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Undertreating Pain Can Amount to Elder Abuse

Compassion in Dying Federation
Press Release
Undertreating Pain Can Amount to Elder Abuse

For Immediate Release
Feb. 3, 2000
Contact: Douglas Ide 503.221.9556

Judge’s Ruling Sends California Case To Trial

In the first case to assert that failure to treat pain adequately is a form of elder abuse, an Alameda County, Calif., court ruling allows the case to proceed to trial.

California Superior Court Judge Barbara Miller rejected defense motions to dismiss the elder abuse claims, recognizing that failure to treat pain adequately can constitute elder abuse under California law.

“This ruling will have a huge impact on end-of-life care, regardless of the outcome of this case,” said Barbara Coombs Lee, Executive Director of Compassion in Dying Federation, which is sponsoring the case. “California medical providers are now on notice, either treat dying patients properly, or risk significant consequences.”

Kathryn Tucker, Director of Legal Affairs for Compassion in Dying Federation, explained that if successful at trial, the plaintiffs will be able to recover damages for Mr. Bergman’s pain and suffering, which would not 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.

“This exposes the defendant medical providers to significantly greater financial risk,” said Ms. Tucker. “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 involves the 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 complaining of intolerable pain. He spent five days in the hospital, where he was treated by Dr. Wing Chin.

Nurses charted pain levels ranging from 7-10 on a 10 point scale, with 10 being the worst pain imaginable, throughout his stay. Mr. Bergman was discharged to die at home, still in agony. His family ultimately got another physician to prescribe pain medication, and Mr. Bergman finally obtained relief. 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 limited remedies available from a medical malpractice claim.

The plaintiffs argued that the conduct in the care of Mr. Bergman was more 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.

A trial under the elder abuse claim is expected in March 2000.

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)