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Doctor Found Liable in Suit Over Pain

Court: Man's treatment was a case of elder abuse, jury says. Family is awarded $1.5 million.


SAN FRANCISCO — In a decision that could improve how seriously ill Americans are treated for pain, an Alameda County jury ruled that a physician was guilty of elder abuse for failing to give a dying man sufficient medication to relieve his suffering.

The Hayward jury ruled Wednesday that Dr. Wing Chin must pay $1.5 million to the children of William Bergman, who died of lung cancer in 1998 at the age of 85. Chin declined to comment on the case.

"To my knowledge, it's the first time any jury has found a physician guilty of elder abuse for under-treatment of pain," said Dr. Brad Stuart, medical director for Sutter VNA and Hospice for Northern California. "The fact that a physician was found guilty of elder abuse is a terrible thing. . . . It's a serious wake-up call to physicians that we must begin treating pain the way we treat disease."

Inadequately treated pain is a major health problem afflicting millions of Americans, according to medical researchers. Recent studies have shown that 75% of surgery patients and 70% of cancer patients received too little pain relief.

In their lawsuit against Chin, Bergman's children argued that their father was denied proper pain medication during a five-day stay at Eden Medical Center in Castro Valley, where he was admitted in February 1998, complaining of intolerable back pain.

During the course of his hospital stay, nurses charted Bergman's pain at levels ranging from seven to 10 on a scale that awards a 10 to the worst pain imaginable, according to the Compassion in Dying Federation, an advocacy group that helped the Bergmans file suit. Bergman was discharged and died at home three days later under the care of a hospice program.

Bergman's family complained about their father's care to the California Medical Board, which took no action against Chin. As a result, the family contacted Compassion in Dying and filed the suit against the physician and Eden Medical Center.

The hospital settled with the Bergmans before the trial began, said Barbara Coombs Lee, president of the nonprofit group that pushes for improved end-of-life care. While the amount of the settlement was not made public, Lee said that hospital officials agreed to conduct educational programs in pain care for the staff.

Cassandra Phelps, spokeswoman for the hospital, would not comment on the case itself but called the jury verdict "surprising." Chin, who specialized in internal medicine, spent 30 years on the hospital staff and is "well-respected, well-regarded."

Bergman's daughter Beverly said in a written statement that the verdict "will never change the excruciating pain my father endured, but I hope that no other patient will have to suffer needlessly as my father did."

The Hayward verdict was not the first jury award to a victim's family for under-treated pain, said Robyn S. Shapiro, a bioethics scholar at the Medical College of Wisconsin.

The precedent was a 1990 North Carolina jury that awarded $15 million in a negligence case to the family of a dying man with prostate and bone cancer whose requests for stronger pain medication were denied by nursing home staff.

Shapiro questioned how much impact the Hayward verdict would have outside California, given that most states don't have an elder abuse statute like the one that was pivotal in the case. "As a theory, it may not be a useful tool outside California," she said.

Still, the verdict was likely to improve medical practice, she added. "It's not the first, but given what we know about the sad history of inadequate pain management in this country, it's one of the few" verdicts of its kind, Shapiro said. "So I find it exciting. . . . It sends a message to physicians and other health care providers that pain management has to be an integral part in what they need to think about to provide adequate care."

Moreover, the verdict's impact may be heightened somewhat by society's growing interest in so-called death-and-dying issues and also its heightened sensitivity to the often cruel shortfalls in pain relief.

For instance, the national organization that accredits hospitals put in place new pain management guidelines only last January. Scholars cite several obstacles that have traditionally impaired adequate pain relief.

Among them are a general social aversion to the narcotic drugs like morphine that form much of the pain-relief arsenal; bureaucratic and paperwork hassles that doctors face when trying to prescribe painkilling drugs, which belong to the strictest class of controlled substances; harsh disciplining of doctors for over-prescribing narcotics; and a general American belief in toughing it out, an attitude shared by some patients as well as physicians.

In Bergman's case, nine of the 12 jurors agreed that Chin's treatment was both reckless and neglectful. In civil cases, only nine jurors need to agree for a verdict. The jury deadlocked on the question of whether the physician's conduct was malicious.

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