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Lawsuit Alleges Elder Abuse for Inadequate Pain Control

Lawsuit Alleges Elder Abuse for Inadequate Pain Control

A California lawsuit may give you additional reason to make sure that your patients are adequately treated for pain.

In what is said to be the first case to assert that failure to treat pain adequately is a form of elder abuse, a recent Alameda County, CA, court ruling has allowed the case to proceed to trial.

California Superior Court Judge Barbara Miller, according to a press release from Compassion in Dying Federation, rejected defense motions to dismiss the elder abuse claims, recognizing that failure to treat pain adequately can constitute elder abuse under California law.

Kathryn Tucker, director of legal affairs for the Portland, OR-based advocacy group, explained that if successful at trial, the plaintiffs will be able to recover damages for Bergman’s pain and suffering, which wouldnÕt be recoverable under a medical malpractice claim. The plaintiffs will also be able to recover attorneys’ fees and avoid the cap on damages in the medical malpractice statute, according to a release.

“This exposes the defendant medical providers to significantly greater financial risk,” said Tucker in a release. “The family and Compassion in Dying hope that with significant exposure for inadequate pain care, providers will be motivated to be more attentive to pain and work to see that it is treated properly.”

The case, according to Compassion in Dying, involves care provided to William Bergman, an 85-year-old Californian dying of lung cancer. Bergman was admitted to Eden Medical Center in Northern California complaining of intolerable pain. He spent five days in the hospital, where he was treated by a physician, Dr. Wing Chin.

Nurses charted pain levels ranging from 7-10 on a 10-point scale throughout the hospital stay. The patient was given subtherapeutic doses (25 mg) of demerol, a drug which itself is inappropriate for cancer patients, according to Tucker.

Bergman was discharged to die at home, still in agony, the release said. He was discharged with a prescription for vicodin, which also was not effective and was in fact the medication he was on when he entered the hospital, Tucker told His family ultimately got another physician to prescribe morphine, and Bergman finally obtained relief for one day, Tucker said. He died the next day.

The surviving family filed a complaint with the Medical Board of California, which investigated and concluded that “the pain care was indeed inadequate,” yet declined to take any action. The family then filed suit in California state court asserting medical malpractice and elder abuse. The defendant physician and hospital repeatedly asked the court to dismiss the elder abuse claims, arguing that the plaintiffs were entitled only to the remedies available from a medical malpractice claim.

The plaintiffs argued that the conduct in the care of Bergman was more than malpractice and constituted reckless neglect, making the remedies under the elder abuse statute available, the release said. The court denied the defense motions to dismiss, allowing the claim for elder abuse to go forward to trial.

If a patient dies, as Bergman did, California law allows for no fiscal responsibility under medical malpractice for pain and suffering, Tucker said. However, this remedy is available under elder abuse provisions.

No nurses have been directly named in the lawsuit, said Tucker. Rather, she said, the targets are the physician and the hospital in its failure to supervise the nursing staff.

Tucker couldnÕt point to a specific potential award in the case, but did note that a similar case in North Carolina resulted in a $15 million award some years ago.

She noted that this is the first time an elder abuse cause of action has been involved in such a case. In fact, she said, accountability to treat pain adequately is a Òfairly new phenomenon.Ó

A trial under the elder abuse claim is expected in March.

Edited by Louis Pilla

History of Elder Abuse Case

June 14, 2001 . . . Undermedicating Called Elder Abuse: Jury Awards $1.5 Million Over Cancer Pain (Associated Press)

June 14, 2000 . . . Doctor found reckless for not relieving pain : $1.5 million jury verdict for family of cancer patient who went home to Hayward to die (San Francisco Chronicle)

February 7, 2000 . . . Lawsuit Alleges Elder Abuse for Inadequate Pain Control (Nurses.Com )

Feb. 3, 2000 . . . Press Release . . . Undertreating Pain Can Amount to Elder Abuse (Compassion in Dying Federation)