Doctor Found Reckless for Not Relieving Pain

On June 13, Compassion achieved a great victory. A California jury returned a $1.5 million dollar verdict for the undertreatment of pain at end of life. The case sets a precedent, citing that failure to treat the pain of an elderly patient can constitute elder abuse. The ruling will change the way healthcare providers view pain care for the terminally ill, and the consequences of not providing proper pain management

"We are in a new place in law and medicine," said Kathryn Tucker, Director of Legal Affairs. "Failure to treat pain is now something that physicians will be held accountable for."

William Bergman, an 85-year-old Californian dying of lung cancer, was admitted to Eden Medical Center in Northern California on February 16, 1998 complaining of intolerable back pain. He spent six days in the hospital treated by Dr. Wing Chin, an internal medicine specialist. Nurses consistently charted Mr. Bergman's pain level as 7-10, with 10 being the worst pain imaginable. He received Demerol, not the drug of choice for cancer pain. On the day he was discharged his pain remained at level 10. Bergman died in hospice care on February 24, 1998 after finally receiving proper pain management.

Beverly Bergman contacted Compassion to begin the process of holding the physician accountable for the deficient care provided to her father. On behalf of the Bergman family, Kathryn Tucker sent a letter to the California Medical Disciplinary Board requesting a medical conduct review. The California Medical Board replied by stating, "a lack of clear and convincing evidence that a violation of medical practice has occurred." In a July 1998, letter the board said, "Our medical consultant did agree with you that the pain management for your father was indeed inadequate," yet the board once again declined to take any action.

Compassion filed a suit in California State Court asserting medical malpractice and elder abuse. The defendant and hospital repeatedly asked the court to dismiss the elder abuse claims, arguing that the plaintiff was entitled only to the limited remedies available in a malpractice claim. Attorneys James Geagan, Clayton Kent and Kathryn Tucker argued that the conduct of the care of Mr. Bergman was more egregious than malpractice and constituted reckless neglect, making the remedies under the elder abuse statute available. The court denied the defense motions to dismiss, allowing the claim for elder abuse to go forward to trial. Eden Medical Center settled out of court for an undisclosed amount, promising to educate the medical staff in pain management. Dr. Chin refused to settle and the case was scheduled for trial.

Serving as an expert witness was Chief of the pain consultation clinic at San Francisco General Hospital, CIDF Board member Dr. Robert V. Brody. He testified that "There is an understanding finally that the biggest drug problem we have is with undertreatment of pain." Jurors heard testimony that Bergman's treatment was "woefully inadequate," "appalling" and "profoundly below the standard of care."

The June 13th verdict was reached after four days of jury deliberation. The jury found clear and convincing evidence that the physicians conduct was reckless, negligent abuse of an elder, and was only one vote short of conduct done with malice. The jury deadlocked on whether the doctor was guilty of malicious oppressive conduct.

This exhaustive and comprehensive three-year effort was cited in print, radio, and television outlets throughout the country. The San Francisco Chronicle published five articles during the month-long trial. Additional coverage appeared in CNN, Washington Post, Los Angeles Times, New York Times, and over twenty legal and medical trade publications -- placing Compassion's mission in the national spotlight.

Our thanks go to the pro bono work of co-counsels James Geagan and Clayton Kent and the firm of Brayton Purcell, who proceeded against all odds and prevailed in order to raise public awareness and educate the medical community. Costs were borne with a generous grant from The Mayday Fund.

"The message of this verdict is that the American public is no longer willing to tolerate such flagrant disregard of suffering," said Barbara Combs Lee, President of Compassion in Dying Federation. "This outcome encourages all providers to pay attention to their patient's pain and treat it appropriately. If they don't know how, they must be educated. The verdict empowers patients to insist that physicians treat pain and other symptoms at the end of life."