient was not obtaining narcotics from other physicians. This finding emphasizes the necessity of reviewing all medications with the patient at every visit and prior to any procedure. The use of a pre-procedure checklist can ensure that medications are consistently reviewed, along with other items. Such standardization assists in decreasing errors.
  • Opioids for chronic pain have a low rate of efficacy and a high risk for addiction and withdrawal. The Centers for Disease Control and Prevention (CDC) recommends that alternative treatments be attempted and other options used prior to starting long-term opioids.
  • Pain management physicians following best practices use a multimodal approach as well as a multidisciplinary approach for patients with chronic pain and underlying pain conditions. Best practices emphasize safe opioid management and implementing approaches that lessen opioid exposure. These multidisciplinary approaches may include medications, interventional approaches, restorative therapies, behavioral health interventions, and other approaches. Communication and collaboration are central to patient-centered care when diagnosing and planning a treatment strategy, regardless of the management approach.
  • When considering patient assessment, patient care, and patient evaluation in pain management, consider the mnemonic of HAMSTER: History, Assessment, Mechanism of pain, Social and Psychological issues, Treatment, Education, and Re-assessment.
  • Pain management physicians cannot ignore a patient’s alcohol intake when prescribing opioids.
  • As with all specialties where patients have chronic illness and see their physicians/providers over a long period of time, boundaries are essential. When these boundaries between pain management physicians and their patients become blurred, allegations of abandonment and/or a board of medicine or other regulatory agency action may be made against a physician’s license.
  • Pharmacists are important partners for pain management physicians and patients. Consulting with them can be very beneficial.
  • Consider coprescribing naloxone to high-risk patients (sleep apnea, obesity, personality disorders). This action is especially important during influenza season and during the recent COVID-19 outbreak.


This study is not representative of all pain management physicians and their practices. This study relied on closed medical malpractice claims from one large national malpractice carrier. The study does not account for other malpractice claims in the United States. Additionally, all injured patients do not seek legal action.


With over 100 million Americans experiencing chronic pain, pain management physicians are a vital part of the healthcare team. The ability to learn from past experiences, such as closed malpractice claims, about how to improve safety is vital. This study may provide some helpful guidance.

Further Reading

Singh VM. Patient-centered care is key to best practices in pain management. U.S. Department of Health and Human Services. Published May 10, 2019. Accessed January 7, 2021.


The Doctors Company extends its sincere gratitude to Dr. Sean Li for his insightful review of this study. Dr. Li is an interventional pain physician and the regional medical director at Premier Pain Centers in Newark, NJ. He is also the vice president of the NJ Society of Interventional Pain Physicians (NJSIPP) and an executive board member of the American Society of Pain and Neuroscience (ASPN).

The Doctors Company would also like to recognize Christopher Malinky, MD, for his contributions on current risks faced by pain management specialists. Dr. Malinky is the Chief Medical Officer at Interventional Pain Management in Colorado Springs . He is originally from Columbus, Ohio. He completed his medical degree from the Medical University of Ohio in 2002. Dr. Malinky completed a four-year anesthesiology residency and a subsequent pain medicine fellowship at Rush University Center in Chicago.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.