When I come across precedent setting Health Care ethics cases, I thought I would share this here:
Jury Awards $1.5 M in Pain Case
BERKELEY, Calif. (AP) — A jury awarded $1.5 million to the family of an 85-year-old man who accused his doctor of not prescribing enough pain medication during his final days. The verdict could be a turning point in the way physicians treat pain, medical ethicists said.
"Any thought that people will not be able to prove lawsuits based on undertreatment of pain is misplaced. It's a false comfort," said Sandra Johnson, an attorney, law professor and provost of Saint Louis University. She is chairwoman of the center for Health Care Law and Ethics.
"These lawsuits can succeed. It's not a flash in the pan; It's something I expect to see much more frequently, where the only loss to the patient is pain and suffering," Johnson said.
She said she knew of only one similar case, a $15 million judgment against a nursing home in North Carolina found to be negligent for not giving enough pain medication to a man dying of cancer.
A California bioethicist says the award marks a turning point.
"This case is the case that now says juries are prepared to hold physicians and acute care hospitals accountable for failure to properly manage pain," said Ben Rich, a University of California, Davis professor of bioethics.
The Alameda County jury ruled Wednesday that Dr. Wing Chin did not do enough to alleviate the pain of lung cancer patient William Bergman, a retired railroad worker who died in 1998.
California law sets a cap of $250,000 on such judgments, meaning the award likely will be reduced.
"It's not really the money we were after," said his daughter, Beverly Bergman. "We were after trying to get things changed and not having to have anybody go through what my father did again."
The Bergmans sued under California's elder abuse statute. Barbara Coombs Lee, president of Compassion in Dying, an advocacy group that helped bring the lawsuit, said it was believed to be the first successful case charging a doctor with failing to administer sufficient pain medication under that law.
Steve Heilig, a bioethicist and director of public health and education for the San Francisco Medical Society, said the verdict sets "an interesting precedent in that, historically, the medical boards, including in California, have pursued (penalties for) overmedication of pain. In this case, they're reversing the standard, as it were, to undermedication.
"My personal perspective is that there's merit in that," Heilig said. "Undermedication of pain is a big problem."
Jurors found elder abuse and recklessness in the case. However, they deadlocked on questions of whether Chin had acted with malice or had intentionally caused emotional distress. As a result, no punitive damages were considered.
Chin declined comment after the verdict. His attorney, Bob Slattery, said the award may be appealed.
During the trial, the defense said it was not clear Bergman had cancer. Defense lawyers said Chin did not prescribe morphine for pain because Bergman had an adverse reaction to the drug when he first was taken to the hospital emergency room.
Kathryn Tucker, lawyer for the Bergmans, said Bergman had a tumor in his lung and abundant cancer symptoms. She said the family didn't want a biopsy performed because they thought Bergman was too frail for invasive surgery.
A spokeswoman for Eden Medical Center, the hospital where Chin has had medical privileges for more than 30 years, said the verdict was "surprising to the people who know him. Dr. Chin has devoted his entire career to caring for patients and most of them are seniors and therefore it's difficult for those who know and work with him to accept the verdict."
Bergman's family filed a complaint with the California Medical Board, but the board took no action, saying it did not find convincing evidence of a violation of the medical practice act.
Now being this has been a Hot button Topic in Florida legislature, capping the costs and recovery from Nursing Home Lawsuits and Lawyers, which I am split on, this seems pinnacle. We have a situation where residents who in fact do suffer extreme abuse and neglect, due to poor quality care and poor staffing, at the same time the "Lawsuit Industry" provides a viable alternative it also is forcing closures and bankruptcies. In the end one big law firm and one family may find justice but what of the others? The Trial Lawyers needed to be capped, but in Florida they were debating of the right to sue in addition.I don't believe in taking away the right of the patient or family to sue, but at the same time there must be some limit. I do not see how this type of litigation benefits the masses...
[ June 17, 2001: Message edited by: Chellyse66 ]