Cancer Patient’s Family Wins Suit for Undertreatment of Pain

HAYWARD, California—A California jury has awarded $1.5 million to the family of a lung cancer patient for undertreatment of his pain in the last days of his life. The suit was filed against the patient’s physician under the state’s Elder Abuse Act, since the state’s malpractice laws do not allow recompense for pain and suffering after the patient has died. The jury found that the physician’s failure to treat the pain adequately amounted to "reckless" behavior.

The suit claimed that the patient, 85-year-old William Bergman, was discharged from Eden Medical Center (Castro Valley, Calif) to home hospice care with a pain rating of 10 on a 1 to 10 scale. He had received 25-mg injections of meperidine (Demerol) while in the hospital. Mr. Bergman’s physician, Wing Chin, an internal medicine specialist, prescribed an oral analgesic, Vicodin (hydrocodone/acetaminophen), at the time of discharge.

When Dr. Bergman’s daughter Beverly Bergman asked for a stronger medication, Dr. Chin prescribed another meperidine injection and a fentanyl skin patch (Duragesic), but would not prescribe liquid morphine. After several more days of suffering, the patient received liquid morphine from another physician, which, according to his daughter, provided relief for his last day of life.

According to court documents, Dr. Chin’s lawyers said that he did not prescribe morphine due to uncertainty about Mr. Bergman’s diagnosis (biopsy results were suggestive of lung cancer but not definitive) and his concern that the patient, who had chronic lung disease, would have an adverse response to the narcotic. Also, according to Dr. Chin and respiratory therapists at the hospital, Mr. Bergman had told them before his discharge that his pain was tolerable.

After her father’s death, Ms. Bergman filed a complaint with the California Medical Board. The Board stated in a letter to Ms. Bergman: "Our medical consultant did agree with you that pain management for your father was indeed inadequate." However, the board failed to find sufficient evidence of error on the physician’s part "to warrant pursuing further action in this case."

Ms. Bergman then took her complaint to Compassion in Dying Federation, a nonprofit advocacy group that helped her file the suit against Dr. Chin and the hospital under the Elder Abuse law. "This is an important victory for advocates of pain care," said Kathryn Tucker, director of legal affairs for Compassion in Dying Federation. "Physicians have undertreated pain for a very long time with no accountability. Today’s verdict is a wake-up call."

Eden Medical Center settled its suit with the family out of court. As part of the settlement, the hospital agreed to provide instruction in pain management to its staff and to physicians who admit patients to the hospital.