Doctor faces charges for allegedly undertreating pain

Survivors of a lung cancer patient say a California physician committed elder abuse as well as malpractice.

By Vida Foubister, amednews staff. March 20, 2000.

In the first case of its kind, a California physician is being charged with elder abuse, in addition to malpractice, for allegedly failing to adequately treat a dying man's pain.

The children of William Bergman, who died of lung cancer, filed a civil lawsuit against Wing Chin, MD, after the Medical Board of California chose not to take any action in response to their complaint.

"We found that the care was grossly inadequate to my father, that they did not provide adequate pain medication or relief to him while he was in the hospital or when he was discharged to our home to have hospice care," said Beverly Bergman.

Dr. Chin's attorney, who describes the charges as "baseless," appears baffled by the elder abuse allegation.

"It's a very strange case," said Bob Slattery of McNamara, Houston, Dodge, McClure & Ney in Walnut Creek.

California Superior Court Judge Barbara Miller, however, rejected his motion to dismiss the elder abuse claims, and the case is expected to go to a jury trial this month.

Though novel, the charge of elder abuse wasn't a surprise to some in the field of pain management.

B. Eliot Cole, MD, administrator of the national pain data bank and pain program accreditation for the American Academy of Pain Management, said that Kathryn Tucker, one of the family's lawyers, had raised the potential for "civil negligence litigation" in letters to the editor of some medical journals. Depending on the outcome of this case, that message might become more poignant.

"It's going to send a real wake-up call to all of us if this goes all the way through and he's found guilty," Dr. Cole said.

Under this new legal theory, several things change.

First, the Elder Abuse Act doesn't have a cap on damages. In contrast, pain and suffering awards in medical malpractice claims are limited to $250,000 in California. Second, there's the potential to recover punitive damages and attorney's fees. And third, a patient's pain and suffering survives death and can accrue to the estate.

"It represents a substantially greater financial risk to medical providers," said Tucker, who is the director of legal affairs for Compassion in Dying Federation.

"The goal of the family in this case and of Compassion in Dying is that this kind of accountability will motivate physicians and other providers to be more attentive and aggressive in caring for pain."

Few experts dispute the need for physicians to change the way they treat pain, but they aren't likely to endorse the means Tucker is using.

"It's an interesting question, whether inadequate pain management is malpractice," said William Winslade, PhD, James Wade Rockwell professor of philosophy in medicine at the Institute for the Medical Humanities, University of Texas Medical Branch at Galveston. "Whether it's elder abuse as well is a little more problematic. If the doctor was treating the patient's pain in good faith but just made a mistake, then it certainly wouldn't be abuse in the sense of it being intentional harm."

Acting in lieu of the medical board

Further muddying the case against Dr. Chin is a letter the Medical Board of California sent to the Bergman family. It states that "our medical consultant did agree with you that pain management for your father was indeed inadequate. However, there is insufficient evidence at this time to warrant pursing further action in this case."

Spokeswoman Candis Cohen explained that "a physician can make an error and not be disciplined by the medical board [if] legally we couldn't meet our burden of proof [or if] a medical expert advising the board did not find that the physician error rose to the level of gross negligence."

Complaints and investigations aren't public record, but the potential for statements regarding physician conduct, such as those made to the Bergman family, to become public troubles the California Medical Assn.

"It's just gratuitous allegations to which the physician has no opportunity to respond," said Sandra Bressler, CMA's director of professional standards and quality care.

Further, it can "encourage complainants to think that there was something wrong when in fact it's not clear that there was," she said.

That seems to be at least partially true in the current lawsuit.

"Because the California Medical Board is not doing anything, we decided that we had to get some remedy," said Beverly Bergman.

Meanwhile, Dr. Chin must wait until the trial to defend the care that he provided.

"We want this to be aired so everybody knows exactly how the doctor did comply with the standard of care," Slattery said.

And although doctors need to be more attuned to their patients' suffering, there is also a need for patients to be more communicative about their need for pain relief.

"We have to be careful not to turn this into an ideological battle," Dr. Winslade said. "We don't want doctors to become hostile to the idea of giving proper pain management or doing it out of fear that they're going to be sued. We want them to make their judgments based on good clinical medicine."

ADDITIONAL INFORMATION:

Pain control drugs lacking worldwide

Many people in developing countries have no access to drugs that are essential for the alleviation of pain and suffering, according to a United Nations drug control agency annual report released last month.

Though global opioid consumption has continued to rise over the past 15 years, the International Narcotics Control Board found that the disparities among their use had increased. The 10 largest consumer countries accounted for as much as 80% of analgesic morphine consumption, while several African countries reported no morphine consumption at all.

"In developing countries the relief of pain and suffering is given much lower priority than other, more urgent problems" such as malnutrition and infectious diseases, the report concluded.

Particularly concerning are World Health Organization projections that by 2015, two-thirds of the estimated 15 million new cancer cases per year will occur in developing countries -- those that have the poorest access to pain treatment. But the problem isn't limited to poorer countries.

"It is generally agreed that the treatment of chronic or acute pain caused by cancer is still inadequate: Only about 10% to 30% of patients suffering from severe cancer-related pain may be receiving adequate treatment. ... The rate is much lower in developing countries," said the report.

These findings led the president of the Vienna-based board, an independent organization that oversees the implementation of U.N. drug treaties, to call for a global response.

"The international community must exploit the benefits of globalization in order to make essential narcotic drugs available to those who need them," said A. Lourenço Martins.