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Ground-Breaking Jury Verdict Awards $1.5 Million Undertreatment of Pain Equals Elder Abuse

California Jury sends a message of accountability to health care providers Alameda County California
Press Release Contact: Claire Simons 503-221-9556

Today a jury issued a ruling that will forever change the way healthcare providers view the legal significance of effective pain care for the terminally ill. "The message of this verdict is that the American public is no longer willing to tolerate such flagrant disregard of suffering," said Barbara Coombs Lee, President of Compassion in Dying Federation.

The case called Bergman v. Eden involved care provided to William Bergman, an 85-year-old Californian dying of lung cancer. Mr. Bergman was admitted to Eden Medical Center in Northern California on February 16, 1998, complaining of intolerable pain. He spent five days in the hospital, where he was treated by Dr. Wing Chin, an internal medicine specialist.

Nurses charted pain levels ranging from 7-10, with 10 points being the worst pain imaginable. Mr. Bergman was discharged to die at home, still in agony. His family ultimately consulted another physician who prescribed proper pain medication and Mr. Bergman finally obtained relief. He died in hospice care on Feb. 24, 1998.

"This is an important victory for advocates of pain care. Physicians have under treated pain for a very long time with no accountability," said Kathryn Tucker, Director of Legal Affairs for Compassion in Dying Federation. "Today's verdict is a wake up call."

Lead Trial Counsel, James Geagan, said "Medical experts testified that there were numerous serious deviations from Standards of Conduct. They called Dr. Chin's conduct "amazingly reckless" and "inexcusable."

"This outcome encourages all providers to pay attention to their patient's pain and treat it appropriately. If they don't know, they must become educated," said Barbara Coombs Lee. "The verdict empowers patients to insist that physicians treat pain and other symptoms at the end of life.

Beverly Bergman, daughter of William Bergman, contacted Compassion In Dying, a non-profit organization dedicated to improving care and expanding choices at the end of life. "Today's 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," she said.

Compassion in Dying Federation encourages patients to be knowledgeable and assertive consumers of medical services. If appropriate pain management is not provided, patients can and should complain to the nurses and physicians.

This case would not have been possible with out the generous devotion of time and resources by the firm of Brayton Purcell, Novato, Calif.


  Barbara Coombs Lee, President CIDF - 502-221-9556

  Kathryn Tucker, Director of Legal Affairs - 206-367-2134

  Ben Rich, Professor of Bioethics, UC Davis School of Medicine - 916-734-6010


Doctor found reckless for not relieving pain
$1.5 million jury verdict for family of cancer patient who went home to Hayward to die

Matthew Yi, San Francisco Chronicle, Thursday, June 13, 2001

In a trial that became a forum for the debate over how pain is treated in American medicine, an Alameda County jury yesterday found that an internist committed elder abuse and reckless negligence by not giving enough pain medication to a Hayward man dying of cancer.

The jury awarded the man's family $1.5 million in general damages. But jurors did not find that Dr. Wing Chin, a doctor at Eden Medical Center in Castro Valley, had acted with malice or had intentionally caused emotional distress, so there was no award of punitive damages.

The case is a major victory for patients' rights advocates who argue that many doctors don't treat pain adequately, said Barbara Coombs Lee, president of Compassion in Dying, a Portland advocacy group that provided legal assistance for the lawsuit.

"It's a good day for us," she said yesterday. "This case was against all odds. . . . This is a precedent-setting case because, to our knowledge, never before has under-treating pain been defined as elder abuse."

Beverly Bergman, 45, the daughter of retired railroad detective William Bergman, who died in 1998, said she was happy with the outcome.

"We're very grateful that the jury worked so hard," she said. "It'll send a message to the medical community that they cannot under-medicate without consequences."

After the verdict, Chin simply shook his head when a reporter asked for a response, and then was whisked away by his attorney, Bob Slattery.

Slattery later said he was disappointed by the jury's decision. "We're reconsidering our options on the appeal," he said.

Eden Medical Center spokeswoman Cassandra Phelps also called the verdict "disappointing."

"Dr. Chin has devoted his entire career to caring for patients, many of whom are seniors," Phelps said. "It is difficult for those who know and work with him to accept the verdict."

In order for the Bergman family to win the case, they had to prove not only negligence by Chin, which is usually enough in a malpractice suit, but reckless negligence.

On their fourth day of deliberations, six men and six women decided 9-3 that there were elder abuse and recklessness, while deadlocking 8-4 on the questions of malice and emotional distress. In a civil case, at least nine jurors must agree to reach a decision.

The verdict will have lasting effects on pain treatment, doctors say.

"It worries me because the message is, you're damned if you do and you're damned if you don't," said Dr. Scott Fishman, who heads the University of California at Davis Medical Center's division of pain medicine.

For years, most doctors have erred on the side of under-medicating for fear of legal ramifications from potential addiction to pain killers, he said.

"This case is going to say to (doctors), that it's going to be a risk not treating pain," Fishman said.

Dr. Steven Pantilat, who teaches at the University of California at San Francisco's medical school, said although doctors will now face pressure from both sides, there's plenty of room in the middle to relieve pain for patients safely.

