TOM MAYO, ROBERT FINE

Dying patients tend to have one thing in common: At least half of them experience significant pain at least half of the time during their last days. That was the conclusion of a 1995 nationwide report that was the most comprehensive and reliable study of critically ill patients.

The conclusion didn't surprise most of the health care professionals who took part in another national survey. Seventy-five percent of those respondents believed they undertreat pain in dying patients. One of the most frequently mentioned reasons is a fear of legal liability.

It is literally our dying shame that the pain experienced by terminally ill patients is undertreated. Part of the shame is because the suffering is so avoidable, if only well established pain-control principles were followed. Pain and the fear of pain are major factors that lead patients to request the termination of life-sustaining treatment or physician-assisted suicide.

In the Netherlands, where both assisted suicide and active euthanasia are accepted medical interventions, studies show that when pain is adequately treated, dying patients withdraw their requests to be killed by their physicians.

The lesson is quite clear. At the top of anyone's list of "patient rights" - particularly if you oppose physician-assisted suicide and active euthanasia - should be freedom from unnecessary suffering and pain. Public policy should encourage physicians to diagnose, assess and aggressively treat pain.

But against all logic and the hard-won lessons of experience, Congress is poised to pass a law that would make it legally riskier for physicians to prescribe adequate pain relief. The legislation is entitled the "Lethal Drug Abuse Prevention Act of 1998." Its House sponsor is Rep. Henry Hyde, R-Ill. Its Senate sponsor is Sen. Don Nickles, R-Okla.

On its face, the legislation provides for sanctions against any physician or pharmacist who dispenses or distributes a controlled substance "with a purpose of causing, or assisting in causing, the suicide, euthanasia or mercy killing of any individual." That part of the bill obviously is aimed at the Kevorkians of the world, as well as any Oregon physician who, in accordance with that state's law, prescribes a lethal drug as part of a patient's attempt to commit suicide.

The bill goes on to create an exception when drugs are dispensed or distributed "for the purpose of relieving pain or discomfort (even if the use of the controlled substance may increase the risk of death)." State law in Texas and most other states is pretty much the same as this. So is there a problem? We think so, as do the American Medical Association, the American Geriatrics Society, the National Hospice Organization, the American College of Physicians and the American Pharmaceutical Association.

The bill will do nothing to stop Jack Kevorkian, who doesn't have or need a federal license for controlled substances because he doesn' t use federally controlled substances with his suicide "patients." Indeed, many lethal agents aren't on the federal list of controlled substances and aren't covered by this bill.

Much more troubling, the bill gratuitously adds one more legal threat to the others, real or imagined, that currently intimidate physicians into undertreating their patients' pain. We say "gratuitously" because state law already makes it a crime to dispense a controlled substance with the intent to kill.

This bill will intimidate physicians by imposing unnecessary penalties and adding an additional (federal) investigator whose job will be to judge the"intent" of a physician who prescribes large doses of painkillers to dying patients.

The specter of more patients spending their last days in even more pain isn't one that we should be willing to tolerate. As the most" do-nothing" Congress since 1948, our lawmakers would do well to add this bill to their list of nonachievements. It is bad medicine and bad policy.

Tom Mayo teaches health law and bioethics at Southern Methodist University's School of Law. Robert Fine is a physician who chairs the ethics committee at Baylor University Medical Center.

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