"It can be done. It can be challenging in some cases, but it's a practice that should be well in the scope of a physician's practice," he said.

William Bergman, who suffered from lung cancer, was admitted to Eden Medical Center in early 1998.

The lawsuit alleged that Chin was reckless in not prescribing strong enough medication for Bergman, who complained of severe back pain.

Bergman stayed at the hospital for six days as nurses charted his pain on a 1-to-10 scale, 10 being the worst. A report rated his pain consistently in the 7-to-10 range and on the day he was discharged, because he wanted to go home to die, his pain was at level 10.

He died at home Feb. 24.

Bergman's family filed a complaint with the California Medical Board, which took no action against Chin because it did not find "clear and convincing evidence of a violation of the Medical Practice Act," board spokeswoman Candis Cohen said earlier.

Although the board's medical consultant concluded that the hospital's pain management was inadequate, Cohen said not every error a physician makes rises to the level where the board could take disciplinary action.

Cohen refused to comment yesterday on the verdict.

The jurors, who had been deliberating since Friday, said the debate was intense, with arguments often escalating into shouting matches.

"It was a very tough case for all of us," said jury foreman Carlos Clavel, 33, of San Lorenzo. "Some of us didn't feel Dr. Chin was negligent. . . . Some of us felt he used treatment based on his best judgment."

Another juror said that after hearing the evidence, it was obvious that the charges were legitimate.

"I felt the evidence was clear and convincing," said Sherrie Graston, 36, of Fremont. "Part of treating a patient is to treat pain."

The verdict fuels the fire for state Assemblywoman Dion Aroner, D-Berkeley, who authored a bill that would require all California doctors to take a pain management course.

Chronicle staff writer Ray Delgado contributed to this report.


Elder-abuse verdict challenges physicians on pain: Doctors must balance relief against addiction
Matthew Yi, San Francisco Chronicle, June 15, 2001

A landmark verdict of elder abuse against an East Bay internist for not giving enough painkillers to a dying man has grabbed the attention of physicians already under pressure to make treatment decisions based on subjective evidence.

"How do you define a satisfactory amount of (pain) medication?" said Berkeley pain specialist Dr. Michael H. Park. "When (the patient) says it's OK? If the patient says I don't feel OK, do you just simply give more?"

Treating pain, he said, is a fine art that combines what the patient says he feels with the doctor's medical knowledge and past experience. Treatment isn't something that should be dictated by fears of malpractice lawsuits, he said.

"I think it's dangerous for (lawyers and courts) to decide what doctors need to do," said Park, who has been practicing for a decade.

An Alameda County jury on Wednesday found Dr. Wing Chin committed elder abuse and reckless negligence for not giving enough pain medication to lung cancer patient William Bergman, 85, who was admitted to Eden Medical Center in Castro Valley in February 1998. He died later that month at his home in Hayward.

The jury also awarded $1.5 million to the Bergman family, although state law puts a cap of $250,000 on pain and suffering damages, attorneys on both sides said yesterday. Alameda County Superior Court Judge David E. Hunter is expected to rule on the final figure later this month.

The family also sued Eden, but the hospital settled the case earlier. Part of the settlement included pain training for its doctors.

Dr. Jeffrey Randall, president of the hospital's medical staff, said yesterday he's unsure how the ruling will affect pain treatment at Eden.

"I think it's too soon to know what the long-term ramification is going to be," he said. "But I think it's worrisome that something like this can happen to someone of Dr. Chin's caliber. . . . He's well regarded by his colleagues, and he's treated many physicians and their families."

However, the message of the verdict is clear, said Dr. Russell Portenoy, former president of the American Pain Society and head of the pain management department of Beth Israel Medical Center in New York.

"It begins to create the reality of (punishment) . . . for physicians who don't respond to patients who have severe pain," Portenoy said.

In the past, most doctors erred on the side of undermedication, fearing malpractice suits from possible addiction to painkillers, leading some physicians to be too lax about pain treatment, he said.

In fact, structured guidelines on pain management are relatively new and still evolving.

The Joint Commission on Accreditation of Healthcare Organizations, which accredits most hospitals and nursing homes in the United States, just this year incorporated standards for pain management, Portenoy said.

The number of state medical boards that have explicit guidelines on treating pain is growing but still in the minority, said David Joranson, director of the Pain and Policy Studies Group at the University of Wisconsin's Comprehensive Cancer Center.

His research group recently came up with pain management guidelines, which have been adopted by medical boards in 15 states.

"We had 11 workshops around the country on the subject, and it led to an unprecedented increase in the number of state boards coming up with guidelines on pain management," he said. .

But California isn't one of them. That's because the Golden State's medical board instituted its own rules in 1994. Three years later, the state Legislature also passed the Pain Patient's Bill of Rights, allowing patients to ask for painkillers of their choice.

This year, the state Assembly approved a bill, which is now in the Senate, that would require doctors to take pain management courses and the state medical board to keep statistics on under-treatment complaints.

The Bergman family filed a complaint with the California Medical Board, but it refused to take action against Chin.

Board spokeswoman Candis Cohen admitted the organization doesn't keep an accurate count.

"However, historically, complaints regarding the undertreatment of pain have been nearly nonexistent. That is the experience of our board," she said yesterday.




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